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[2007] ZALCCT 17
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Bargaining Council for the Clothing Manufacturing Industry and Another v Prinsloo (C705/2006) [2007] ZALCCT 17 (27 March 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: - C 705/2006
In
the matter between:-
THE
BARGAINING COUNCIL FOR THE
CLOTHING
MANUFACTURING INDUSTRY &
C
DE KOCK
N.O
..............................................................................
Applicants
and
N
PRINSLOO
..................................................................................
Respondent
JUDGMENT
NEL
AJ
This
is a referral to this Court in terms of Section 142(9)(b) of the
Labour Relations Act (“the LRA”) for the decision
by this
Court. The referral took the form of a notice of motion.
The applicants are cited as being the Bargaining Council
for the
Clothing Manufacturing Industry and C De Kock
nominee officio
.
N Prinsloo is cited as the respondent.
In
the body of the referral, which was couched in the same manner as a
notice of motion, reference is made that the applicants are
referring
the finding of contempt made by Coen
de
Kock in the proceedings and details of the parties are given.
It continues to advise that the finding of contempt is referred
to
this Court for its decision in terms of Section 142(9) and (11) of
the LRA.
The
applicants filed the record of the arbitration proceedings and the
arbitration award in question, together with a supporting
affidavit
by Coen de Kock “to assist the above Honourable Court in its
decision in terms of Section 142(11) of the Act”.
The
applicants stated that they believed they had done what was required
of them and concluded by advising of an address at which
they would
accept notice and receipt of all documents in the proceedings, if
any. The applicants served the referral on the respondent’s
attorneys of record.
Section
142 of the LRA regulates the powers of Commissioners when attempting
to resolve disputes. It is apparent that it enables
the
Commissioner to bring parties before him for questioning and to
secure documents necessary for the resolution of disputes.
It
empowers the Commissioner to enter and inspect premises relevant to
the resolution of the dispute. In short, this section
enables
the
Commissioner
to do a number of things to enable him to resolve disputes.
Obviously
because of the need to be able to enforce the Commissioner’s
powers, the Section then sets out, in Section 142(8)(a)
to (i) of the
LRA, conduct which will be regarded as contempt of the Commission.
In summary, a person who has been subpoenaed
and without good cause
fails to appear before the Commissioner, or, if having appeared in
response to a subpoena, fails to remain
in attendance, commits
contempt of the Commission. Refusal to take the oath or make an
affirmation will also be regarded
as contempt of the Commission.
Likewise refusal to answer any question fully and to the best of a
person’s knowledge
and belief, subject to the law relating to
privilege, constitutes contempt of a Commission. Failure
without good cause to
produce any book or document or object
subpoenaed to be presented, is contempt of the Commission.
Then,
in conclusion, Section 142(8)(f) to (i) of the LRA states that a
person who commits contempt of the Commissioner:
“
(f)
if the person wilfully hinders a Commissioner in performing any
function conferred by or in terms of this Act;
(g)
if the person insults, disparages, or
belittles a Commissioner, or prejudices or improperly influences the
proceedings or improperly
anticipates the Commissioner’s award;
(h)
by wilfully interrupting the conciliation
or arbitration proceedings or misbehaving in any other manner during
those proceedings;
(i)
by doing anything else in relation to the
Commission which, if done in relation to a court of law would have
been contempt of court.”
Section
142(9)(a) of the LRA then states that:
“
(a)
A Commissioner may make a finding that a party is in contempt of the
Commission for any of the reasons set out in sub-section
(8).”
Having
made such a finding, Section 142(9)(b) of the LRA says that;
“
(b)
The Commissioner may refer the finding, together with the record of
the proceedings
to the Labour Court for its
decision in terms of subsection (11).”
Once
this Court has had a finding of contempt referred to it, but before
it makes its decision in terms of sub-section 142(11) of
the LRA,
this Court, in terms of section 142(10)(a):
“
(a)
must subpoena any person found in contempt to appear before it on a
date determined by the Court;
(b)
may subpoena any person to appear before it
on a date determined by the Court; and
(c)
may make any order that it deems
appropriate, including an order in the case of a person who is not a
legal practitioner that the
person’s right to represent a party
in the Commission and the Labour Court be suspended.”
And
then, lastly, section 142(11) of the LRA reads as follows:
“
The
Labour Court may confirm, vary or set aside the finding of a
Commissioner.”
In
light of the apparent uncertainty relating to the manner in which a
Commissioner may refer his finding of contempt to this Court,
I
believe it is necessary to remind parties that in terms of the
footnote to rule 7 of the rules of this court, rule 7 applies
to
referrals of a contempt of the Commission in terms of section 142(9)
of the LRA. It follows that the notice of application
must
inter alia
indicate the relief sought, give notice to the
other party of its rights and obligations if he intends opposing the
matter, and
the referral must be supported by affidavit.
It
follows further that the respondent party must also comply with rule
7 and must file a notice of opposition and an answering
affidavit and
generally comply with rule 7 of the rules of this Court. If I
say he must file a notice of application, it
obviously follows that
if the respondent party, who will be the party who has had a finding
of contempt made by the Commissioner,
elects not to oppose the
matter, that is his good right.
I am
however of the view that once the parties have complied with the
requirements of rule 7 in referring the contempt finding to
this
Court, the powers of this Court to deal with the application in the
manner it deems fit are circumscribed by the peremptory
dictates of
section 142(10) of the LRA. This Court must then first subpoena the
person found in contempt to appear before it on
a stipulated date.
At such hearing the Court may then decide whether it is able to
decide the matter on the papers or whether
it will hear oral
evidence. It is evident that prior to the hearing, the court
may also subpoena any other person to appear
before it on a
determined date. It follows that the party found to be in
contempt by the Commissioner must state his defence,
if any, fully in
his answering affidavit. I have already indicated that this is
obviously in the normal course of events
and if the party elects to
oppose it. Failure to do so, that is either to oppose the
matter or to file an answering affidavit
will, in my view, not allow
this Court to determine the matter without first issuing a subpoena
to the person found in contempt
to appear before it.
Such
failure, as I have indicated, to either oppose or file an opposing
affidavit, may result in this Court, having subpoenaed the
person
found in contempt, to possibly not call any witnesses or deeming it
necessary to allow that person to give oral evidence.
I am of
this view as it is clearly incumbent on the respondent party to have
stated his defence in his answering affidavit.
In short, the
normal rules applying to applications and the founding, answering and
replicating papers will apply.
From
the aforesaid it should be clear that I am of the view that the
Commissioner and the person found in contempt having complied
with
rule 7 of the rules of this Court, these parties will have the right
to personally appear before this Court to argue their
respective
cases just as they would be able to do as applicant and respondent
parties in any application proceedings before this
Court.
Whether
it will be appropriate for a Commissioner to personally appear to
argue his case in defence of his finding of contempt,
is another
question. I believe that it may be proper for the Commissioner
to present his case in his founding affidavit and
such replication as
he may deem necessary and then only to be present on the date this
Court considers the contempt referral in
order to possibly answer any
questions the Court may want to put to the Commissioner. I do not
believe that Commissioners, through
argument before this Court, ought
to actively pursue having his or her contempt finding confirmed.
Before
turning to determine whether to confirm, vary or set aside the
finding of contempt of the Commissioner herein, I wish to
also
briefly deal with a question raised and a view expressed by the
learned
BASSON J
in the matter of
COLYER v ESSACK NO AND
OTHERS
(1997) 18 ILJ 1382 (LC) at 1387A to the effect that:
“…
Section
142(9) of the Act is clearly not an empowering section in regard to
the making of a
finding of contempt or the punishment of such
conduct. It merely empowers the CCMA to refer conduct such as
that described
in section 142(8) of the Act as being contempt, to the
Labour Court. It follows that Section 142(9) of the Act should
be
interpreted to mean that the Commissioner does not make a finding
of contempt nor does he or she punish the person who is guilty
of
such conduct. The CCMA refers the matter to the Labour Court
for an appropriate order, meaning both the finding of guilty
and the
punishment of the person concerned.”
To
the extent that the learned Judge found that the Commissioner is not
empowered to make a finding of contempt, I find myself in
respectful
disagreement with such finding. Earlier on in his same judgment
(at 1385 H) the learned Judge stated that the
High Court and this
Court;
“……
.Ha(d)
the inherent jurisdiction summarily to deal with and punish a person
who commits contempt of Court against such Court or
presiding Judge.”
He
went on to state (at 1385 I);
“
Accordingly
the specific statutory empowerment to find a person guilty of
contempt of court and to punish such person is unnecessary.
Not
so in the case of a tribunal which is not a court of law.
Specific statutory empowerment is required before a presiding
officer
will be able to exercise such power.”
BASSON
J
then had regard to the far-reaching
effect, the power or competence to find a person guilty of contempt
and to punish him.
He
expressed the view that this competence militated against the
important rule of natural justice that a person should not be a
judge
in his own case. The rule of natural justice to inform the
person whom it proposes to punish what the complaint was
against
him, and afford the person a proper opportunity of answering it, and
to allow the person the opportunity to apologise was
referred to by
BASSON J
. He expressed the view that all these
principles or rules of natural justice are to be given even more
weight in terms of
our new legal system, which is based upon a
justiciable Bill of Rights. He also referred to Section 34 of
the Constitution
which gives everyone 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. He held the view that it
was in this
context that Section 142(9) of the LRA had to be
interpreted.
Let
me hasten to say that I find myself in full agreement with all these
aforementioned views of
BASSON J
. However, whilst being
mindful of this framework within which to interpret Section 142(9) of
the LRA, I am not able to agree
that the Section is not an empowering
one in regard to the making by a Commissioner of a finding of
contempt. Clearly it
does not empower the Commissioner to
determine the punishment. In fact it only empowers, in my view, the
Commissioner to make a
finding that a party is in contempt of the
Commission for any of the reasons set out in Section 142(8) of the
LRA. Once he has
made such a finding he may (not must), refer the
finding to this Court who may confirm the finding, vary or set it
aside.
As I have already stated, this finding of this Court
must, in
the
first place, be preceded by a referral of the finding by way of an
application supported by affidavit. The party found
to
be in contempt has every opportunity to be advised what the complaint
is against him, and may answer these allegations and apologise,
if he
so wishes, or deal with the allegations as he deems fit. The
matter will then be heard in a public hearing before a
Court and if
this hearing is not fair any party who so contends will have the
normal remedies. Only then may this Court,
and this Court
alone, confirm the Commissioner’s finding, vary it or set it
aside. Then it may make any order it deems
appropriate.
I am
accordingly of the view that the legislature specifically empowered
Commissioners in the first instance to make a finding of
contempt for
any reasons set out in Section 142(8) of the LRA, and thereafter to
refer such finding to this Court to have it confirmed,
varied or set
aside. Thereafter this Court will make an appropriate order.
I
believe this check and balance was regarded as necessary for the very
reason which
BASSON J
alluded to in the
COLYER
matter
(supra), namely that a Commissioner must not be allowed to be a judge
in his own cause.
I
further believe that the process dictated by Section 142(9) to (12)
was legislated exactly because the legislature was mindful,
as was
BASSON J,
of a
person’s constitutional rights under Section 34 of the
Constitution. The legislature, in my view, had in mind a
process whereby through this court the Commissioner could be assisted
with this Court considering whether a person was in contempt
of the
Commission on any of the grounds referred to in Section 142(8) and
the making of appropriate orders.
In
many instances such orders may be to compel compliance with the
subpoenas and processes of the Commission. Clearly the
legislature also deemed it necessary that Commissioners needed to be
protected from insults, or being disparaged or belittled.
In
fact the legislature went so far as to clearly state that a person
will be in contempt of the Commission if he/she does anything
else
(than that already stated in the preceding sub-sections of Section
142 of the LRA) in relation to the Commission which, if
done in
relation to a court of law, would have been contempt of court.
In
National Bargaining Council for the Road Freight Industry v Myer
t/a Oakley Carriers
[2000] 5 BLLR 604
(LC),
WALLIS AJ
expressed the following view (at 615 A – C):
“
It
is also appropriate to say that the discretion thus vested in the
CCMA and Bargaining Councils is one which is to be exercised
with
caution and restraint. It was not the intention of the
legislature to invest Commissioners and designated agents with
the
status and dignity of courts of law. The legislature intended
that Commissioners and designated agents would deal daily
with the
public in relation to matters where strong feelings and impassioned
senses of grievance or persecution may arise.
They are expected
to deal with these and behaviour consequent thereupon robustly, with
patience and a measure of stoicism.
The purpose of Section
142(8) and (9) is to enable them to approach this Court for aid when
the conduct in issue, be it failure
to respond to a subpoena, a
refusal to answer questions or disruptive behaviour, renders it
impossible for them to perform their
statutory function. That
is, in my view, the sole purpose of these provisions.”
Elsewhere
in the same judgment (at 614D),
WALLIS AJ
, with reference to
Section 142(8)(g) and (i) of the LRA said that these sections do not
“
elevate the position of a Commissioner or a designated
agent to the position of a Court.”
It
is so that Commissioners and designated agents deal daily with the
public which will generally be made up of employer and union
parties
in relation to matters where strong feelings and senses of grievance
or persecution may arise as
WALLIS AJ
suggests. Equally I am
able to agree that Commissioners are enjoined to deal with these
kinds of matters and emotions and behaviour
consequent thereupon as
WALLIS AJ
suggested “
robustly, with patience and a
measure of stoicism.”
I do
not believe that it at all means that if a person acts in breach of
the provisions of particularly Section 142(8)(g) and (i)
of the LRA
and a Commissioner or designated agent were to find him in contempt,
and refer such finding to this Court for an appropriate
order, that
in the event of this Court confirming the contempt finding it should
not, in making an appropriate order, do so with
the purpose of
protecting the dignity and status of the Commission, Bargaining
Councils, Commissioners and designated agents.
Such appropriate
order as the Court may make in respect of contempt in terms of
Sections 142(8)(g) and (i) of the LRA must leave
no doubt in the
minds of the public, with whom the Commission and Bargaining Councils
are to deal, that these bodies, and their
functionary Commissioners
and designated agents need to be treated with due respect. I believe
I cannot otherwise but than state
that if the Courts find that a
person has insulted, disparaged or belittled a Commissioner, or if he
has prejudiced or improperly
influenced the proceedings of a
Commission, or improperly anticipated a Commissioner’s award,
the kind of appropriate order
this Court will make will as
effectively as it could impose a sanction which would hopefully deter
the perpetrating by other parties
of such conduct.
Likewise,
if a person in the Commission or a Bargaining Council conducts
himself in a manner which, if done in relation to a Court
of law
would have been contempt of Court, he must expect to be treated very
much in the same manner as if he was held in contempt
of Court.
I can see no reason why Commissioners or designated agents must not
enjoy the appropriate level of respect from
parties appearing before
them or in their tribunals where they sit to determine disputes.
Quite
obviously the facts and circumstances of each matter will always have
to be considered to determine whether a party was wilfully
in
contempt of the Commission. If a person is found in contempt,
likewise all relevant facts and circumstances prevailing
at the time,
and relevant to the determination of an appropriate order, will also
have to be considered.
I
now turn to deal with the finding of contempt by Mr Coen de Kock, who
served at the time on the panel of Commissioners of the
National
Bargaining Council for the Clothing Manufacturing Industry. Mr
de Kock’s affidavit revealed the following
facts. He
stated therein that the events that caused him to find the respondent
in contempt of the bargaining council are
contained in the record of
the arbitration proceedings. He in his affidavit summarised
that whilst Mr Prinsloo was cross-examining
the dismissed employee in
respect of a Department of Labour form, to try and establish that a
previous employer had dismissed her,
the Commissioner intervened and
explained to Mr Prinsloo that the form in itself was not sufficient
for purposes of putting it
to the employee that she was dismissed.
Mr Prinsloo also attempted to use the form to establish that the
employee at no stage
had applied for sick leave benefits.
Prinsloo
then requested that the matter be postponed in order for the
Department of Labour officials to testify. This application
was
opposed by the Union. The Union then referred to the issue in
dispute agreed upon and stated that the line of cross-examination
had
no relevance to the issue in dispute. Prinsloo thereupon
confirmed that he was trying to establish that the employee
was not
an honest witness. Discussions between Prinsloo and the
Commissioner then ensued regarding the interpretation or
meaning of
certain words contained on the form. The Commissioner
then advised Mr Prinsloo that there would be cost
implications should
he want to postpone the arbitration hearing.
The
Union then submitted a Department of Labour document regarding
illness benefits, which indicated that the form was received
by the
Department of Labour on 17 October 2005. Mr Prinsloo was of the
view that he applicant was dismissed on 24 October
2005. The
Commissioner then explained to Prinsloo the difficulties involved in
relying on documentation which one had no knowledge
of and which in
essence constituted hearsay evidence.
Discussions
then ensued between Prinsloo and the Commissioner regarding what a
Department of Labour official had told Prinsloo.
The Union
again raised an objection to a postponement, submitting that the line
of cross-examination was irrelevant to the issue
in dispute.
Prinsloo then responded to the Union’s objection, with no
ruling having been made as yet, by stating that
there was a thing
like a review and that he will take it on review. The
Commissioner then advised Prinsloo that, should he
want to get an
official of the Department of Labour to testify based purely on an
issue regarding credibility, there would be cost
implications.
The Commissioner further advised Prinsloo that, if he wanted to seek
a postponement, he must make a formal
application to postpone the
arbitration hearing. The Commissioner however also advised
Prinsloo that the issue of costs would
be reserved. The Union
reiterated its objection to a postponement. It then asked for a
ruling on the postponement issue and
also in respect of the relevance
of the issues under discussion.
Prinsloo
asked for two minutes to get instructions from the employer regarding
the cost implications. The Commissioner however
first explained
to Prinsloo that there was a strong indication that what he was
putting to the employee was not correct and the
Commissioner again
raised the problem he had with hearsay evidence. The
Commissioner also advised Prinsloo that should he
want to delay the
proceedings purely based on a credibility issue, which did not
address the merits of the matter, he would need
to tender costs in
the event that his version proved to be incorrect. At that
point in time Prinsloo started taking money,
namely R100 notes, from
his wallet whilst he was standing and he started throwing the notes
one by one onto the table, stating
that he needed a paper saying that
he would get the money back on that day because he had spoken to
these people himself.
When
the Commissioner asked Mr Prinsloo what he was doing he responded
that he was paying for it because the Commissioner had said
he should
pay for it, that is obviously with reference to the postponement.
The Commissioner advised Prinsloo that he had
to tender costs and
further that his act of taking out money and throwing the R100 notes
on the table was viewed as a deliberate
and wilful attempt to
interrupt the arbitration proceedings and to belittle the
Commissioner. The Commissioner advised Mr
Prinsloo that he was
being arrogant in throwing money on the table. Prinsloo denied
being arrogant. The Commissioner
then reiterated that he was
arrogant and that he was in contempt by doing that, that is the
throwing of the money on the table.
The
Commissioner then asked Prinsloo whether he, the Commissioner, had
asked him to pay monies, and Prinsloo, according to the Commissioner,
incorrectly stated that the Commissioner had said he must pay the
money today. The Commissioner advised Prinsloo that he
had said
he should tender costs if he was proven to be wrong. Prinsloo
then continued by stating that it was fine, that he
would write out a
cheque.
The
Commissioner, in his affidavit, went on to say that Prinsloo did not
apologise for his behaviour of throwing the money on the
table but
instead he continued by stating that he would then write out the
cheque. According to the Commissioner, Prinsloo
then
incorrectly stated that he had said the issue was not relevant.
Prinsloo then again stated that he needed to get instructions
from
the employer party if the Commissioner was going to award costs.
The
Commissioner was then busy explaining to the Union, at its request,
the consequences of a postponement in relation to costs
when Prinsloo
interrupted the Commissioner. The Commissioner then specifically
addressed Prinsloo and asked him to have respect
and not to intervene
whilst he was talking to the Union official. The Commissioner
was of the view that Prinsloo’s
contemptuous behaviour then
continued in that he responded by stating that respect came from two
sides. The Commissioner
submitted that there was no reason
whatsoever for Prinsloo to have responded in this manner as, so
stated the Commissioner, up
to that point the Commissioner at no
stage had shown any disrespect towards Prinsloo.
The
Commissioner therefore requested Prinsloo to explain to him what
Prinsloo meant by stating “
it comes from two sides”
,
and the Commissioner insisted to be advised where he had not shown
respect for Prinsloo. Prinsloo refused to answer the
Commissioner’s questions. The Commissioner then repeated
himself and insisted on Prinsloo giving an explanation for
what the
Commissioner regarded as unfounded comments. The Commissioner
expressed the view that Prinsloo’s contemptuous behaviour
still
continued and that in the process Prinsloo had indicated to the
Commissioner that the Commissioner should not scream at him
and that
he, Prinsloo, was not the Commissioner’s dog. He asked the
Commissioner why the Commissioner was screaming.
The
Commissioner, in his affidavit, categorically denied that he was
screaming at Prinsloo. He said that it was indeed so
that he
spoke to Prinsloo in a stern manner as Prinsloo’s behaviour had
started to have a serious impact on the arbitration
proceedings.
The
Commissioner also contended that there was no reason whatsoever for
Prinsloo to say to him that he was not the Commissioner’s
dog.
The Commissioner contended that Prinsloo’s behaviour was
belittling in the extreme of him, the Commissioner, and
that it
negatively had impacted on the proceedings. The Commissioner
expressed the view that he had no doubt that had this particular
incident happened in a Court of law, Prinsloo’s actions would
have led to an immediate order of contempt.
The
Commissioner went on in his affidavit to state that, whilst he was in
the process of explaining to Prinsloo that his actions
constituted
contempt of the Commission, Prinsloo, without any basis, stated that
“
here comes a review, I see it already.”
The
Commissioner drew attention to the fact that he was still at that
time in the process of explaining to the Union the
consequences of a
postponement. According to the Commissioner, Prinsloo had
therefore improperly anticipated the Commissioner’s
award, as
the Commissioner at no stage had addressed the merits of the matter
and that he was at all times prepared to listen to
an application for
postponement.
At
this point in time the Union objected to Prinsloo’s conduct.
Prinsloo then again continued with his unacceptable
and contemptuous
behaviour, according to the Commissioner, when, whilst the
Commissioner was in the process of advising the parties
that he
needed to take an adjournment Prinsloo, again without any basis,
accused the Commissioner of being biased. The Commissioner
denied that he was biased and he contended that Prinsloo’s
accusation against him was without any basis and that it was
indicative of his unacceptable behaviour towards the arbitration
proceedings and the Commissioner himself.
Further
discussions then ensued between the Commissioner and Prinsloo, as
well as with the union representative in respect of the
events, and
in the end Prinsloo decided not to ask for a postponement after
having discussed the matter with his employer.
The
Commissioner, in his supporting affidavit, confirmed that the events,
which I have referred to above, formed the basis of his
conclusion
and his finding of contempt. It is accordingly based on these
facts that the Commissioner made the following comments
in his
finding of contempt, contained in his award:
“
Contempt
of the National Bargaining Council for the Clothing Manufacturing
Industry.
The
Main Collective Agreement specifically provides that
Section 142
of
the
Labour Relations Act 66 of 1995
is applicable to arbitration
proceedings conducted under the auspices of the council. It
states more specifically that an
Arbitrator shall have the powers of
a Commissioner in terms of
Section 142.
Section
142(9)
states that a Commissioner may make a finding that a party is
in contempt of the Commission for any of the reasons set out in
sub-section
(8). In context therefore the section reads that an
Commissioner who had been appointed to resolve disputes under the
auspices
of the Council may make a finding that a party is in
contempt of the Council for any of the reasons set out in sub-section
(8).
I
have found Mr Prinsloo’s actions as a representative of the
respondent party during the arbitration proceedings to be completely
unacceptable. His actions were disparaging, insulting,
belittling, to name but a few sentiments, and he further improperly
anticipated my award. He further continuously interrupted the
opposing party and when instructed to have respect to the other
side
he questioned my respect towards him without supplying any reasonable
foundation therefor. This was despite the fact
that he was
asked to explain his statement questioning my integrity. Mr
Prinsloo further, at one stage of the arbitration
proceedings, stood
up and counted and threw money on the table in response to me
requesting whether the respondent would tender
costs should it be
found that a postponement of the arbitration, on his request, was
unnecessary. Mr Prinsloo’s actions
in this regard were
contemptuous in the extreme.
I
have carefully considered the question whether to find Mr Prinsloo in
contempt or not, and I have found it both necessary and
essential for
me to do so and to refer his contemptuous actions and/or behaviour to
the Labour Court for an appropriate order.
I cannot allow
actions and/or behaviour such as experienced in this arbitration
proceedings to go unnoticed and unpunished as such
actions and/or
behaviour will surely have negative consequences in the eyes of the
public insofar as it relates to the credibility,
status and integrity
of our labour dispute resolution forums.
I
therefore find Mr Prinsloo in contempt of the Council insofar as his
actions and/or behaviour were in contravention of
Section 142(8)(g)
,
(h) and (i). It is to be noted that the above is not an all
inclusive list of the actions and/or behaviour that led to this
finding and that the record of the proceedings would be
self-explanatory in this regard.
I
must state, in conclusion, that Mr Prinsloo appeared before me in
another matter on 12 May 2006 and that he apologised.
I do not
know to what extent the apology was but nonetheless accepted his
apology in my own capacity to whatever extent it was
offered for.
This however is not, in my opinion, sufficient to excuse Mr
Prinsloo’s behaviour on the day in question,
as it is not only
me but also various other role players that were involved in the
arbitration proceedings, being the Council,
the Union, the applicant,
the CCA and the respondent. I do believe that he Labour Court
must make an appropriate order under
the circumstances of this case
in order to avoid any similar actions/behaviour from Mr Prinsloo in
future cases.”
Mr
Prinsloo was duly subpoenaed to appear before this Court. He
did appear on the determined date and was legally represented.
Both the applicants were also present in the person of Mr de Kock,
the Commissioner, and a representative of the Bargaining Council.
As
the applicants had in their referring papers not followed the
dictates of
Rule 7
of the rules of this Court, with Mr de Kock in
fact in his supporting affidavit having expressed the view that
“
there appears to be no precedent in the Labour Court,
Western Cape, regarding the manner in which applications/referrals of
this
nature needs to be made.”
It was therefor no
surprise that the respondent, Mr Prinsloo, had also not complied with
the requirements of
Rule 7.
He had not filed any opposing affidavit.
I accordingly called him to the witness stand, swore him in, and
sought his responses
to questions by the Court under oath. His
legal representative was allowed the opportunity to question Mr
Prinsloo as well.
As I had adopted an inquisitorial role when
questioning Mr Prinsloo, I did not deem it necessary, or appropriate,
to allow Mr de
Kock, or the representative of the Bargaining Council,
any opportunity to put any questions to Mr Prinsloo. Neither of these
parties
indicated that they wanted to put any questions or that they
believed that they had the right to cross-examine Mr Prinsloo.
It
is apparent that the Commissioner relied on a few specific acts on
the part of Mr Prinsloo in support of his conclusion of contempt.
These acts may be summarised as being that Mr Prinsloo responded to
an objection by the Union representative and before the Commissioner
had made any ruling, Prinsloo stated “
That is
fine,
because there is a thing like a review and I will take it on review.”
To
perhaps put this comment of Mr Prinsloo in context, it followed
directly after the Union representative had in effect objected
that
Mr Prinsloo was pursuing an issue, which was not the issue in
dispute. The Union stated on behalf of the applicant in the
arbitration that they would also be requesting that costs should be
awarded in favour of the applicant against the respondent.
It was in
direct response to this statement that Mr Prinsloo stated that which
I have recorded earlier on he had said. The
Commissioner is of
the view that this conduct of Prinsloo was an improper anticipation
of his award in breach of
Section 142(8)(g)
of the LRA.
Clearly
one must interpret Prinsloo’s statement as meaning that, in the
event of the Commissioner finding in favour of the
applicant, and
awarding costs against the respondent, who Mr Prinsloo represented,
then the Commissioner’s finding would
be reviewable and he will
take it on review. This remark having been made well in advance
of the Commissioner’s award,
it does in my view amount to an
improper anticipation of the Commissioner’s award. Surely
a party may only properly
conclude that an Commissioner’s
reward is in his view reviewable after evidence have been concluded
and
after
the award then had been handed down. Only then would a party
reasonably or property be able to assess whether, in its
view, the
Commissioner acted irregularly, misconducted himself, or exceeded his
powers, or generally speaking had come to irrational
or unjustifiable
conclusions.
To
state, as Prinsloo did, well in advance of an award, that if it goes
against the party he was representing, it would be reviewed,
is in my
view a breach of
Section 142(8)(g)
of the LRA.
Later
on in the proceedings, when the conduct of Prinsloo had induced the
Commissioner to say to Prinsloo that he was so close to
contempt,
Prinsloo said, “
Here comes a review, I see it already.
Okay Commissioner I am listening.”
I will in due course
deal with what preceded this comment of Prinsloo’s. The
conduct of Prinsloo immediately preceding
his statement that he could
see a review coming was perhaps the most seriously insulting or
disparaging of the Commissioner.
To then, in response to the
Commissioner at that point saying that Prinsloo was close to
contempt, respond that he could see a
review coming, is in my view
equally a breach of
Section 142(8)(g)
of the LRA, but I believe of a
more serious nature, having regard to the context in which it was
stated. I believe it was
intended to try to intimidate the
Commissioner to reconsider his view expressed, namely that Prinsloo
was close to contempt.
If not so intended, it clearly must then
have been intended to suggest to the Commissioner that his conduct at
that point was such
that it would justify a review. Even if the
conduct of the Commissioner may at that stage have given Prinsloo
reason to believe
that it was reviewable, I believe it is improper
for a representative to expressly advise a Commissioner that a review
would follow,
and to do so well in advance of the final conclusion of
the matter by the delivery of his award by the Commissioner.
The
next conduct on which the Commissioner relied for his finding of
contempt was that after he had advised Prinsloo that if he
wanted to
seek a postponement, there may be a cost implication, and also having
said that the respondent needed to tender costs,
when Prinsloo stood
up and started taking R100 notes from his wallet and throwing them
one by one on the table.
Prinsloo,
while so counting out the money, stated that he needed to hear what
the cost would be and that he needed a paper saying
that he was going
to get the money back. When questioned by the Commissioner what he
was doing, Prinsloo replied that he was paying
(presumably for the
postponement), as the Commissioner had said he must do so. When
the Commissioner accused Prinsloo of
being arrogant, Prinsloo denied
being so. The Commissioner then told Prinsloo again that he was being
arrogant and he advised
Prinsloo
that he had not said Prinsloo must pay the money, but that he must
tender the costs. Prinsloo persisted in stating that
the Commissioner
had said he must pay the money. When the Commissioner again stated
that he had not said Prinsloo must pay the
money, but that he had
said he must tender money, Prinsloo responded by saying it is fine,
then he would write another cheque.
It
is apparent from the record of the proceedings that Prinsloo said he
thought he was asked to pay the money. It is further apparent
that
further confusion arose, at least in the mind of Prinsloo, when he
offered to pay with a cheque.
Under
oath before me Prinsloo said that although he did regularly appear in
the Bargaining Council, this was the first time that
he was involved
in a matter where costs implications were alluded to by the
Commissioner, in the event of him seeking a postponement.
He
testified before me that he genuinely was under the impression first
that he must pay, and when the Commissioner told him it
was arrogant
to do so, he understood it to mean that he should not take out cash,
but should pay by cheque.
I
have repeatedly listened to the tape recorded record of the actual
event. I believe that at this particular point of the
proceedings tension levels had been rising. It is obviously
possible that
Prinsloo
could, under these circumstances, have misunderstood the implication
or meaning of the Commissioner advising him that he
would have to
tender costs, that he could have misunderstood that to be that he had
to pay there and then. That there was
a misunderstanding on his
part is further supported by the fact that the record reflects that
he then wanted to pay by cheque.
That his conduct could, as the
Commissioner did do, be regarded as arrogant, is understandable.
I am however of the view
that I must accept Prinsloo’s
explanation that he acted under the mistaken belief that he needed to
pay there and then.
He therefore did not have any intent, in my
view, to act on contempt of the Commission, and I therefore find that
this part of
his conduct was not in breach of any of the sub-sections
to
Section 142(8)
of the LRA.
Both
the record itself and the audible recording thereof reflect that
there then ensued a short period of calm amongst all the parties.
It was literally the calm before the storm. Whilst the
Commissioner was explaining to the Union representative the
consequences
of a possible postponement, he was interrupted by
Prinsloo. The Commissioner admonished Prinsloo not to interrupt
him and
to please have respect. The relevant part of the record
itself reads as follows:
“
ARBITRATOR
:
I certainly do not want to postpone the matter but if it is so
important for a party and that party… (interruption).
MR
PRINSLOO
: Commissioner…
(interruption).
ARBITRATOR
:
I am busy talking to her. Can you please have respect Mr Prinsloo.
MR
PRINSLOO
: It comes from two sides Mr
Commissioner.
ARBITRATOR
:
It comes from two sides what?
MR
PRINSLOO
: No, I …
(interruption).
ARBITRATOR
:
No, no, no, what do you mean by that?
MR
PRINSLOO
: It comes from two sides.
ARBITRATOR
:
From two sides what?
MR
PRINSLOO
: Respect.
ARBITRATOR
:
Where did I not have respect for you?
MR
PRINSLOO
: Commissioner I am not
answering that.
ARBITRATOR
:
No, no, you must answer me because you said it comes from two sides,
where did I not have… (interruption).
MR
PRINSLOO
: Why are you speaking to me
like that. I am not your dog. Why are you screaming to
me? Why are you screaming
at me Commissioner?
ARBITRATOR
:
Mr Prinsloo what are you saying to me?
MR
PRINSLOO
: Why are you screaming at me
Mr Commissioner, I am a normal man Mr Commissioner.
ARBITRATOR
:
You are so much, so close to contempt
with the action …
(interrupted).
MR
PRINSLOO
: That is why I am saying I am
keeping quiet now.
ARBITRATOR
:
I will appreciate it because then I can finish talking to Miss
Karolien.
MR
PRINSLOO
: Here comes a review, I see it
already. Okay Commissioner I am listening.
MS
SMALL
: Commissioner are we on record?
ARBITRATOR
:
No we are.
MS
SMALL
: I have got serious objections to
the conduct of the respondent, we are on the record, we have asked
you to explain to us, we have
got a member that we need to explain to
the implications of a postponement and I really have serious problems
with the conduct
from the respondent’s side.
ARBITRATOR
:
Actually what I am going to do is I am going to adjourn and I am
going to just ask for some guidelines in terms of what I am to
do in
this matter, I know what to do but I want to get the Council’s
approval because the last statement goes even further,
more in terms
of being contempt by saying here comes a review, when I have not even
touched the merits of the matter, …
(interruption).
MR
PRINSLOO
: Commissioner I am
saying you are
biased.
ARBITRATOR
:
You said, how can I be biased Mr Prinsloo?
MR
PRINSLOO
: That is my perception, can I
explain without being interfered?
ARBITRATOR
:
Yes.
MR
PRINSLOO
: First of all …
(interruption).
ARBITRATOR
:
Who interfered with you in the first place?
MR
PRINSLOO
: Okay, first of all let me
explain to you what I am going to do. First of all I have got
this paper, now I am cross-questioning,
as soon as I start
cross-questioning you say to me fine, you are not allowed to do that,
alright, I say fine Commissioner, I am
asking you then seeing that
you are not allowing me, because now I cannot test her credibility, I
cannot test her credibility,
now this is where the whole argument
is. Now you say you cannot see the merits of the case because
of this and credibility
is quite important because we are saying that
she is lying, that is our argument.
ARBITRATOR
:
…. (inaudible) Why do you think I am biased, I have
never in my whole life been biased, this is the problem, you
are not
listening to me, I am allowed
to give you a postponement just
on one condition, now you come in and say but I am saying it is not
relevant, I am about to give
you a postponement based on credibility,
how can you say I am not going to give it to you? All I said is
if you are proved
to be wrong on the assumptions from this letter
then what you must do is pay the costs, that is all I said.
MR
PRINSLOO
: And I did not do it out of
disrespect, and this is now really, I thought you said I must pay up
front before I can have, the costs,
it was not trying to be arrogant,
and I would have taken out my credit card but I do not have it with
me.
ARBITRATOR
:
You know and now you come and say to me that this case will be on
review, I have not even touched the merits, I do not even know
what I
am going to decide. I have to deal with hearsay document, that
document is hearsay, I have got an obligation, now
I am being met
with I do not have respect of you, which I do not know where that
comes from, there is money being put on the table,
I am being told,
and this is contempt by itself, by telling an Arbitrator that this
matter will go on review.
MR
PRINSLOO
: That is surely my right to do
that Commissioner.
ARBITRATOR
:
You do not even know what the outcome is.
MR
PRINSLOO
: But what I am seeing here is
what I am perceiving to see it makes me think.
ARBITRATOR
:
But what do you see, I am about to give you what you want?
MR
PRINSLOO
: No, all I asked you at this
stage, no Commissioner, you are saying one moment I will give it to
you and I said to you alright,
can I just speak to the employer if he
is prepared to do it, which you have not done yet.
ARBITRATOR
:
We have not finished it yet.
MR
PRINSLOO
: Alright, secondly of
all you are saying too that you do not see the relevance of it.
ARBITRATOR
:
No man, you are not listening to me Mr Prinsloo.
MR
PRINSLOO
: Can we just play it
back and we can listen.
ARBITRATOR
:
You are not listening, I know what is on the record, I know what I
said, I said there is no relevance to the merits of the
matter, I
said that it is obviously, obviously it goes to credibility.
MR
PRINSLOO
: Commissioner can I just
deal with credibility. There is a very clear rule, …
(indistinct) what
she says, she says she did do it.
ARBITRATOR
:
You are talking about he merits, I am agreeing with you, I never said
I am not going to give you postponement, let us just
look at the
credibility. You are arguing this on credibility and I am
dealing with the matter on credibility, and I said
to you that if
that is so important to you and you tender costs, if you are correct
there is no costs, because you are correct,
but if you are not
correct then obviously it means that this, whatever, somebody
misinformed you, it means that the Council has
incurred costs, I
cannot see how you can perceive me to be biased?
UNIDENTIFIED
PARTY
: Can I just ask one
question?
ARBITRATOR
:
Yes sure.
UNIDENTIFIED
PARTY
: What costs, or what
is the value of the costs?
ARBITRATOR
:
R1 500.
UNIDENTIFIED
PARTY
: Well considering we
are here for half a day?
ARBITRATOR
:
R750.
UNIDENTIFIED
PARTY
: I would say I need
to know what costs I am looking at before I can say yes or no.
ARBITRATOR
:
I know … (indistinct) normal fees is about R2 600/2 700.
MR
PRINSLOO
: That is ridiculous
because the other day it was still … (indistinct).
ARBITRATOR
:
So we are looking at maybe half of that because we may have to come
back for another half a day.
UNIDENTIFIED
PARTY
: So we are looking at R1
500 at most, okay, I just needed to get clarity on that.
MS
SMALL
: That is precisely the
reason why we asked for an explanation so that we can understand, you
know … (interruption).
ARBITRATOR
:
I was busy explaining that.
MR
PRINSLOO
: Then I am sorry I
interfered, I thought you were … (indistinct) I apologise
then.”
Prinsloo’s
explanation of these events when he testified before me was that the
Commissioner had raised his voice. In fact
he said at the time, and
in his testimony before me, that the Commissioner had screamed at
him. I have listened to the tape
recording of the arbitration
hearing a number of times. Whilst the Commissioner’s tone
of voice may have changed, understandably
so, having regard to the
reason therefore, namely Prinsloo interrupting him, there is no basis
for Prinsloo’s proposition
that the Commissioner screamed at
him. Prinsloo’s statement in response to the
Commissioner, asking him to have respect,
obviously for the
Commissioner, to the effect that respect comes from two sides,
clearly implied, if not expressly, then so suggesting,
that the
Commissioner had not treated him, Prinsloo, with respect. When
the Commissioner immediately demanded to be told
where he had not had
respect for Prinsloo, Prinsloo replied that he is not going to answer
that. This I must say was to be expected,
as I am of the view that
Prinsloo could not then, and did not before me, come up with any
evidence of disrespect having been shown
to him by the Commissioner.
It follows that this accusation of Prinsloo was baseless. I
believe it was an insulting
and disrespectful comment and in contempt
of the Commissioner.
When
the Commissioner insisted to be answered where he was disrespectful,
his voice could be described as intense. He certainly
was not
screaming and in my opinion not speaking in any manner which in any
way may have justified Prinsloo’s next verbal
attack on the
Commissioner, which is what I believe he was launching, when he again
asked the Commissioner why he was screaming
at him and demanding not
to be treated like a dog. Again, there is not an iota of
evidence, either in the record or from
the audible recording of the
proceedings that the Commissioner had screamed at Prinsloo, or had
treated him in any manner other
than what one could reasonably expect
from him. Prinsloo’s voice, on the other hand, bristled
with emotion. The
Commissioner, who experienced the events
firsthand, in his affidavit and his award, described Prinsloo’s
conduct as contemptuous
and belittling in the extreme and that it
negatively impacted on the proceedings.
Having
perused the written record, and having listened to the recorded
version thereof, I have no reason not to agree with the
Commissioner’s conclusions and I find that this conduct of
Prinsloo was in contempt of the Commission.
It
was at this point that Prinsloo, for a second time, anticipated the
Commissioner’s award by saying, “
Here comes a review.
I see it already.”
I have already dealt with this aspect of
Prinsloo’s conduct. Not letting up, when the Commissioner
then indicated that
he was going to adjourn to seek guidelines on
what to do, Prinsloo launched what I believe one can under the
circumstances justifiably
describe as a further attack on the
Commissioner by now all of a sudden accusing the Commissioner of
bias. On top of that
he clearly implied that the Commissioner
had interfered with him. A long discussion ensued. Whilst
it appears that
the Commissioner did not consider this particular
statement of Prinsloo as part of his conduct which constituted
contempt of the
Commission, the record reflects that after the
Commissioner was asked, it would appear by the employer party
himself, what the
amount of the costs was, the Commissioner said
something to the effect that the normal fees were about R2 600 to R2
700, to which
Prinsloo responded “
That is ridiculous,
because the other day it was still”
What he said further is
indicated as being indistinct. Later on, the Commissioner
indicates that he was busy explaining the
costs aspect and then one
sees Prinsloo apologising to the Commissioner for having interfered.
I
believe the conduct of Prinsloo, which I have referred to, but with
the exception of the incident where he threw money on the
table,
clearly amounted to contempt of the Commission. Prinsloo had no
basis for accusing the Commissioner of screaming,
nor did he have any
basis for accusing him of having been disrespectful towards him.
Likewise there was no basis whatsoever
for Prinsloo saying to the
Commissioner that he treated him like a dog, or that there was any
basis for Prinsloo’s accusation
levelled at the Commissioner
that he was biased. Similarly his allegation that the
Commissioner had interrupted him is without
foundation.
His
response to a statement of the Commissioner that it was ridiculous,
in my view, was the final conduct of Prinsloo which ineluctably
drove
me to the conclusion that Prinsloo acted in utter
disdain
and with disrespect of the Commissioner. He in addition, more
than once, improperly anticipated the Commissioner’s
award.
I am
accordingly satisfied that the Commissioner’s finding of
contempt stands to be confirmed. Before making such order
as I
deem appropriate, it is, I believe, necessary to comment briefly on
Section 142(10)(c)
of the LRA. It reads:
“
(10)
Before making a decision in terms of sub-section (11), the Labour
Court –
(a)
……
(b)
……
(c)
may make any order that it deems
appropriate, including an order in the case of a person who is not a
legal practitioner that the
person’s right to represent a party
in the Commission and the Labour Court be suspended.”
It
is not understood how the Court would be able to make an order
suspending a person’s right to represent a party in the
Commission and Labour Court prior to first making a decision in terms
of
Section 142(11)
of the LRA. It will be remembered that in
terms of
Section 142(11)
of the LRA the Court may confirm, vary or
set aside the finding of a Commissioner. Logic dictates that
only once the Court
has found a person guilty of contempt, will it
make an appropriate order. One can understand that, before
making its decision,
the Court, in terms of
Section 142(1)(c)
of the
LRA making any order it deems appropriate in respect of the
proceedings before it, in addition to subpoenaing the person
found in
contempt, or subpoenaing any other person to appear before it.
Interpreting
Section 142(10)(c)
of the LRA so that it makes sense, I
am of the view that this Court is given the power to make any order
it deems appropriate,
which may include suspending the right of a
person other than a legal practitioner to represent a party in the
Commission and the
Labour Court. This may include suspending
the person’s right to represent a party in a bargaining
council.
On
behalf of Mr Prinsloo I was urged to have regard to the evidence as a
whole and not just to the specific instances of conduct
of Prinsloo
which was unacceptable. I was asked to consider particularly
Prinsloo’s alleged frustration with the process
involving him
seeking a postponement, and the Union representative who became
involved. I was urged to consider that Prinsloo
could perceive
the amount of questioning by the Commissioner as having displayed
possible bias and that the Commissioner did not
want to give Prinsloo
a chance to put his case. I was also asked to consider the
length of time spent on the issue of the
witness Prinsloo wanted to
call, and the postponement he sought in order to do so. It was
suggested in mitigation that the
Commissioner might have exceeded his
powers by interfering too much. I was also asked to consider that the
Union representative
was also reprimanded shortly before the
incidents which led to the Commissioner’s finding that Prinsloo
was in contempt of
the Commission.
This
is with reference to the Union representative having said that she
thought it would be irresponsible, obviously implying of
the
Commissioner, to postpone the matter. The Commissioner
indicated that he took serious offence to the remark. The
suggestion was that this remark was no less contemptuous than that of
Prinsloo. I was asked to consider that the Commissioner
had
screamed at Prinsloo. It was suggested that matters had gone wrong
after a number of small incidents. It was also argued
that
nowhere did the Commissioner say Prinsloo was in actual contempt but
he a number of times indicated that Prinsloo was close
to being in
contempt.
I
was also asked to have regard to the fact that Prinsloo had
approached the Commissioner and had subsequently apologised.
I
was asked not to view the apology as an admission that Prinsloo was
in contempt. It was suggested that a number of small
incidents
had added up to emotions boiling over. I was asked not to
suspend Prinsloo’s right to represent parties as
that would be
too extreme a punishment. It was suggested that a serious
warning or, as was put, a rapping over the knuckles,
would suffice.
A fine, suspended in whole on condition that Prinsloo was not found
guilty of contempt in a stipulated period,
was suggested.
What
I do not accept as valid grounds in mitigation of Prinsloo’s
conduct is that he had any reasonable ground to perceive
the
Commissioner to be biased. I also cannot see how the offensive
conduct of the Union representative should be mitigating
of
Prinsloo’s conduct. It cannot be seriously suggested that
because she got away with her conduct, Prinsloo should
be treated
lightly. I also reject the contention that Prinsloo was not
given a chance to put his case.
The
suggestions that the Commissioner may have exceeded his powers, or
that he screamed, are also rejected. That the Commissioner
a
number of times advised Prinsloo that he was close to contempt, if
anything, is an aggravating circumstance, as I do not believe
Prinsloo heeded any of these clear messages from the Commissioner.
I
will, however, take the other factors raised in mitigation into
consideration when deciding on an appropriate sanction.
The
CCMA and Bargaining Councils perform an essential service within the
employment and labour relations arena. These institutions,
and
the Commissioners and the Arbitrators fulfil their duties, sometimes
under less than ideal circumstances. Their workloads are
heavy. That
they at all times need to perform their duties with the necessary
decorum, goes without saying. That they are
to be respected is
equally true. No doubt must be left in any person’s mind
that if he or she falls foul, particularly
of the dictates of
Section
142(8)(g)
, (h) and (i) of the LRA by in any way conducting themselves
by insulting, disparaging or belittling Commissioners, or improperly
anticipating a Commissioner’s award, or wilfully interrupting
or misbehaving during conciliation or arbitration proceedings,
or in
any manner acting in contempt of the Commission, they will be treated
appropriately by being suspended from appearing in
these forums, or
by imposing fines and in extreme cases by possibly being imprisoned.
The
perception must not be allowed that to be in contempt of the
Commission or of Bargaining Councils, its Commissioners or
Arbitrators,
will not amount to a serious offence which, where and
when necessary, will be met with serious sanctions, including fines,
and
as I said, possible imprisonment.
Having
taken all these factors into consideration, and whilst I am aware
that part of Prinsloo’s responsibilities is the representation
of parties in the Commission and Bargaining Councils, I believe that
he must be reminded by the sanction I intend imposing that
his
contempt of the Commissioner and of the Bargaining Council is
regarded as serious. I have considered a fine, but believe
that
a period of suspension of Prinsloo’s right to representation in
the Commission, Bargaining Council, and this Court,
to be the most
appropriate order.
The
order which I accordingly make is the following:
1.
The finding of the Commissioner in case
number CCA169-05 dated 16 May 2006, that Mr Prinsloo is in contempt
of the Council insofar
as his behaviour were in contravention of
Section 142(8)(g)
, (h) and (i) of the
Labour Relations Act is
confirmed.
2.
Mr Prinsloo’s right to represent a
party in the CCMA, any Bargaining Council and the Labour Court is
suspended for a period
of six months from the date this order is
handed down in Court. Five months of this suspension of Mr Prinsloo’s
right of
representation is suspended for two years on condition that
during this period of suspension he is not found guilty of contempt
in terms of
Section 142(8)(g)
and/or (h) and/or (i) of the
Labour
Relations Act.
3.
Should
Mr Prinsloo during the month that
his rights of
representation have been suspended represent or
attempt to represent any party in the mentioned forums, the whole of
the sanction
imposed in paragraph 2 of this order, or any other
appropriate order may on application to this Court by any party then
be imposed.
4.
Mr Prinsloo is ordered to pay such costs as
the Council herein may have incurred in referring the finding of
contempt to this Court.
DEON
NEL
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING: 20 November 2006
DATE
OF JUDGMENT: 27 March 2007
APPEARANCE:
For
the Bargaining Council for the Clothing Manufacturing Industry:
Adv.
C. de Kock (Arbitrator)
For
the Respondent: Mr. W.P. Welgemoed of Bornman & Hayward Atts.