Carephone v Marcus NO and others (JA52/98) [1998] ZALAC 11 (1 September 1998)

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[1998] ZALAC 11
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Carephone v Marcus NO and others (JA52/98) [1998] ZALAC 11; 1999 (3) SA 304 (LAC) (1 September 1998)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number: JA 52/98
In the matter between
CAREPHONE (PTY) LTD
Appellant
AND
MARCUS N O
First Respondent
CARLYSLE-MCCALLUM & SEVEN OTHERS
Second to Ninth
Respondents
THE COMMISSION FOR CONCILIATION MEDIATION
Tenth Respondent
AND ARBITRATION
JUDGMENT
FRONEMAN DJP.
Introduction.
[1] The vast majority of labour disputes, if not successfully
conciliated in terms of the Labour Relations Act 66 of 1995 (“the
LRA”), end up in compulsory arbitration before the Commission for
Conciliation, Mediation and Arbitration (“the Commission”).

Arbitration is intended to dispose of a dispute finally ( s 143(1)
of the LRA). Where arbitration is consensual the rationale
for this
finality, without the further intervention of a court of law, is
understandable (
Amalgamated Clothing and Textile Workers Union v
Veldspun Ltd
[1993] ZASCA 158
;
1994 (1) SA 162
(A) at 169G-H ). In the case of
compulsory statutory arbitration the failure to provide for further
legal redress may be perceived
as unsatisfactory by a losing party.
The LRA does not provide for any appeal against an arbitration award
made by a commissioner
exercising the Commission’s functions of
arbitration in terms of the LRA. It does, however, provide for the
review of the award
by the Labour Court in certain circumstances.
[2] The nature and extent of that right to review is the legal issue
to be addressed in this appeal.
[3] The facts giving rise to the application for review in the
Labour Court before Mlambo, J will be dealt with in greater detail
later in this judgment. Suffice to state at this stage that what
was sought on review before Mlambo J was the setting aside of
a
commissioner’s award, made in arbitration proceedings under the
auspices of the Commission, in favour of the second to the
ninth
respondents (“the employees”). The appellant was ordered to pay
the employees compensation for their wrongful dismissal.
The
grounds for the review were stated to be the commissioner’s
refusal to grant a postponement of the matter at the request
of the
appellant on three occasions, which resulted in the eventual hearing
of the matter and making of the award in the absence
of the
appellant.
[4] Mlambo J dismissed the review application but granted appellant
leave to appeal against his judgment. In essence he found
that the
facts did not disclose proper grounds for review under s 145 of the
LRA and that he did not have the power to review the
award under s
158(1)(g) of the Act. The latter finding is one on which differing
views have been expressed in decisions of the
Labour Court. (Cf.
Ntshangane v Speciality Metals CC
[1998] 3 BLLR 305
(LC);
Pep
Stores (Pty) Ltd v Laka NO and Others
Case No. J 1011/97 (LC);
Edgars Stores Ltd v Director for Commission for Conciliation
Mediation and Arbitration
[1998] 1 BLLR 34
(LC), with
Deutsch
v Pinto and Another
1997 (18) ILJ 1008 (LC);
Kynoch Feeds
(Pty) Ltd v CCMA and Others
[1998] 4 BLLR 384
(LC);
Rustenburg
Platinum Mines Ltd v CCMA and Others
[1997] 11 BLLR 1475
(LC);
Shoprite Checkers (Pty) Ltd v CCMA and Others
[1998] 5 BLLR
510
(LC); and
Standard Bank of SA Ltd v CCMA and Others
[1998] 6 BLLR 622
(LC)).
Review provisions in the LRA.
[5] The LRA provides for the review of matters under the Labour
Court’s jurisdiction in three sections viz. ss 145, 158(1)(g)
and
158(1)(h). It is convenient to quote them in full:
“
145
Review of arbitration awards
(1) Any party to a dispute who alleges a defect in any
arbitration proceedings under the auspices of the Commission may
apply to
the Labour Court for an order setting aside the arbitration
award-
(a) within six weeks of the date that the award was
served
on the applicant, unless the alleged defect involves corruption; or
(b) if the alleged defect involves corruption, within six weeks
of the date that the applicant discovers the corruption.
(2) A defect referred to in subsection (1), means-
(a) that the commissioner-
(i) committed misconduct in relation to the duties of the
commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the
arbitration proceedings; or
(iii) exceeded the commissioner’s powers; or
(b) that an award has been improperly obtained.
(3) The Labour Court may stay the enforcement of the award
pending its decision.
(4) If the award is set aside, the Labour Court may-
(a) determine the dispute in the manner it considers appropriate;
or
(b) make any order it considers appropriate about the procedures
to be followed to determine the dispute.”
“
158
Powers of the Labour Court.
(1) The Labour Court may
....
(g) despite section 145, review the performance or purported
performance of any function provided for in
this
Act or any
act or omission of any person or body in terms of
this
Act on
any grounds that are permissible in law;
(h) review any decision taken or any act performed by the State
in its capacity as employer, on such grounds as are permissible in
law;”
[6] It should be noted that two of the provisions deal with the
review of specific kinds of functions: s 145 with arbitration under
the auspices of the Commission and s 158 (1)(h) with the review of
actions of the State as employer. If these two sections had
stood
alone there would have been no express provision for the review by
the Labour Court of other administrative functions performed
under
the LRA. Whether that gap could have been filled by reliance on an
inherent right of review, as a (superior) court of law,
is an
interesting and difficult issue which need not be considered
further, because s 158(1)(g) attempts to provide the answer.
[7] The difficulties in determining the proper ambit of operation of
s 158(1)(g) arise mainly from two sources. The first is the
use of
the words “despite section 145” in s 158(1)(g) itself, and the
second is the perception that s 145 provides for a more
restricted
kind of review than that allowed for by the Constitution. Because
of this, some judgments in the Labour Court found
that arbitration
proceedings under the auspices of the Commission should be reviewed
under s. 158(1)(g), thereby effectively bypassing
the provisions of
s. 145. Mlambo, J refused to follow that route.
[8] In order to determine the parameters of the Commission’s
competence in the exercise of its compulsory arbitration function,
and that of the Labour Court in reviewing such an arbitration award
by the Commission, it is necessary to have regard to the provisions
of the LRA against the background of the Constitution (Constitution
of the Republic of South Africa 108 of 1996) ( cf.
SACCAWU v
Speciality Stores Ltd
[1998] 4 BLLR 352
(LAC) paras. 12-14). The
need to do this flows from the provisions of the Constitution
itself: it is the supreme law of the land
and law and conduct
inconsistent with its provisions are invalid (s 2(1)); legislation
and law in force prior to the Constitution
coming into operation
remain valid only insofar as it is consistent with the Constitution
(Item 2(b) of Schedule 6 to the Constitution);
and, in any event,
when interpreting legislation the spirit, purport and objects of the
Bill of Rights in the Constitution should
be promoted ( s 39(2)).
The Constitutional context
[9] The Constitution established a democratic state based, amongst
other values, on the rule of law (s 1(c)) and a multi-party
system
of democratic government to ensure accountability, responsiveness
and openness (s 1(d)). The authority of the State is
found in three
arms of government: the legislative, the executive and the judicial
( ss. 43, 85 and 165). Any public institution
created by the
Constitution or by legislation under its auspices (and there can be
no other way), thus finds its ultimate authority
and competence in
the Constitution and is subject to its provisions (cf.
Executive
Council, Western Cape Legislature and Others v President of the
Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
(1995)
10 BCLR 1289
(CC); at para. 62;
Hugo v President of the Republic
of South Africa and Others
1997 (4) SA 1
(CC);
(1996) 6 BCLR
876
; at paras. 11 and 28).
[10] In terms of s 34 of the Constitution everyone has the right to
have any dispute that can be resolved by the application of
law
decided in a fair public hearing before a court, or where
appropriate, another independent and impartial tribunal or forum.

The LRA created both the Commission and the Labour Courts to resolve
labour disputes, but made the nature and extent of their
respective
competencies quite different.
The Commission
[11] Although the Commission is an independent body with
jurisdiction in all the provinces, it was not created as a court of
law
(ss 112-114 of the LRA, read with ss 165 and 166 of the
Constitution). It thus has no judicial authority in constitutional
terms.
It is, nevertheless, a public institution created by
statute. When it (through duly appointed commissioners - ss 125 and
136
of the LRA) conducts compulsory arbitration in terms of the LRA
this involves the exercise of a public power and function, because
it resolves disputes between parties in terms of the LRA without
needing the consent of the parties. This makes the Commission
an
organ of state in terms of the Constitution (see the definition of
‘organ of state’ in s 239 of the Constitution).
[12] The important implication of this is that the Commission is
bound directly by the Bill of Rights in the Constitution ( s 8(1)
of
the Constitution). It is also subject to the basic values and
principles governing public administration (s 195(2)(b) of the
Constitution).
[13] Parties subject to compulsory arbitration under the
Commission’s auspices are thus entitled to have their fundamental
rights,
as set out in the Bill of Rights, respected in the
arbitration process.
[14] In terms of s 195(1)(d) of the Constitution the service
provided to the parties by the Commission must also be impartial,
fair, equitable and unbiased.
[15] It was contended in argument by Mr Davis, who appeared on
behalf of the Commission, that the Commission’s function of
compulsory
arbitration under the LRA was of a
judicial
nature
and thus did not amount to “administrative action” for the
purpose of the administrative justice section in the Bill
of Rights.
This meant, he said, that the right to just administrative action in
the Bill of Rights ( s. 33 read with Item 23(2)
of Schedule 6 of the
Constitution) did not apply in arbitrations under the Commission’s
auspices. In my view this submission
cannot be upheld.
[16] The relevant section reads as follows:
‘
23(2) Until the legislation
envisaged in sections 32(2) and 33(3) of the new Constitution is
enacted-
....
(b) section 33(1) and (2) must be regarded to read as follows:
“
Every person has the right to-
(a) lawful administrative action where any of their rights or
interests is affected or threatened;
(b) procedurally fair administrative action where any of their
rights or legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative
action which affects any of their rights or interests unless the
reasons
for that action have been made public; and
(d) administrative action which is justifiable in relation to
the reasons given for it where any of their rights is affected or

threatened.”’
[17] The distinction made between judicial, quasi-judicial and
purely administrative functions of the state administration under
the common law, found its historical origins in the need to make the
English common-law writs of certiorari and prohibition applicable
to
acts categorised as quasi-judicial ( Wiechers,
Administrative
Law
, 1985, at 122 and 218). This, in effect, extended the scope
of judicial review, a result which could have been, and eventually
was, reached in South African law without the necessity of relying
on these formal classifications (
Administrator, Transvaal, and
Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 762-763;
Baxter
, Administrative Law
, 1994, at 348). It would be
ironic indeed if they are re-introduced at this stage of the
development of our law to
limit
the scope of judicial review
of administrative action.
[18] The constitutional answer to this submission is that although
the Commission or other organs of state may perform functions
of a
judicial nature they are not courts of law and thus have no
judicial
authority
under the Constitution (ss 165, 166 and 239 of the
Constitution). Their judicial functions do not transform them into
part of
the judicial arm of the State, nor does it make them part of
the judicial process ( cf.
Bernstein and ors v Bester and ors NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC); paras. 95-97).
[19] The substantive answer to the argument is to be found in the
purpose of the administrative justice section of the Bill of
Rights.
That purpose is to extend the values of accountability,
responsiveness and openness to institutions of public power which
might not previously have been subject to those constraints. Courts
of law were in any event always subject to the kind of requirements
set out in the section. It would simply be incongruous to free
other public institutions exercising judicial functions from those
constraints. It is not necessary to seek the origins of those
constraints in other provisions of the Bill of Rights, such as the
access to justice provision (s.34). Administrative action may take
many forms, even if judicial in nature, but the action remains
administrative.
[20] The constitutional imperatives for compulsory arbitration under
the LRA are thus that the process must be fair and equitable;
that
the arbitrator must be impartial and unbiased; that the proceedings
must be lawful and procedurally fair; that the reasons
for the award
must be given publicly and in writing; that the award must be
justifiable in terms of those reasons; and that it
must be
consistent with the fundamental right to fair labour practices.
[21] The provisions of the LRA dealing with arbitration proceedings
are not in conflict with these constitutional requirements.
The
arbitration of labour disputes by an independent body, the
Commission, is permissible in terms of s 34 of the Constitution
(para [10] above). The formal pre-conditions to arbitration are
unobjectionable (ss 136 and 137 of the LRA). The same can be
said
for the general provisions for arbitration proceedings (s 138). In
particular s 138(1) lays down the general requirement
that the
purpose of the proceedings must be to determine the dispute fairly,
albeit also quickly and with the minimum of legal
formalities. A
commissioner must take into account any code of good practice issued
by NEDLAC, or guidelines issued by the Commission
itself in terms of
the LRA (s 138(6)); all indications of adherence to the
constitutional requirements of fairness. A commissioner
is also
obliged to give reasons for the award (s 138(7)(a)) and may make any
appropriate award in terms of the LRA (s 138(9)).
[22] In short, there are no express or implied provisions in the LRA
to suggest that the powers of a commissioner in compulsory
arbitration under the LRA may exceed the constitutional constraints
on those powers or may be given in conflict with constitutional
values. It would have been surprising had there been any such
provisions, given that the LRA is a piece of legislation emanating
from the new constitutional order (under the interim Constitution)
and that it seeks to promote the specific and general provisions
of
the new order (s 1(a) and 3(b) of the LRA).
The Labour Court
[23] The Constitution provides for the establishment, by an Act of
Parliament, of courts similar in status to a High Court (s 166(e)).

The Labour Court is such a court, having authority, inherent powers
and standing in relation to matters under its jurisdiction
equal to
that of a High Court in relation to matters under its jurisdiction
(s 151(2) of the LRA). It is a court of law (s 151(1)
of the LRA)
with judicial authority in terms of the Constitution (s 165(1) of
the Constitution).
[24] By virtue of its judicial authority and specific provisions of
the LRA it may review the exercise of functions by the Commission.

Where a commissioner exceeds the constitutional constraints on his
or her powers on arbitration, this can be reviewed by the Labour
Court under s. 145, in particular s. 145(2)(a)(iii). It is not
necessary to resort to s. 158(1)(g) to achieve this end.
[25] What has bedevilled the interpretation of s 145 and has led to
the conclusion that it provides for a narrow and unconstitutional
basis of review, is the reliance placed on decisions interpreting a
corresponding section in the Arbitration Act, 42 of 1965 (Cf.
Amalgamated Clothing and Textile Worker’s Union v Veldspun Ltd
[1993] ZASCA 158
;
1994 (1) SA 162
(A)). The meaning accorded to this section by the
courts cannot be taken over without qualification. That Act’s
operation in
respect of arbitration under the auspices of the
Commission is expressly excluded in the LRA (s 146); it applies to
private, consensual
arbitration (in contrast to the compulsory
arbitration under the LRA); and its provisions were assessed and
interpreted in a different
constitutional context. In any event,
even under the provisions of the
Arbitration Act an
award could be
reviewed and set aside if the arbitrator exceeded his or her powers
by making a determination outside the terms
of the submission (
Veldspun’s
case, above, at 169C). These considerations
augment the canon of interpretation that the legislature, by
including an existing
formulation in a statute, is presumed to
intend to give it the meaning previously accorded by the courts.
[26] It must be admitted that the choice of the word “despite’
in
section 158(1)(g)
is an unhappy one. It allows for an
interpretation of
s 158(1)(g)
as granting a general review power to
the Labour Court over any function, act or omission under the LRA,
instead of it providing
merely for the Court’s residual powers of
review for administrative functions not defined specifically in
ss
145
and
158
(1)(h). If the latter interpretation is accepted, the
provisions of
ss 145
,
158
(1)(g) and
158
(1)(h) apply to distinct and
different forms of administrative action and do not overlap. If,
however, the former interpretation
is accepted, the field of
application of
ss 145
and
158
(1)(g) do overlap, with the result that
the provisions of
s 145
become superfluous.
[27] The reasoning supporting this interpretation of
s 158(1)(g)
found its justification in the suggestion that it was necessary to
do so, because the grounds of review under
s 145
of the LRA were
limited in scope and thus did not give expression to what the
Constitution demanded. In order to act in accordance
with the
Constitution one thus had to make use of s 158(1)(g). It has
already been shown that review under s 145 is not in conflict
with
the Constitution.
[28] It is necessary to attempt to interpret s 145 in a manner which
is consistent with the Constitution (See s 3(b) of the LRA;
S v
Bhulwana
;
S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12)
BCLR 1579
(CC); para. 28). It is capable of such an interpretation.
If the result means that the word “despite” in s 158(1)(g)
should
be read as “subject to”, then so be it. It is a lesser
evil than ignoring the whole of s 145, including its sensible
provisions
relating to time limits.
[29] It follows that Mlambo J cannot be faulted for refusing to
invoke the power of review in terms of s 158(1)(g), and holding
that
review of arbitration proceedings under the auspices of the
Commission must proceed under s 145 of the LRA.
The standard of review
[30] It appears from a number of decisions of the High Courts that
the effect of, particularly, the administrative justice section
in
the Bill of Rights is seen as broadening the scope of judicial
review of administrative action (See
Tseleng v Chairman,
Unemployment Board and Another
1995 (2) BCLR 138
(T):
1995 (3)
SA 162
(T):
Standard Bank of Bophuthatswana Ltd v Reynolds NO and
Another
1995 (3) BCLR 305
(B):
1995 (3) SA 74
(B);
Pennington
v The Minister of Justice and Others
1995 (3) BCLR 170
(C),
Kotze v Minister of Health
1996 (3) BCLR 417
(T),
Maharaj
v Chairman of the Liquor Board
1997 (2) BCLR 248
(N):
1997 (1)
SA 273
(N); and in the Land Claims Court,
Farjas (Pty) Ltd and
Another v Regional Land Claims Commissioner, Kwazulu-Natal
1998
(5) BCLR 579
(LCC)).
[31] The peg on which the extended scope of review has been hung is
the constitutional provision that administrative action must
be
justifiable in relation to the reasons given for it (ss 33 and item
23(b) of schedule 6 to the Constitution). This provision
introduces
a requirement of rationality in the
merit or outcome
of the
administrative decision. This goes beyond mere procedural
impropriety as a ground for review, or irrationality only as
evidence of procedural impropriety.
[32] But it would be wrong to read into this section an attempt to
abolish the distinction between review and appeal. According
to the
New Shorter Oxford English Dictionary
‘justifiable’ means
‘able to be legally or morally justified, able to be shown to be
just, reasonable, or correct; defensible.’
It does not mean
‘just’, ‘justified’ or ‘correct’. On its plain meaning
the use of the word ‘justifiable’ does
not ask for the
obliteration of the difference between review and appeal. Neither
does the LRA itself: it makes a very clear distinction
between
reviews and appeals.
[33] One must be careful not to extend the scope of review for the
wrong reasons. One such wrong reason would be the fact that
the
Labour Court has no original or appeal jurisdiction in respect of
the matters specified to be conciliated and arbitrated under
the
auspices of the Commission and to compensate for this by an extended
review. There is no constitutional right to have matters
capable of
being decided by the application of law determined by a court of
law. It may be done by another independent and impartial
tribunal
(s 34 of the Constitution). The Commission is such a tribunal. It
is (and was, see
Hira v Booysen
1992 (4) SA 69
(A) at 91E-I)
quite proper to give an independent and impartial administrative
tribunal the exclusive competence to decide not
only matters of
fact, but also of law, with no right of appeal to a court.
[34] The particular conception of the State and the democratic
system of government as expressed in the Constitution determines
the
power to review administrative action and the extent thereof (Cf.
Craig,
Administrative Law
, 3rd ed. at 3-40). Of importance
in this regard, for present purposes, is the constitutional
separation of the executive, legislative
and judicial
authority
of the state administration, as well as the foundational values of
accountability, responsiveness and openness in a democratic
system
of government (s 1(d) of the Constitution). The former provides
legitimacy for the judicial review of administration action
(but not
for judicial exercise of executive or administrative authority),
whilst the latter provides the broad conceptual framework
within
which the executive and public administration must do its work, and
be assessed on review.
[35] When the Constitution requires administrative action to be
justifiable in relation to the reasons given for it, it thus seeks
to give expression to the fundamental values of accountability,
responsiveness and openness. It does not purport to give courts
the
power to perform the administrative function themselves, which would
be the effect if justifiability in the review process
is equated to
justness or correctness.
[36] In determining whether administrative action is justifiable in
terms of the reasons given for it, value judgments will have
to be
made which will, almost inevitably, involve the consideration of the
‘merits’ of the matter in some way or another.
As long as the
judge determining this issue is aware that he or she enters the
merits not in order to substitute his or her own
opinion on the
correctness thereof, but to determine whether the outcome is
rationally justifiable, the process will be in order.
[37] Many formulations have been suggested for this kind of
substantive rationality required of administrative decision makers,
such as ‘reasonableness’, ‘rationality’, ‘proportionality’
and the like (Cf. e.g. Craig,
Administrative Law
, above, at
337-349; Schwarze,
European Administrative Law
, 1992 at 677).
Without denying that the application of these formulations in
particular cases may be instructive, I see no need
to stray from the
concept of justifiability itself. To rename it will not make
matters any easier. It seems to me that one will
never be able to
formulate a more specific test other than, in one way or another,
asking the question: is there a rational objective
basis justifying
the connection made by the administrative decision-maker between the
material properly available to him and the
conclusion he or she
eventually arrived at? In time only judicial precedent will be able
to give more specific content to the
broad concept of justifiability
in the context of the review provisions in the LRA.
[38] With the above in mind, it is now time to return to the facts.
Material facts
[39] The employees lost their employment with the appellant towards
the end of 1996. During January - April 1997 attempts were
made at
conciliating the dispute that arose from their loss of employment
under the LRA’s provisions, but with no success. The
disputes
were then referred to arbitration under the auspices of the
Commission in terms of s 141 of the LRA.
[40] The matters were set down for arbitration from 17 - 20 June
1997. The appellant alleged these dates were arranged by the
commissioner with the consent of the employees, but that the
appellant’s consent was not sought. The employees and
commissioner
disputed this. It is, however, common cause that
appellant was informed of the dates of the hearing on 3 June 1997
and that the
firm of attorneys representing him was told of the
dates on 4 June 1997.
[41] At the commencement of proceedings on 17 June 1997 counsel
appearing for appellant on instruction from appellant’s attorney
made application for the appellant to be allowed legal
representation, as well as for a postponement. The former was
granted,
the latter not, except to the extent that the commissioner
allowed the matter to stand down until 09H00 the next day.
[42] An associate from the appellant’s attorneys appeared the next
day as counsel was not available. An application for legal
representation for the rest of the arbitration proceedings was
granted, but a further application for a postponement was refused.

To assist the appellant, the commissioner let the matter stand down
till 13H00 on 19 June 1997.
[43] On that day a professional assistant from the firm of attorneys
appeared, once again requesting a postponement. It was refused.

The commissioner warned the legal representative and Mr Isaacs, the
appellant’s chief executive officer, that the proceedings
would
continue in their absence if they left. They nevertheless did,
Isaacs proceeding to a medical appointment made for that
afternoon.
Before leaving, the professional assistant allegedly informed the
commissioner that Isaacs reserved his right to return
after his
medical appointment and that appellant intended launching interdict
proceedings to prevent the continuation of proceedings
in Isaacs’
absence.
[44] Despite this the commissioner proceeded and finalised
proceedings at 22H00 that evening by making an arbitration award in
the employees’ favour.
[45] On 20 June 1997 the progressive diminution in the formal status
of appellant’s legal representatives continued when a candidate
attorney was sent to observe proceedings, only to find out that the
proceedings had all ended the previous evening.
[46] The initial reason advanced for the need for a postponement was
that the partner in the firm of attorneys who originally dealt
with
the matter became unavailable to do the matter because his daughter
was diagnosed as seriously ill on 12 June 1997 and he
had see to her
needs over the next couple of days. Isaacs testified to this in an
affidavit handed to the commissioner in support
of the application
for postponement on 17 June 1997. The material parts read as
follows
“
4. As chief executive officer of the respondent I appointed Mr
A, of Webber Wentzel Bowens Attorneys as my legal representative in
this matter. Mr A was appointed as the respondent’s legal
representative, who has worked the matter up and who at this stage
is the only person who could proceed to represent the respondent in
the arbitration.
5. A formal notification of arbitration dates was forwarded to me
by Mr W W Ferreira, CCMA Case Manager on 02 June 1997. However,
the
facsimile only came to my attention on 03 June 1997.
6. I contacted Mr A and informed him of the arbitration referral.
The documentation relating to the matter was delivered to Mr A’s
office by hand on 04 June 1997.
7.
I have since been advised by Webber Wentzel Bowens that
on 12 June 1997 Mr A’s young daughter was diagnosed as having a
life threatening
illness. Mr A’s daughter was admitted to the
Children’s Leukemia Ward at the Johannesburg General Hospital on
13 June 1997.
8. Mr A has not been able to attend at his offices and has not
been able to assist me in preparation of the respondent’s case due
to his personal circumstances. The case faced by the respondent is
one of considerable complexity and difficulty, requiring extensive
preparation.
9. At such short notice none of Mr A’s associates at Webber
Wentzel Attorneys are available to undertake the respondent’s case
on his behalf and neither has there been sufficient or any time at
all for instructed counsel to prepare.
10. I would be neglectful of my duties and reckless towards the
respondent if I attempted to conduct this case without legal
representation.
I believe that the proper conduct of such a case
would be beyond my capabilities. The claims faced by the respondent
are substantial.
If the applicants were to be successful on all of
their heads of claim respondent would face liability of
approximately R 600
000,00.
11. There are certain aspects of the case, such as jurisdictional
issues, which require specialised legal knowledge. The matter
has
also been complicated by various referrals to the commission on a
number of issues.
12. In the circumstances, I believe respondent would be severely
prejudiced if a postponement is not granted in this regard.
13. I am informed by respondent’s attorneys that when making
contact with the applicant’s attorneys on Friday morning, 13 June
1997 they were informed that applicants had not contacted them in
the last two months. Furthermore, with reference to the letter
faxed by the author thereof Commissioner W W Ferreira received 02
June 1997, it is my respectful submission that the arbitration
is
nonetheless not ripe to proceed given that the process prescribed by
Advocate Marcus has not been complied with.
14. Accordingly the respondent seeks a postponement in the
circumstances.’
[47] The subsequent applications for a postponement were based on
this original reason and the resultant inability of those who
replaced the partner dealing originally with the matter, to prepare
on the merits of the case and to be available for 4 days.
These
were augmented on 19 June 1997 by the alleged need of Isaacs to
attend to his medical appointment.
[48] From the transcript of the commissioner’s handwritten notes
of the proceedings (no formal record was kept) it appears that
he
gave no substantive reasons on the postponement issue on 17 June
1997. This is understandable in view of the fact that he allowed
the matter to stand down till the next day. His recorded reasons
for refusal of the application for a postponement on 18 June
read as
follows:
“
1. Mr Isaacs must know (and have known all along) of the
circumstances of the termination of employment of his employees from
his
side.
2. Mr Isaacs could have instructed his attorneys in May 1997 when
he says he received the request for arbitration. However he waited
for receipt of the arbitration notice (received by employer 2 June
1997) and gave the instructions (to his attorneys) some 4 or
5 days
later which, owing to intervening holidays, it is said was
insufficient time for his attorneys to prepare (according to
Mr van
Rensburg).
3. Whilst I am sympathetic to any hardship caused to Mr Isaacs
and his attorneys, this matter has, according to applicants, in the
form of (this) and related disputes, been ongoing since October 1996
and delayed by constant point taking and dilatory tactics
by Mr
Isaacs (a submission which seems to find some support in Mrs De
Jongh’s report as conciliator of the dispute), (copy attached),
whereas the CCMA is requested to adopt an expedited form of
arbitration proceedings in terms of its official policy and the
provisions
of Section 138(1) of the LRA)
4. Ms Kieser had to travel by air from Cape Town [to this
arbitration], in which regard, on my express invitation, the
employer
[represented by Mr Isaacs] declined to tender costs of air
travel and accommodation should I be inclined to grant a
postponement,
5. The requirements of expedited (arbitration proceedings) and
the spirit of the Act (i.e. looking to expedite labour dispute
settlement)
aside; I cannot see why attorneys (if available) cannot
take sufficient instructions to at least commence with the hearing
of the
1st group of employees (i.e. in relation to the constructive
dismissal claims), the factual grounds of which are not that complex
and the circumstances of which were always known to Mr Isaacs, nor
do I believe the employee’s written submissions of issues
are
essential to the attorneys for this purpose, considering that in
most dismissal arbitrations which I conduct this is not even
a
requirement and the issues are determined without the benefit of
prior statements at all in a “narrowing of the issues” exercise.
If laymen can participate (in such an exercise) in order to
determine issues, why can’t attorneys? An alternative
representative
must, if necessary, be found for Mr A. To meet the
company’s needs, I did agree to postpone the hearing of the 1st
group’s
dispute to tomorrow 19 June 1997 at 13h00 when opening
statements, followed by a narrowing of the issues exercise would
commence.
Owing to the degree of past lack of co-operation, I
assumed it would serve little purpose to require parties to meet to
arrange
an agreed bundle of documents. The matter accordingly
postponed to 19 June 1997 at 13h00 in respect of groups 1 and 2.”
[49] In his answering affidavit to the application for review the
commissioner elaborated on these reasons. He made the additional
point that from the time when the firm of attorneys’ partner who
originally dealt with the matter (Mr A) heard of the diagnosis
of
his daughter’s illness to the hearing itself there were five days
within which to make alternative arrangements. Neither
Isaacs nor
the attorney explained on affidavit what steps were taken during
that period to make alternative arrangements or, if
taken, when they
were taken. This is no technical matter. How did the firm’s
“industrial relations and employment law department”
function?
How many partners are there? Were they all contacted? Which
counsel were contacted and when? Why did those persons
who became
formally involved later not depose to affidavits either at the
hearing or in the review applications? In the absence
of these
details the Commissioner can hardly be faulted for doing what he did
on the information placed before him from 17 June to 19 June.
[50] Similarly, the commissioner dealt with the additional reason
given for the request for another postponement on 19 June 1997
in
his answering affidavit. He considered this reason, namely, Isaacs’
need to attend to a medical appointment, as inadequate,
given that
it was not raised earlier, no evidence on affidavit was given to
this effect, and no proper reason appeared why it was
so urgently
necessary to attend to the appointment on that day.
[51] As far as the continuation of the arbitration proceedings was
concerned, the commissioner warned both the legal representative
and
Isaacs on 19 June 1997 that if they left the hearing would continue
in their absence. He was aware that some of the employees
had come
from afar and would incur further costs if the matter went on to the
following day. At the employees’ request he decided
to continue
and finish the proceedings in the evening.
Application of law to facts
[52] The facts as summarised above are largely common cause. Where
there is a dispute the commissioner’s version must be accepted
as
there was no application in the court below for oral evidence to be
heard on the disputed issues in the court below. It has
not (and
could not have been) suggested that the commissioner was acting in
bad faith or that he was dishonest in giving his version
of the
events, or in giving the reasons for his decision.
[53] Accordingly, the only bases for review are (1), that the facts
amount to misconduct or gross irregularity or impropriety under
s.
145(2)(a)(i)- (ii) and s. 145(2)(b) of the LRA, or (2), that his
actions are not justifiable in terms of the reasons given for
them
and that he has accordingly exceeded his constitutionally
constrained powers under s 145(2)(a)(iii) of the Act.
[54] In a court of law the granting of an application for
postponement is not a matter of right. It is an indulgence granted

by the court to a litigant in the exercise of a judicial discretion.
What is normally required is a reasonable explanation for
the need
to postpone and the capability of an appropriate costs order to
nullify the opposing party’s prejudice or potential
prejudice.
Interference on appeal in a matter involving the lower court’s
exercise of a discretion will follow only if it is
concluded that
the discretion was not judicially exercised (
Madnitsky v
Rosenberg
1949 (2) SA 392
(A) at 398-399).
[55] There are at least three reasons why the approach to
applications for postponements in arbitration proceedings under the

auspices of the Commission under the LRA is not necessarily on a
par with that in courts of law. The first is that arbitration
proceedings must be structured to deal with a dispute fairly
and
quickly
(s 138(1)). Secondly, it must be done with ‘
the
minimum of legal formalities
’ (s 138(1)). And thirdly, the
possibility of making costs orders to counter prejudice in good
faith postponement applications
is severely restricted (s 138(10)).
[56] The commissioner’s rejection of the stated need for a
postponement as being inadequate, because there was no explanation
of the steps taken from 12 - 17 June 1997 to obtain other legal
representation, appears to be well founded. Even if that
explanation
was acceptable, the employees’ prejudice resulting
from a postponement could not be cured by the commissioner making a
costs
order; indeed the appellant expressly declined to pay the
costs resulting from a postponement. If the application for a
postponement
was brought in a court of law there would thus have
been good grounds for refusing it and little or no reason to upset
such a finding
on appeal. The same applies to a continuation of
proceedings after a refusal of a postponement where the unsuccessful
applicant
for the postponement elects to absent himself from the
proceedings.
[57] But this is not an appeal from a court of law. It is a review
of a decision of a tribunal where the statutory requirements
for its
functioning are less congenial to the granting of postponements than
is the case in a court of law. The commissioner rejected
as
inadequate the reasons given for the need to postpone, mainly on the
basis that preparations for the case could have been made
earlier
and that the appellant and his legal representatives failed to
explain why adequate alternative arrangements could not
have been
made once the original legal representative became unable to
continue with the case. There was sufficient material before
him to
come to that conclusion rationally and objectively. He weighed up
the prejudice that would follow for the appellant from
a refusal of
a postponement, against the prejudice the employees would suffer if
a postponement was granted, and noted the absence
of a solution to
this predicament on the basis of a costs order. Once again his
reasoning was rationally connected to the material
before him. His
decision and the reasons he gave for it do not support an inference
of misconduct, irregularity or impropriety.
The decision not to
postpone and to continue the proceedings are rationally justifiable
in terms of the reasons given for the
decision by the commissioner.
He thus did not exceed the substantive constitutional limits to the
exercise of his powers in arbitration
under the LRA. There was no
basis to review his decision in the Labour Court. It follows that
Mlambo J’s order must stand.
[58] The appeal is dismissed with costs.
[59] In this judgment the reasoning in the various Labour Court
judgments was not dealt with in separate detail. This does not
mean
that no assistance was drawn from these judgments. The contrary is
true: without them the task would have been much more
difficult than
it has been. The same must be said for the helpful submissions by
counsel representing the parties on appeal.
The assistance of Mr
Franklin, who acted as
amicus curiae
at the request of the
Court, is also greatly appreciated.
JC FRONEMAN DJP.
I agree
JF MYBURGH JP.
I agree
E CAMERON JA
REPRESENTATIVES
Appellant : Adv. MJ Van As instructed by Webber Wentzel &
Bowens.
Employees : Adv. J Viljoen instructed by Kemp de Beer & Goosen.
Commission : Adv. D Davis instructed by Cheadle Thompson and Haysom.
Amicus Curiae: Adv. A. Franklin.
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