Introduction
Postponement applications in proceedings before the Commission for Conciliation, Mediation and Arbitration (“CCMA”) remain a critical procedural tool, yet their practical application can at times be inconsistent with both the governing rules and established Labour Court jurisprudence.
In a recent matter handled by our firm, an arbitration was set down before the CCMA. However, the matter was complicated by the existence of a pending review application in the Labour Court, challenging a prior joinder ruling made by the CCMA. The basis of the review was that the joinder ruling failed to comply with the CCMA Rules, thereby raising a jurisdictional issue.
Rule 23 of the CCMA
Postponements in the CCMA are governed by Rule 23 of the CCMA Rules. The rule provides for two primary mechanisms through which a matter may be postponed:
- Where both parties consent to a postponement and submit a written request to the CCMA; or
- Where there is no agreement, the requesting party must bring a formal application demonstrating good cause.
The rules are clear in the absence of agreement, a properly motivated application must be brought before the presiding commissioner, who is then required to exercise a discretion based on fairness and the interests of justice.
Our client instructed us to bring a postponement application pending the finalisation of the review. It is important to mention that the pending review application in the Labour Court is unopposed and the opposing party confirmed on record that they held no instructions to oppose the review. Thus, there were strong prospect of success and continuing with the arbitration in these circumstances risked undermining the effectiveness of the review proceedings.
Despite the postponement application being properly before the CCMA, the presiding Arbitrator took the view that:
- The CCMA lacked jurisdiction to postpone proceedings in circumstances where a review application was pending; and
- The appropriate course was for the applicant to approach the Labour Court to obtain an order staying the arbitration proceedings.
This approach stands in contrast to the position adopted by the Labour Court in matters such as Workforce Group (Pty) Ltd v CCMA and Others, where the Court criticised a litigant for failing to first seek a postponement at the CCMA before approaching the Labour Court for relief.
The Court made it clear that:
- There is nothing in the CCMA Rules preventing a commissioner from postponing arbitration proceedings pending the outcome of a review application;
- Commissioners retain a discretion to manage proceedings in a manner that is fair and efficient; and
- Parties are generally expected to exhaust remedies within the CCMA before seeking intervention from the Labour Court. On this basis, the postponement application was dismissed.
Analysis
The tension between the commissioner’s ruling and Labour Court jurisprudence is noteworthy.
On a proper interpretation of the CCMA Rules and case law:
- A commissioner does have the authority to grant a postponement where good cause is shown;
- The existence of a pending review, particularly one raising jurisdictional issue, can constitute compelling grounds for postponement; and
- Refusing to entertain such an application on the basis of “lack of jurisdiction” appears to be a misdirection.
This is especially so where:
- The application is procedurally compliant;
- The opposing party does not suffer material prejudice; and
- The outcome of the review may fundamentally alter the arbitration proceedings.
Consequences
The dismissal of the postponement application had significant consequences for our client, who was ultimately compelled to:
- Launch an urgent application in the Labour Court to stay the arbitration proceedings;
- Incur additional legal costs; and
- Face unnecessary procedural duplication.
What is particularly striking is that, despite bringing a postponement application strictly in accordance with the CCMA Rules—and in circumstances supported by Labour Court authority—the commissioner declined to exercise discretion on the basis of an alleged lack of jurisdiction.
This raises important concerns regarding:
- The consistent application of procedural rules;
- The scope of commissioners’ discretionary powers; and
- The alignment between CCMA practice and Labour Court jurisprudence.
Ultimately, this experience underscores the importance for practitioners to not only comply with the rules but also be prepared to escalate matters to the Labour Court where necessary, even in circumstances where the CCMA ought, in principle, to be able to grant appropriate relief.
It also highlights a broader issue: the need for greater clarity and consistency in the handling of postponement applications, particularly where parallel review proceedings are pending.
