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[2002] ZALCJHB 28
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Northern Province Development Corporation v Commission for Conciliation Mediation And Arbitration and Others (JR217/01) [2002] ZALCJHB 28 (12 October 2002)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE NO: JR 217/01
In
the matter between:
NORTHERN PROVINCE
DEVELOPMENT CORPORATION
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
&
ARBITRATION
First
Respondent
ERIC
PHINDELA
Second
Respondent
MXOLISI
NICK BAMBO
Third
Respondent
JUDGMENT
TIP AJ :
1.
The third respondent is a former employee of the applicant.
At the time of his dismissal on 13 May 1999, he was employed
as the
Corporate Manager : Remuneration. He disputed the
fairness of the dismissal and referred the matter to the CCMA.
The dispute was ultimately referred to arbitration before the second
respondent, for hearing on 7 February 2001. On
that day,
the second respondent ruled that the applicant’s counsel was
not entitled to appear in the matter, he being a part-time
commissioner of the CCMA. The second respondent also
dismissed an application for the postponement of the hearing.
The matter proceeded in the absence of the applicant and an award was
made in favour of the third respondent. This
is an
application for the review of that award.
THE
REPRESENTATION ISSUE
2.
This question turns on the status of a policy decision taken by the
governing body of the CCMA. It is not clear when the relevant
decision was taken but it appears to have been circulated on 2
November 2000 under the subject “Part-time Commissioners
appearing in the CCMA”. The text of the communication, from the
director of the CCMA, was in the following terms:-
“
I have received
numerous requests from part-time Commissioners wanting to appear on
behalf of parties at the CCMA. This matter was
discussed extensively
by the National Directorate and the Governing Body. The GB came to
the conclusion that part-time commissioners
should not appear in the
CCMA.”
3.
At the hearing on 7 February 2001, the third respondent was
represented by his attorney, Mr Mahlase. Mr Mahlase had
been a part-time commissioner of the CCMA but, evidently in response
to the policy decision set out above, he had resigned by the
time of
the hearing. He presented a letter to that effect.
4.
By contrast, Adv Laka, who had been instructed on behalf of the
applicant, was also a part-time commissioner of the CCMA but
had not
resigned. As appears more fully below, he informed the second
respondent that he had been advised by the convening senior
commissioner of the CCMA in Mpumalanga, the province where he was
enrolled as a part-time commissioner, that he could appear in
other
provinces. Since the dispute had arisen and was heard in the Northern
Province, Mr Laka contended that he was therefore entitled
to appear.
The second respondent nevertheless interpreted the CCMA policy
directive as being of general application and therefore
held that Mr
Laka could not appear.
5.
Mr Laka appeared for the applicant in these review proceedings
also. Given that the key issue was concerned with
his
locus standi
as a representative in the CCMA, as well as
ancillary issues which I will set out below, it is in my view
undesirable that he should
have appeared in this court in these
proceedings. Inevitably, given the background to this matter, he
appeared not only as counsel
for his client but also as counsel in
his own cause. Be that as it may, the first question to be addressed
is whether the exclusion
of Mr Laka at the arbitration hearing was
competent as a matter of law.
6.
The functioning of the CCMA is regulated in part A of Chapter VII of
the Labour Relations Act No. 66 of 1995 (“the LRA”).
Section 116 establishes the governing body of the CCMA and provides
that its acts are “acts of the Commission”.
7.
Section 117 deals with the appointment of commissioners, including
part-time commissioners. Such appointments are made by the
governing
body. Section 117(1) stipulates merely that such commissioners are to
be “adequately qualified persons”.
Section 117(2)(d)
requires the governing body, when making appointments, to “have
due regard to the need to constitute a
Commission that is independent
and competent and representative in respect of race and gender”.
Section 117(4) provides that::-
“
The governing body
must determine the commissioners’ remuneration, allowances and
any other terms and conditions of appointment
not contained in this
section.”
Section
117(6) is in these terms:-
“
The governing body
must prepare a code of conduct for the commissioners and ensure that
they comply with the code of conduct in
performing their functions.”
In terms of section
117(7)(c) the governing body may remove a commissioner from office
for “a material violation of the Commission’s
code of
conduct.”
Consideration
must also be given to section 115, which sets out the functions of
the commission. One of those is to
make rules
inter
alia
regulating the practice and procedure for conciliation and
arbitration proceedings (section 115(2)(cA)(iii)).
8.
To complete this review of the statutory framework, it is necessary
to have regard also to the provisions of section 138(4) of
the LRA,
which is in these terms:-
“
In
any arbitration proceedings, a party to the dispute may appear in
person or be represented only by –
(a)
a legal practitioner;
(b)
a director or employee of the party; or
(c)
any member, office bearer or official of that party’s
registered
trade union or registered employers’ organization.”
Section
140(1) deals with the circumstances under which legal practitioners
may appear in arbitration proceedings. I need not consider
those
provisions in any detail, since it is common cause in this matter
that it was resolved that legal practitioners could indeed
appear in
the arbitration before the second respondent.
9.
Against the backdrop of the various provisions set out above, it is
necessary next to consider what the source of authority is
for the
decision of the governing body that was circulated on 2 November
2000. In doing so, I bear in mind two general
perspectives:-
9.1.
The first is that the governing body of the CCMA is a creature of
statute
with no inherent power to regulate its own affairs or those
of the CCMA.
9.2.
The second is that a purposive approach must be taken to the
interpretation
of the LRA. The CCMA performs a vital dispute
resolution function and, in doing so, contributes substantially to
the achievement
of the overall objects of the LRA.
The independence of commissioners is an important part of that
process.
Plainly, commissioners must not only indeed be
independent but must manifestly be seen to be so. The
need for an independent
CCMA is indeed one of the specific statutory
charges upon its governing body. In such circumstances,
it would form
part of the duty of the governing body to address a
situation, assuming that such exists, where individuals frequently
sit as part-time
commissioners and frequently appear before it as
representatives, since that may well negatively affect the public’s
perception
of the independence of commissioners. That is
a policy and reguIatory matter that is properly to be dealt with by
the
governing body. I should add that it is in general
far from being this court’s function to substitute its views
on
such matters for those of the governing body. Thus, it
falls within the province of the governing body to consider
the facts
and statistics before it and to decide whether there should be a
policy that is in absolute terms and whether or not
it should
differentiate the situation where a part-time commissioner who sits
in one province should be excluded from appearance
as a
representative in another.
10.
A purposive approach to the role of the governing body of the CCMA
does not however mean that the structure and wording of the
LRA can
in effect be disregarded. The policy decision here at
issue must therefore be located within the Act itself.
The attempt to do so does not produce a readily apparent answer.
Three specific possibilities present themselves:-
10.1.
The first is that the governing body’s decision falls within
the ambit of “any other terms and conditions of appointment”
contemplated in section 117(4). However, that
construction may more readily present itself as producing a valid
result in respect of appointments made after the decision than
those
effected before it. In this regard, the “fixed
term” of appointment of a commissioner, as stipulated
in
section 117(2)(b) is relevant. For some individuals, it
may be a very material alteration of the basis upon which
they were
appointed as commissioners, to be instructed midstream that they are
no longer permitted to appear before the CCMA.
There is
nothing before me to suggest that the change brought about by the
policy directive has been anything but unilateral.
10.2.
The second possibility is that the decision is to be read as forming
part of the “code of conduct” referred to in section
117(6). If that had indeed been the intention then,
in my
view, it was more than a little desirable that it should have been
described as such. This is particularly so
having regard
to the provisions of section 117(7)(c) which contemplates a related
removal from office. Again, the question
presents itself
as to the validity of a unilateral alteration to a code of conduct in
terms of which commissioners have been appointed
and have operated
until the decision circulated on 2 November 2000.
10.3.
The third possibility is that the decision of the governing body
amounts to a rule as envisaged in section 115(2)(cA)(iii).
It may well be that this interpretation is unavoidable,
given that
Rule 21 of the CCMA Rules promulgated on 31 March 2000 in Government
Gazette No. 29081 expressly deals with the application
of section
138(4) of the LRA. These rules are described as “rules
regulating the practice and procedure for resolving
disputes through
conciliation and at arbitration proceedings” and were made in
terms of section 115(2)(cA)(iii) and (iv).
Rule 21 deals
with representation at arbitrations in
inter alia
the
following terms:-
“
21.1
Section 138(4) read with section 140 of the Act exclusively states
who may appear or be represented in arbitration
proceedings.
A commissioner has no discretion to permit any person other than
those listed in that section to appear
or act as a representative
even if the other parties have no objection.
21.2 If a
party to the dispute objects to the representation of another party
to the dispute or the commissioner suspects
that the representative
of one of the parties to the dispute does not fall within the ambit
of section 138, the commissioner must
determine this issue.”
The relevance of that
rule to the present issue is that the responsibility of a
commissioner
vis-à-vis
representation is explicitly
placed within the confines of section 138(4) read with rule 21,
neither of which in any way contemplates
the situation of a would-be
representative who happens also to be a part-time commissioner. In
this context, the question mark
over the status of the policy
directive is clear Moreover, if the decision of the
governing body were intended to fall
within the ambit of a rule, it
would have required publication in the Government Gazette. See
section 115(6) of the LRA. Insofar
as the decision is not a rule, it
leaves commissioners with the difficulty that they are required to
apply rule 21 in a situation
where the decision of the governing body
has no equivalent status.
11.
It is however unnecessary for me, for the purpose of this judgment,
to make a final determination in respect of the validity
of the
governing body’s decision, having regard to the difficulties
that I have briefly outlined above. This
is so because
analysis of the decision resolves into two components:
11.1.
firstly, does the governing body have the power to decide that
persons who appear as representatives before the CCMA shall not be
appointed as commissioners of the CCMA or, having been so appointed,
shall be removed from office;
11.2.
secondly, does the governing body have the power to determine that
persons who sometimes sit as part-time commissioners of the CCMA
shall be excluded if they present themselves as representatives
in a
dispute.
The
application before me requires a decision on the second component but
not the first.
12.
Mr Laka argued that section 138(4) sets out a clear statutory
definition of who is entitled to appear as a representative.
As a duly admitted and properly instructed advocate, he asserts that
he falls clearly within the ambit of that statutory stipulation
and
that it is beyond the power of the governing body or, in this
instance, the second respondent, to exclude him from performing
that
representative function. He submitted further that the
CCMA could at the most act against him in his capacity
as a part-time
commissioner, but not in his capacity as a representative.
On the basis of the analysis that I have
set out above, I must
conclude that this submission is well founded. Neither
section 115 nor section 117 of the LRA
purports to empower the
Commission or its governing body to vary the terms of section
138(4). As already indicated,
CCMA rule 21 is consistent
with section 138(4) and is plainly calculated to give effect to it.
13.
I accordingly find that the exclusion by the second respondent of
Advocate Laka from the proceedings before him on 7 February
2001 was
not competent. It follows that the award which resulted
after the exclusion of the applicant’s chosen
legal
representative cannot stand.
THE
POSTPONEMENT ISSUE
14.
In case I should be wrong in relation to the representation issue, I
proceed to consider the ruling made by the second respondent
in
refusing a postponement as requested by the applicant’s
representatives on 7 February 2001. The application
for
postponement was made after the ruling that Adv Laka could not
represent the applicant and was said to be for two purposes:
an
application for the review of the decision to exclude Adv Laka;
and, an opportunity to arrange alternative legal representation.
That those two reasons could not meaningfully co-exist is
self-evident, but of no real consequence for the purpose of this
judgment.
The second respondent was unpersuaded that the
intimation of a review obliged him to postpone the proceedings.
I agree
with him. However, I do not share his view that
the circumstances before him were such as to warrant the refusal of
a
postponement in relation to the second reason.
15.
The relevant background factors may be summarized as follows:-
15.1.
The arbitration was first enrolled for 25 October 2000 but, evidently
by agreement, was postponed to 20 November 2000. It
appears that the issue of legal representation arose on that day,
that it was decided that there could be legal representatives, and
that the matter was again postponed in relation to that issue.
There is a dispute on the papers as to whether or not the decision of
the governing body was pertinently raised on that occasion.
There are strong indications that it was, but these are not reflected
in the award made by the second respondent. In
any event,
I need not determine that question. I should add that the
second respondent’s award states that the
postponement on 20
November 2000 was at the request of the employer, i.e. the
applicant. However, the affidavit of
the third respondent
filed in the proceedings before me states that this postponement was
agreed upon his “special request
and instance”.
15.2.
The matter was then enrolled for 29 January 2001 and proceeded
to
hearing, as already indicated, on 7 February 2001. Again,
and as reflected in the award, this appears to have been
done by
agreement between the parties.
15.3.
It is common cause that the third respondent’s attorney
contacted the applicant’s attorney to advise that an objection
would be made to Adv Laka representing the applicant at the
arbitration, on the ground that he was a part-time commissioner.
According to the affidavit of Ms Morobane, a candidate
attorney
employed at the applicant’s attorney, this was on 24 January
20001.
15.4.
Ms Morobane than contacted a commissioner at the CCMA in Gauteng,
Mr
Hlongwane, relating to this objection and was informed by him that
part-time commissioners were not allowed to appear as representatives
in the province where they were engaged as commissioners.
It was suggested by him that this should be confirmed with
Mr Van
Zeydman, whose capacity is not described in the affidavit but may be
assumed to be a senior official of the CCMA.
15.5.
Mr Van Zeydman was contacted by Ms Morobane. His advice
was that Adv Laka should get permission from his convening senior
commissioner in Mpumalanga to appear in a CCMA hearing conducted
in
the Northern Province.
15.6.
On 7 February 2001, the second respondent was informed of these
enquiries and their fruits. He was informed also that Adv Laka had
indeed approached the convening senior commissioner in Mpumalanga
and
that he had been told that he could appear in a different province,
being the Northern Province. There is nothing
on record
to suggest when this conversation took place. It is also
clear that none of the steps outlined about were
conveyed to the
third respondent’s attorney before the hearing on 7 February
2001.
16.
The second respondent was unpersuaded by these considerations.
He held:-
“
The employer was
warned well in advance by Mr Mahlase on 25 January 2001, some ten
days before the hearing, that its chosen counsel
would not be allowed
to appear in the proceedings. It must have anticipated
this by making alternative arrangements.
On the other
hand, Ms Snyders who was the instructing attorney in this matter, was
in attendance. Ms Snyders’
submission that only
Advocate Laka prepared for the matter has a hollow ring and can
therefore not be sustained. In
my view Ms Snyders, as an
instructing attorney, is privy to the issues which were to be raised
in the proceedings and she was accordingly
competent to represent the
employer. I need not canvass in full the involvement of
an attorney in a matter in which
she/he is instructing a counsel.
It is sufficient to state that to my mind an attorney instructing
discusses
the matter with counsel and together they outline the line
of defence to be followed.
Alternatively, if Ms
Snyders was serious about representing the employer or the employer
was serious about defending the matter,
she could have applied that
the matter stand down for an agreed time so that she could refine her
preparations and the employer
could have instructed her
accordingly. In my view such an application would not
have been unreasonable, more so that
the matter was set down for the
whole day.”
17.
In my view, these reasons for refusing the postponement show that the
second respondent did not have adequate regard to the
full set of
facts that had been placed before him. Although he had
been informed of the various measures that had been
taken in relation
to the position of Mr Laka and although the second respondent noted
“that they laboured under the impression
that he would be
allowed to appear”, that factor appears not to have weighed
with him at all. Instead, he adopted
the robust approach
that there had been a warning on 25 January 2001 and that the
applicant should therefore have made alternative
arrangements.
18.
In this context, he took the view that Ms Snyders was in a position
to represent the applicant or could, without requiring a
postponement, “refine her preparations” if given a short
adjournment. In expressing that view, the second
respondent entirely discounted the statement made by Ms Snyders that
Adv Laka had been briefed to represent the applicant and that
he was
prepared, whereas she was not. The hearing was evidently
to be a fairly substantial one. It is common
cause on the
affidavits that the matter had been set down for two days of hearing,
with a third day in reserve. In
those circumstances, it
is in my view thoroughly unrealistic to take the view that an
instructing attorney can simply step into
the shoes of counsel
briefed to conduct the matter or would be in a position to do so
after a short adjournment to refine her instructions.
(Equally, I am unpersuaded by the submission advanced to me on the
third respondent’s behalf by Mr Nowosenetz that the applicant’s
team present at the arbitration consisted of senior and competent
people and that any one of them could simply have substituted
as the
representative.) Such approach has no regard to what is
involved in a proper process of preparation for the
conduct of a
hearing, including the presentation of one’s own evidence, the
cross-examination of opposing witnesses and the
submission of
arguments. In addition, it must be observed that the
dispute concerned a senior employee and was a matter
of some
consequence.
19.
It is clear from the background events outlined above that it had
throughout been the intention of the applicant to resist the
relief
sought by the third respondent at the arbitration. It is
in my view difficult to understand how the second respondent
could
have formed the view that Ms Snyders was not serious about
representing the employer or that the employer itself was
not serious
about defending the matter. Although I agree with the
second respondent to this extent, that Mr Laka and
other members of
the legal team representing the applicant should have done more to
clarify and formalise his status before the
hearing of 7 February
2001, this is far from being a situation where the notification of
the proposed objection was simply ignored.
Steps were
taken and the second respondent was informed
inter alia
that a
convening senior commissioner had given the advice that it would be
in order for Adv Laka to appear in a hearing in the Northern
Province. The deficiency that arises from this is that no
formal ruling was obtained and that the obvious precaution
of
securing an endorsement of that advice by the head office of the CCMA
was not pursued. Likewise, the failure to
respond to Mr
Mahlase before 7 February 2001 was more than professionally
discourteous; it was certain to contribute to a dispute
at the
hearing. The approach of, particularly, Adv Laka was in
my view unacceptably casual. All considered,
it would
certainly have been appropriate for the second respondent to require
that the applicant pay the costs of a postponement.
20.
In the result, it is my conclusion that the second respondent erred
in an unjustifiable manner in refusing a postponement on
7 February
2001, for the purpose of arranging properly prepared legal
representation. In coming to that conclusion,
I do not
lose sight of the fact that the granting or withholding of a
postponement involves a considerable degree of discretion
and that
this court should interfere with the exercise of such discretion only
in very limited circumstances. As an
illustration of the
common law approach to this question see
Tuesday Industries
(Pty) Limited v Condor Industries (Pty) Limited & Another
1978 (4) SA 379
(TPD)
. I have regard also to the
approach of this court in decisions such as the following:
Ross & Son
Motor Engineering v CCMA & Others
[1998] 11 BLLR 1168
(LC);
Dimbaza Foundries Limited v CCMA & Others
[1999] 8 BLLR 779
(LC);
MIT Tissue v Theron & Others
[2000] 8 BLLR 947
(LC).
At the same time, it
remains an important feature of the matter before me that the
applicant arrived at the arbitration hearing
on 7 February 2001 fully
prepared and willing to proceed. It was believed that Adv
Laka had clarified his position
and that the impediment raised by the
decision of the governing body had been cleared. In this
important respect, this
case is distinguishable from those that I
have referred to, in which a party came to the proceedings intending
to secure a postponement.
21.
It is therefore my conclusion that the award made by the second
respondent in the absence of the applicant should be set aside
also
on the ground of his refusal of the application for postponement, to
the extent that this was for the obtaining of properly
prepared legal
representation.
22.
Although the applicant must succeed, it does not follow that it
should enjoy the benefit of a costs award in its favour. I have
already described the extent to which I consider there to have been
significant shortcomings in the manner in which the notice
of
objection by Mr Mahlase was responded to. Had that been dealt with
timeously and in a thorough and professional manner, the
situation
which the second respondent was called upon to deal with might well
not have arisen. Likewise, recourse to this court
may then also have
been unnecessary. A further consideration is that although the
applicant has succeeded in its principal point,
that concerning the
legal standing of the decision of the governing body of the CCMA, no
contention with that formulation was placed
before the second
respondent at the time of the hearing before him. At that stage, Mr
Laka’s objection was that the second
respondent himself did not
have the authority and that it was for the governing body to decide.
The status of the governing body’s
decision was itself not
challenged. Having regard to all the circumstances and the terms of
section 162(1) of the LRA, it is my
conclusion that no order as to
costs should be made in respect of this application.
23.
The applicant has sought a determination by this court that the
dismissal of the third respondent by the applicant was fair.
There is
no basis for the granting of such relief. The transcript
of the proceedings in the CCMA obviously records
only the version of
the third respondent. That version has not been tested by the
applicant. Likewise, the applicant’s
version has
not been tested on behalf of the third respondent.
24.
I make the following order:-
24.1.
The award made by the second respondent under CCMA case number
NP12992 on 22 February 2001 is hereby reviewed and set aside to the
extent of paragraph 1 thereof.
24.2.
Paragraph 2 of the said award is varied to read: ‘The employer
is to pay the costs of today, as on postponement, on the Magistrates
Court scale’.
24.3.
The matter is remitted to the CCMA for hearing
de novo
before
a commissioner other than the second respondent.
24.4.
No order is made as to costs.
________________
_____________
K S TIP
Acting
Judge of the Labour Court
Date of hearing :
28 September
2002
Date
of judgment :
12 October 2002
For
applicant :
Adv A P Laka
Instructed by : Maponya
Inc.
For
third respondent :
Adv L Nowosenetz
Instructed by : Mahlase,
Nonyane-Mahlase