The competitiveness of the Conciliation Mediation and Arbitration Commission (CMAC) Alternative Dispute Resolution (ADR) services is best measured in the SADAC context. We therefore invite the reader to consider this analysis and then make their own judgment on whether CMAC is leading the SADC pack or acting the underdog.
The SADC ADR industry in SADC was to a large extent a baby of the ILO under what was then known as the ILLSA Project which was largely responsible for the establishment of CMAC and her SADC counterparts.
Justice Khabo (2008), observes in his paper on collective bargaining within SADC that the structures which are in place in various SADC countries are South African Commission for Conciliation, Mediation and Arbitration (CCMA) which was established under the Labour Relations Act of 1995; the Lesotho, the Directorate of Dispute Prevention and Resolution (DDPR), established under the Labour Code (Amendment) Act 2000; CMAC was established under the Industrial Relations Act 2000.
In Namibia, Conciliation, Mediation and Arbitration services are undertaken by the Department of labour under the New Labour Act 11 of 2007. Botswana has a similar arrangement as Namibia and Lesotho, with their Conciliation, Mediation and Arbitration system operating under the Labour Departments of those Countries.
Whist CMAC has 8 full time and 6 part-time Commissioners, South Africa has 130 Commissioners, Namibia has 20 Commissioners and Lesotho has more or less the same number as Swaziland.
Commenting on the performance of these Commissioners- most of whom are Attorneys - Justice Khabo also states that while the alternative dispute resolution process should ordinarily take less than 10 weeks, “this timing has proved largely unattainable” in SADC. He further states that both the courts and the ADR mechanisms have serious backlogs sometimes caused by the litigants themselves.
Though caseload data is not readily available, whilst, Swaziland receives about 6000 enquiries per year and Namibia about 2444, Rees and Verijs (2008) report that the CCMA received 17,000 calls in the financial year 2006/7; In 2009/10 the calls had quadrupled to 172, 481.All of these jurisdictions run their ADP process on a common Case Management System (CMS) originally developed by CCMA. Annually, CMAC captures about 1400 cases onto the CMS and Namibia captures 2444 cases. 153,665 cases were referred to CCMA in that period; 116,002 of these handled under the conciliation process. The Lesotho Country Governance Profile (2006) by the African Development Bank recorded that in 2004, the Department of Dispute Prevention and Resolution resolved 1864 of the 1995 cases that were referred to it for resolution (93%).
Of all the cases captured onto the CMS, the highest standard within SADC is that 90% of these cases should be processed to finality. Swaziland currently processes 98% and Namibia 66%. The CCMA Annual Report 2009/10 indicates that against the standard of a 90% Processing Rate, 91% of the conciliations reported are processed.
Swaziland has the highest standard for conclusion of conciliation cases. Each Commissioner is supposed to finalise conciliation within 21 days. According to Musukubili (2009) the Namibian Labour Act, 2007 (Act No. 11 of 2007) prescribes that a conciliator must attempt to resolve the dispute within 30 days of referral. Against the standard of 30 days, CCMA conciliations are finalised on an average turnaround time of 27 days. Botswana legislation does not provide for Conciliation. It would appear that their Mediation is what is called Conciliation in other jurisdictions. CCMA non-jurisdictional cases only amount to 22% of the cases referred to CCMA. Botswana does uses the term mediation in place of the term conciliation as it is generally referred to in SADC. According to Section 8 of the Botswana Trade Disputes Act 2003, labour mediators have to attempt to resolve matters referred to them within 30 days
Another indicator for an effective ADR system is the number of cases where parties agree on some kind of settlement after conciliation. These are called Conciliation Settlement. This sometime involves the offer and acceptance of cash.
Against the settlement standard of 70%, CCMA conciliations reach 65%. The South African standard is the highest standard in SADC. Swaziland settlements are currently at 53% and Namibian settlements at 66% according to their 2010 Annual Report.
CCMA handles 48138 Arbitration cases a year. This is the highest in SDC followed by Namibia at 424 and Swaziland trailing behind at 139, largely because employers prefer to take their labour cases to the Industrial Court after issuance of Certificates of Unresolved Dispute at conciliation.
Swaziland has the highest standard for concluding a case – 45 days. Currently Swaziland performs beyond this standard. To conclude a single arbitration case, the Swazi Commissioners take an average of 38 days. South Africa Commissioners take 39 days. According to Section 9 of the Botswana Trade Disputes Act 2003, arbitrators have to attempt to resolve matters referred to them within 30 days. According to a 2011 communiqué from CCMA, the law requires them to set down arbitration within 90 days of referral and issue and award with 14 days from the last hearing date. In Namibia, neither the Labour Act nor the Arbitration Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner stipulate a time-frame within which arbitration should be concluded. The number of Arbitration cases handled by the CCMA is 48,138. Settlement at Arbitration level is 38%. Against the standard of 60 days, CCMA arbitrations are finalised on an average turnaround time of 39 days.
The time in which a Commissioner concludes a case is also monitored. The highest standard within SADC is the South African standard which is 14 days. The Swaziland Standard is 21 days which the Commissioners are able to achieve.