| (22) | The purpose of stage 2 is to deal with any preliminary issues that may arise. These may include applications for condonation, objections to jurisdiction as well as applications dealing with issues such as legal representation, 8 the discovery of documents or the recusal of the arbitrator. The arbitrator does this by— |
| (22.1) | asking the parties if they have any preliminary issues to raise; |
| (22.2) | raising any preliminary concerns that the arbitrator may have as a result of reading the referral forms or other documents in the file; |
| (22.3) | explaining the preliminary point to any party who requests clarification; |
| (22.4) | giving the parties an opportunity to lead evidence, if necessary, on any preliminary point raised; |
| (22.5) | inviting each party to argue the preliminary point raised. |
The arbitrator has a duty to confirm that the CCMA has the jurisdiction to hear the dispute irrespective of whether this is raised by the parties.
| (23) | In addition, and whether or not this is raised by either party as a preliminary issue, the arbitrator must check that the parties to the dispute have been properly identified, whether as a natural person, partnership, close corporation, company, or other legal person. If necessary, and after considering any relevant submissions by the parties, the arbitrator should correct the description of any party.9 |
| (24) | The arbitrator should decide the preliminary point before proceeding with the arbitration, unless evidence is required to deal with the preliminary point and it is practicable to hear evidence on the merits at the same time. The arbitrator may make a ruling immediately and should adjourn only if the point raises complex issues that require additional consideration by the arbitrator. The arbitrator need not give reasons for the ruling at the time of the decision provided that the reasons are contained in the final award. However, if the preliminary point resolves the dispute, the arbitrator must issue an award reflecting the reasons for upholding the point and the relevant facts upon which the decision was based. |
| (25) | An application by any party to have legal representation or a request by the parties that the arbitrator consent to legal representation should be dealt with at this stage in terms of Rule 25 of the Rules for the Conduct of Proceedings before the CCMA. As such an application forms part of the arbitration proceedings, it must be initiated by the party making it. An arbitrator may permit legal representation for specific purposes, for example, to argue a specific preliminary point. A party who does not apply for representation at the outset is not prevented from making an application subsequently during the course of proceedings. An inquiry into whether a person qualifies to represent a party may be made at this stage or at any stage in which the issue arises during proceedings. |
| 8 | In CCMA & others v Law Society of the Northern Provinces (Incorporated as the Law Society of the Transvaal), Commission for Conciliation, Mediation & Arbitration (SCA), the Supreme Court of Appeal held that rule 25 regulating the representation of parties by legal representatives in an arbitration was not unconstitutional. |
| 9 | Lambrecht v Pienaar Bros (Pty) Ltd (LC) at paras 6-15. |
