A point In Limine is a preliminary point that the CCMA, of its own, or a party may raise either to challenge the CCMA’s jurisdiction to deal with the referred dispute or on any other point such a party’s representation at the proceedings. For example, in a dismissal dispute the CCMA or a party may raise the point that the referring party filed the dismissal dispute outside of the 30-day prescribed referral period and that the CCMA lacks jurisdiction to deal with the dispute until the late referral has been condoned. In the absence of such condonation, the CCMA will lack jurisdiction to deal with the dispute. Or, as referred to above, a party may argue that, according to the CCMA Rules, an opposing party is not entitled to be represented by the party representing it at those proceedings.
An In limine hearing is scheduled to take place before the merits of the main issue in dispute can be heard. This is a hearing that is held to address any queries or technical legal points, which are raised by the parties before getting into the facts of the issue in dispute.
Ordinarily, the CCMA schedules an In limine hearing after it has received an application and a reply to the application from a respondent party. This hearing is intended to give the parties opportunity to present any necessary evidence and argument for and against the merits of that application. The CCMA may, depending on its assessment, allocate these applications to be heard by commissioners on papers, based on the written submissions of the parties, without the need of the parties attending the hearing. In an In limine hearing a party has automatic right to legal representation without the need to apply for such representation.
In some instances, a preliminary point may be raised for the first time by one of the parties to a dispute at a scheduled hearing, such as a conciliation or arbitration, without an application on that point having been filed. In that situation the commissioner presiding in that hearing will guide the parties on how best to deal with the point raised, whether by directing the parties to address him/her there and then to enable his/her decision on the matter or directing that the parties file their written submission on the issue before deciding on the point. Importantly, a commissioner will be guided by the need to deal with the issue with the minimum of legal formalities while ensuring that the parties are given proper opportunity to be heard on the issue raised.
Upon determination of that preliminary point, whether by way of a hearing or through consideration of the parties’ written submissions, a commissioner will issue a ruling on the matter. This ruling is binding on the parties and settles that preliminary point, unless set aside by the Labour Court on review.
Proceedings that may be dealt with by way of In limine hearings include applications including those of condonation, variation, rescission, joinder, postponement, geographic jurisdiction, whether the matter is one that the CCMA or Bargaining Council has the jurisdiction to determine, substitution, and representation.