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[2020] ZALAC 36
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Sasol South Africa (Pty) Ltd v Nkosi and Another (JA124/2018) [2020] ZALAC 36; (2020) 41 ILJ 2608 (LAC) (15 July 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA124/2018
In
the matter between:
SASOL
SOUTH AFRICA (PTY) LTD
Appellant
and
GODFREY
JABULANI NKOSI
First Respondent
NATIONAL
BARGAINING COUNCIL
FOR
THE CHEMICAL INDUSTRY
Second
Respondent
Heard:
7 May 2020
Delivered:
15 July
2020
Coram:
Waglay JP, Jappie JA
and Savage AJA
Judgment
SAVAGE
AJA
[1]
This appeal,
with the leave of this Court granted on petition, is against the
refusal of the Labour Court (Sedile AJ) on 24 August
2018 to set
aside a subpoena
duces
tecum
issued by the National Bargaining Council for the Chemical Industry
(‘NBCCI’). The subpoena, issued at the instance
of the
first respondent, Mr Godfrey Jabulani Nkosi (‘the employee’),
directed two employees of the human resources
department of the
appellant, Sasol South Africa (Pty) Ltd, to attend at arbitration
proceedings held under the auspices of the
NBCCI and produce
documentation relating to bonuses and increases received by three
other of the appellant’s employees in
2015.
[2]
The employee
lodged an unfair labour practice against the appellant relating to
his performance bonus and salary increase. Before
the dispute could
be arbitrated, he caused the subpoena to be issued. On 6 June
2016, the appellant brought an application
in the Labour Court to set
aside the subpoena on the basis that it was invalid and an abuse of
process. The Labour Court dismissed
the application finding that the
appellant should have raised its objections to the subpoena with the
arbitrator before approaching
the Court and that the subpoena ought
not to be set aside. The matter was referred back to the NBCCI for
the arbitration to proceed.
[3]
On appeal, the
appellant contends that the Labour Court erred in finding that an
objection to the subpoena should have been
raised at
arbitration since the NBCCI lacks statutory authority to set aside a
subpoena issued by it, nor enjoys the inherent jurisdiction
to do so.
In addition, the information sought relating to performance ratings
and bonuses paid to other employees is confidential,
alternatively
should have been sought by the issue of a subpoena against the
individual employees directly. The appellant submits
further that the
issue of the subpoena constituted an abuse of process in that
performance ratings and salaries are individual
in nature; the
information could have been obtained using discovery procedures under
rule 29(1) of the Rules of the NBCCI; and
the subpoena
duces
tecum
should only be issued against third parties. Moreover, no witness
fees were paid by the employee as required by s 142(7)(
b
)
of the Labour Relations Act 66 of 1995 (LRA) read with rules 37 and
38 of the NBCCI Rules and the issue of a subpoena was inappropriate
since the employee failed to exhaust internal remedies available to
him.
Discussion
[4]
The
power
to issue a subpoena is derived from the LRA. It provides, in s
142(1)(
b
),
for
inter
alia
the issue of a subpoena
duces
tecum
against ‘
any
person who is believed to have possession or control of any book,
document or object relevant to the resolution of the dispute,
to
appear before the commissioner to be questioned or to produce that
book, document or object
’.
This Court in
Mogwele
Waste (Pty) Ltd v Brynard
(
Mogwele
)
[1]
made it clear that:
‘…
a
litigant is entitled to obtain the production of any document
relevant to his or her case in the pursuit of the truth, unless
the
disclosure of the document is protected by law. The process of
a
subpoena
is
designed precisely to protect that right. The ends of justice would
be prejudiced if that right was impeded. For this reason
the Court
must be cautious in exercising its power to set aside a
subpoena
on
the grounds that it constitutes an abuse of process.’
[5]
A
subpoena
duces
tecum
must, however, have a legitimate purpose and may be set aside by the
Labour Court
inter
alia
where the issue of the subpoena constituted an abuse of process
having regard to the circumstances of the case.
[2]
Such an abuse may include where the subpoena is intended to be used
for an extraneous purpose.
[3]
[6]
In his
application for the issue of the subpoena, the employee detailed the
documents which he sought to have produced and which,
on the face of
it, have some relation to his unfair labour practice claim. He made
clear that his intention in seeking the documents
which are the
subject of the subpoena is not to know the salaries of the three
employees in respect of whom documentation is sought
and that the
arbitrator could ‘
view
the documents
[in]
my absence
to ensure confidentiality of their salaries
’.
He also acknowledged his liability to pay witness fees, if required.
[7]
Rule 29 of the
NBCCI Rules, allows a panelist to order the disclosure of relevant
documents. It
does not oblige a
party to make use of the rule before applying for the issue of a
subpoena under rule 37. In addition, rule 37
does not require rule 29
to have been relied upon before a subpoena is issued. It also does
not restrict the issue of a subpoena
against only third parties who
are not a party to the dispute being determined at arbitration.
[8]
The resolution of labour disputes at
arbitration is intended to be an expedited process, efficient and
cost-effective. Rules and
procedures are aimed at avoiding cost and
delay, so as to achieve a fair and equitable resolution of a dispute,
rather than creating
barriers and delay in the dispute resolution
process. The rules governing the arbitration process are distinct
from those which
govern trials in the Labour Court. At arbitration,
there is no formal discovery process and there is no bar on obtaining
the issue
of a subpoena
duces tecum
rather than awaiting the decision of the arbitrator at arbitration to
order documents be disclosed with the inevitable delays that
this may
cause. The implication of the election to obtain a subpoena is one of
cost in that witness fees, unless waived, are to
be paid by the party
obtaining the subpoena.
The
fact that a subpoena
duces
tecum
has
been issued does not make the documents produced either admissible or
relevant. The other party retains its rights to object
to the
disclosure, relevance and admissibility of such documents, in which
event the arbitrator is required to make a ruling on
such objections
raised.
[9]
This
Court in
Mogwele
Waste (Pty) Ltd v Brynard
(
Mogwele
)
[4]
found, in the
failure to compel discovery and cause rather that a
subpoena
be issued, that the respondent had denied the appellant the right to
object to the discovery of the financial documents in
a pre-trial
process. The current matter is distinguishable from
Mogwele
in
that the same pre-trial processes designed to provide a mechanism to
resolve documentary disputes between parties at the pre-trial
stage
of the proceedings did not apply at arbitration. The employee cannot
be said to have acted prematurely in electing to seek
the issue of a
subpoena, nor is there support for the appellant’s contention
that the subpoena was obtained for a purpose
intended to cause
prejudice to the appellant
[5]
or
that its issue amounted to an abuse of process. In such
circumstances, there is no reason why the subpoena should be set
aside
and in arriving at this conclusion, albeit for different
reasons, the Labour Court did not err.
[10]
For these reasons, the appeal
falls to be dismissed. With the matter unopposed, no order as to
costs is made.
Order
[11]
The following order is made:
1.
The appeal is dismissed.
_____________________
Savage
AJA
Waglay
JP and Jappie JA agree.
Matter
determined under Covid-19 directions
:
APPEARANCES:
FOR
THE APPELLANT:
Fluxmans Inc.
FOR
THE FIRST RESPONDENT: No opposition
[1]
(2016)
37 ILJ 2051 (LAC) at para 17.
[2]
Beinash
v Wixley
[1997]
ZASCA 32
;
1997
(3) SA 721
(SCA)
at 738H–739B.
[3]
Ibid.
[4]
(2016)
37 ILJ 2051 (LAC) at para 16.
[5]
See
Standard
Credit Corporation Ltd v Bester and Others,
1987
(1) SA 812
(W)
at 820A-B.