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[2008] ZALCD 16
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Chetty v Rustenburg Platinum Mines Ltd and Others (D663/05) [2008] ZALCD 16 (17 June 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT DURBAN
CASE
NO: D 663/05
Not
Reportable
In the matter between:
THAMINDRAN
CHETTY
Applicant
and
RUSTENBURG PLATINUM
MINES LTD
1
st
Respondent
HLALELE MOLOTSI
N.O
2
nd
Respondent
COMMISSION FOR
CONCILIATION
,
MEDIATION
AND
ARBITRATION
3
rd
Respondent
JUDGMENT
17
JUNE 2008
PILLAY
D, J
This is an application
for leave to appeal against a judgment of the Court granted
ex-tempore on 4 December 2007.
Since
Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC)
the review of decisions of commissioners is more the exception than
the rule. As Mr Myburgh points out, to date, there is
not a
single reported decision of the Labour Appeal Court in which a
decision of a commissioner has been overturned. This
Court’s
recollection of its own judgments is that few reviews succeed. In
essence, therefore, the setting aside of a decision
of a commissioner
is rare following
Sidumo
.
In
this case, however, an exceptional situation arose because the Court
found that the first respondent did not litigate honourably.
When
making an interim ruling earlier in the proceedings on that day, the
Court had found that the parties were disposed to postponing
the
matter. However, in dealing with the substantive issues
following the interim ruling, the Court found that the respondent
had
not litigated honourably. The basis for this finding was that the
first respondent persisted in denying that it had been disposed
to
postponing the matter. By that stage of the proceedings the Court’s
earlier finding that the parties had been disposed
to postponement
strengthened to a finding that the parties had in fact agreed to a
postponement. For that reason the Court found
that the respondent had
not litigated honourably in the proceedings before the CCMA.
A
finding that a party has not acted honourably, particularly where
that party is a public company, is a serious indictment.
Another Court may on the same facts draw a different inference. For
that reason alone the application for leave to appeal should
be
granted.
A
further reason for granting the appeal is that, as stated earlier,
the review of decisions of commissioners is exceptional following
Sidumo
.
With
regard to the cross-appeal, the Court declined to allow oral evidence
because it had found in favour of the applicant employee
that there
had been agreement to postpone the matter and that the respondent had
acted dishonourably; hence the reason for leading
oral evidence had
fallen away. To lead oral evidence in review proceedings is
extraordinary. In any case, by the time the
matter had reached
this Court, and in the light of the discussions at the hearing, the
issues had reached a stage where oral evidence
seemed pointless.
These developments might not have been before Acting Justice Broster
when he directed that the parties
should refer an aspect of the
dispute for oral evidence. In the circumstances the first ground of
the cross-appeal must fail.
Given
that the Court has a discretion as far as costs in labour matters are
concerned, it exercised its discretion not to award
any costs.
The cross-appeal on these two grounds must therefore fail.
In the
circumstances the Court
GRANTS LEAVE TO
APPEAL TO THE APPELLANT EMPLOYER WITH COSTS BEING COSTS IN THE
APPEAL
.
THE
COURT DISMISSES THE CROSS APPEAL WITH COSTS.
_____________
Pillay D, J
Date:
24 October 2008
APPEARANCES
:
For
the Applicant:
Adv Myburgh instructed
by Leppan Beech Inc
For
the Respondent:
Adv Crampton instructed
by Tomlinson Mnguni Jame