| 35. | Condonation for failure to comply with the Rules and form |
| (1) | Subject to sub-rule (3), the Council or a commissioner may condone any failure to comply with any provision of these Rules, on good cause shown. |
| (2) | In exercising its powers and performing its functions the Commission may act in such a manner as it deems expedient in the circumstances in order to achieve the objects of the Act. In doing so it shall have regard to substance rather than form, save where the Act provides otherwise. |
| (3) | The provisions of this Rule do not apply to Rule 25. |
| 36. | Recordings of Council proceedings |
| (1) | The Council must keep a record of— |
| (a) | all processes except conciliations, unless otherwise stated in these Rules; |
| (b) | any arbitration award or ruling made by a commissioner. |
| (2) | The record must be kept by means of a digital recording and, if practically possible, also by legible notes. |
| (3) | A party may request a copy of the record or a portion of a record kept in terms of sub-rule (2), on payment of the costs where applicable. |
| 37. | How to have a subpoena issued and served |
| (1) | Any party who requires the Council or a commissioner to subpoena a person in terms of Section 142(1) of the Act,must file a completed Council's LRA Form 7.16 together with a written motivation setting out why the evidence of the person to be subpoenaed is necessary. |
| (2) | A party requesting the Council to waive the requirement for the party to pay witness fees in terms of Section 142(7)(c) must set out the reasons for the request in writing at the time of requesting the Council to issue a subpoena in respect of that witness. The Council's decision must be made in writing and delivered when issuing the subpoena. |
| (3) | An application in terms of sub-rule (1) must be filed with the Council at least fourteen (14) days prior to the arbitration hearing, or as directed by the commissioner hearing the arbitration. |
| (4) | The Council may refuse to issue a subpoena if— |
| (a) | the party does not establish why the evidence of the person is necessary; |
| (b) | the party subpoenaed does not have seven (7) days in which to comply with the subpoena; |
| (c) | not satisfied that the party requesting the subpoena has paid the prescribed witness fees, reasonable travel costs and/or subsistence expenses of the person subpoenaed. |
| (5) | A subpoena must be served: |
| (a) | by the person who has requested the issuing of the subpoena or by the Sheriff, at least seven (7) days prior to the scheduled date of the arbitration by; |
| (b) | by delivering a copy of it to the person subpoenaed personally; |
| (c) | by sending a copy of it by registered post to the subpoenaed person's— |
| (ii) | place of business or employment; or |
| (iii) | post office box or private bag number; |
| (d) | by leaving a copy of it at the subpoenaed person's place of residence or place of business or employment with a person who apparently is at least sixteen (16) years of age and is residing or employed there. |
| (6) | Service of a subpoena must be accompanied by proof of payment of the prescribed witness fees for one day in accordance with the tariff of allowances published by notice in the Government Gazette in terms of Section 142(7) of the Act and the witnesses' reasonable travel costs and subsistence expenses. |
| (7) | Sub-rules (4)(c) and (5)(b) do not apply if the Council, in terms of Section 142(7)(c), has waived the requirement to pay witness fees. |
A party intending to call an expert witness shall give seven (7) days, prior to the hearing, notice thereof to the Council and the other party to the dispute together with a summary of the proposed evidence of such witness, any document on which the witness will rely during evidence and the basis on which the witness is regarded to be an expert to enable the other party to consider the summary and obviate the need for any postponement.
| 38. | Payment of witness fees |
| (1) | A witness subpoenaed in any proceedings in the Council must be paid a witness fee in accordance with the tariff of allowances published by notice in the Government Gazette in terms of Section 142(7) of the Act. |
| (2) | The witness fee must be paid by— |
| (a) | the party who requested the Council to issue the subpoena; or |
| (b) | the Council, if the issuing of the subpoena was not requested by a party or if the Council waives the requirement to pay witness fees in terms of Section 142(7)(c) . |
| (3) | Despite sub-rule (1), the commissioner may, in appropriate circumstances, order that a witness receives no fee0r reasonable travel costs and subsistence expenses or only part of such fees or expenses. |
| 39. | Order of costs in an arbitration |
| (1) | In any arbitration proceedings, the commissioner may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regard to— |
| (a) | the measure of success that the parties achieved; |
| (b) | considerations of fairness that weigh in favour of or against granting a cost order; |
| (c) | any with prejudice offers that were made with a view to settling the dispute; |
| (d) | whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner |
| (i) | by proceeding with or defending the dispute in the arbitration proceedings, or |
| (ii) | in its conduct during the arbitration proceedings; |
| (e) | the effect that a cost order may have on a continued employment relationship; |
| (f) | any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded; |
| (g) | the importance of the issues raised during the arbitration to the parties as well as to the labour community at large; |
| (h) | any other relevant factor. |
| (2) | A commissioner may make an award of costs in favour of a party who appears or is represented in arbitration by a person contemplated in rule 25(1)(a) in respect of reasonable disbursements actually incurred in the conduct of its case in the arbitration. A commissioner who makes an award in terms of this provision must specify clearly the items and amounts in respect of which costs are ordered. |
| (3) | A commissioner may make an award of costs in respect of the legal fees of a party that is represented in an arbitration by a legal practitioner or candidate attorney, only if the other parties to the arbitration were represented by a legal practitioner or candidate attorney. |
| (4) | An award for costs in terms of sub-rule (3) must be in the amount of— |
| (a) | in respect of the first day of an arbitration (including any arbitration concluded in a single hearing) - R7 000-00 (VAT inclusive); |
| (b) | in respect of each additional day of an arbitration - R4 700-00 (VAT inclusive). |
| (5) | An award for costs in respect of a candidate attorney must be 50 percent of the amount set out in sub-rule (4). |
| 40. | Certification and enforcement of arbitration awards |
| (1) | An application to have an arbitration award certified must be made on— |
| (a) | LRA Form 7.18 in respect of an award by a commissioner; |
| (b) | LRA Form 7.18A in respect of an award in arbitration conducted under the auspices of a bargaining council. |
| (2) | Any arbitration award that has been certified in terms of Section 143 of the Act that— |
| (a) | orders the payment of an amount of money may be enforced by execution against the property of the employer party by the Sheriff of the court in the Magisterial district where the employer party resides, or conducts business; |
| (b) | orders the performance of an act other than the payment of money may be enforced by way of contempt proceedings instituted in the Labour Court. |
| (3) | For the purposes of sub-rule (2), an arbitration award includes an award of costs in terms of Section 138(10), a taxed bill of costs in respect of an award of costs and an arbitration fee charged in terms of Section 140(2). |
| (4) | The amount of money that may be enforced through execution by the Sheriff in terms of this Rule includes— |
| (a) | The amount that is ordered to be paid in terms of the award; |
| (b) | Any interest on that amount calculated in terms of section 143(2); |
| (c) | The Sheriff's costs permitted in terms of the Magistrate's Court Tariff for Sheriffs. |
| (5) | In the event that the CCMA financially assisted the party in whose favour the award was granted in the enforcement or execution thereof, the CCMA may, if the costs of the execution were not realized therein, collect such costs, with interest, directly from the defaulting party. |
| 40A | Payment of an arbitration fee ordered in terms of section 140 of the Act |
| (1) | Where the commissioner, having found that the dismissal was procedurally unfair, orders payment of an Arbitration fee in terms of 140(1) of the Act: |
| (a) | The arbitration fee shall be the fee set out in the Council's Tariff of Fees, as gazette annually. |
| (b) | The employer must pay the prescribed fee to the Council within 14 (fourteen) days of receipt of the award ordering payment of such a fee. |
| (c) | Payment of the fee may only be made by— |
| (i) | bank guaranteed cheque, delivered to any of the Council's offices; or |
| (ii) | electronic transfer into the bank account of the Council |
