At its very nature, concluded pre-arbitration minutes are signed agreements. They are beneficial in the arbitration process as they clarify issues in dispute, set crucial deadlines, encourage efficiency and transparency and assist the commissioner. Once parties sign and file these pre-arbitration minutes, it is ordinarily accepted that parties may not deviate from this agreement. There have been instances where parties enter into these agreements and seek to amend these agreements during the arbitration proceedings.

This article now considers whether pre-arbitration minutes can be amended once filed, and the scope of a commissioner’s powers in this regard. To illustrate these issues, we turn to an important judgment.

In Alexkor Ltd v Mervyn Carstens, the parties had concluded and signed a pre-arbitration minute. After appointing new attorneys, the company sought to have the minutes set aside, arguing that they were inaccurate and that its previous attorneys had not been mandated to conclude them. The presiding commissioner dismissed the application.

The company then approached the Labour Court, seeking the minutes to be declared invalid and set aside. The Labour Court, however, held that:

• Pre-arbitration minutes concluded between parties remain binding.
• The validity of such minutes is a matter for the Labour Court, not the CCMA.
• The court itself could not interfere with a concluded pre-arbitration minute.

The application was dismissed, and the Labour Appeal Court upheld the decision.

The Powers of Commissioners

The authority of commissioners is clearly defined in section 142 of the Labour Relations Act (LRA). Commissioners are required to act strictly within the provisions of the LRA and the CCMA Code of Conduct. This means that:

• Commissioners cannot perform functions beyond the scope of their statutory powers.
• They do not have the authority to amend a binding pre-arbitration minute that the parties have voluntarily signed.
• Any attempt to do so would amount to acting ultra vires.

The Alexkor judgment reaffirms the binding nature of pre-arbitration minutes and clarifies that once signed, these minutes carry legal weight and remain in force. For this reason, parties should approach pre-arbitration minutes with diligence.

Tips:

• Treat pre-arbitration minutes as binding agreements.

Once signed, pre-arbitration minutes carry legal weight and cannot simply be amended during arbitration. Employers must ensure that they fully understand and agree to the content before signing, as later challenges are unlikely to succeed.

• Prepare thoroughly before concluding pre-arbitration minutes.

Because commissioners lack the authority to alter these agreements, employers should approach the process with diligence, verify mandates, check accuracy, and confirm alignment with the case strategy. This prevents costly disputes and procedural setbacks later on.

Written by Thina Madubela, Dispute Resolution Official, CEO SA