About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2009
>>
[2009] ZALCCT 5
|
|
Trustees for the Time Being of the National Bioinformatics Network Trust v Jacobson and Others (C249/09) [2009] ZALCCT 5 (14 April 2009)
THE
LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NO. C249/09
In
the matter between:
THE
TRUSTEES FOR THE TIME BEING
OF
THE NATIONAL BIOINFORMATICS
NETWORK
TRUST
Applicant
And
MR
DANIEL ALLAN JACOBSON
First
Respondent
NR
MAZWI
N.O.
Second
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Third
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in which the applicant seeks an order
restraining the second respondent (the commissioner) from
continuing
with arbitration proceedings conducted under the auspices of the
third respondent (the CCMA) pending the outcome of
an application for
review that the applicant undertakes to file. The application for
review relates to certain preliminary rulings
made by the
commissioner. The application was heard over the telephone at noon on
8 April 2009. After considering the submissions
made by Adv
Rautenbach (who appeared for the applicant) and the first respondent
(who elected to oppose the application without
legal representation
and without filing an answering affidavit), I ruled that the
application should be dismissed, with costs.
These are my brief
reasons for that ruling.
[2]
The applicant dismissed the first respondent (Jacobson) after a
protracted disciplinary enquiry into allegations of misconduct.
The
enquiry was the antithesis of what is contemplated by the Code of
Good Practice: Dismissal, Schedule 8 to the Labour Relations
Act. The
enquiry was chaired by a senior counsel, and both the applicant and
Jacobson were represented by legal practitioners.
The enquiry was
conducted over a period of months, resulting in a transcript
(excluding documentary evidence) exceeding 5 000 pages,
and a finding
comprising some 450 pages. The applicant referred an unfair dismissal
dispute to the CCMA on date. After an unsuccessful
conciliation, the
dispute was referred to arbitration. On 25 March 2009, the
applicant’s attorneys wrote a letter to the
CCMA, requesting
the right to legal representation at the arbitration proceedings. On
31 March 2009, the CCMA responded, noting
that the application failed
to comply with rule 30 of the CCMA rules, and advising the applicant
that it would be entitled to present
argument on legal representation
when the arbitration proceedings commenced. The letter also stated
“You must be prepared
for the hearing as it will proceed after
the commissioner has made his ruling on legal representation.”
The applicant avers
that it then found itself in a dilemma – it
was uncertain whether to instruct an attorney (which would have
involved a perusal
and consideration of the voluminous documentation)
and expend the necessary funds before knowing whether the right to
legal representation
would be granted. On 6 April 2009, an employee
of the applicant, a Dr Msomi, applied for the right to legal
representation. He
placed emphasis on the public importance of the
matter, the importance of the trustees’ fiduciary duties, and
the factual
and legal complexity of the matter. After hearing
argument presented by the applicant as to why it should be granted
the right
to legal representation, the commissioner refused the
application. The applicant then brought an application for the
recusal of
the commissioner, on the basis it would appear that the
commissioner lacked an appreciation of the importance of the
management
of public funds. The commissioner refused this
application. These are the rulings that the applicant intends to
review. On
7 April 2009, the applicant instructed its attorneys
of record in these proceedings to have the arbitration proceedings
stand down
to enable the applicant to bring an application for the
urgent review of the commissioner’s rulings. The commissioner
also
refused this application, hence the initiation of this
application.
[3]
This court has jurisdiction in terms of s 158 (1) (g) to review
interlocutory rulings made by commissioners, and is empowered
generally by s158 (1) (a) (i) to grant urgent interim relief. In
criminal and civil proceedings, intervention by way of interdict
in
uncompleted proceedings is exceptional – the exercise of this
power has been held to be confined to those rare cases where
a grave
injustice might otherwise result or where justice might not by other
means be attained. In general the court will hesitate
to intervene,
having regard to the effect on the continuity of the proceedings in
the court below and to the fact that redress
review or appeal will
ordinarily be available. (See
Wahlhaus &
others v Additional Magistrate, Wynberg & another
1959
(3) SA 113
(A), and
Ismail & others
v Additional Magistrate Wynberg & another
1963 (1) SA 1
(A). Mr Rautenbach implied that the court ought to
adopt a broad view on what constitutes a grave injustice, and
referred to
Olivier v Universiteit van
Stellenbosch
[2006] JOL 18108
(C), a
case in which the High Court intervened in the conduct of a
disciplinary hearing, setting aside a decision not to postpone
the
hearing. However, as Cheadle AJ observed in
Booysen
v SAPS & another
[2008] ZALC 87
;
[2008] 10 BLLR 928
(LC), that decision was partly based on an alleged violation of
constitutional rights to fair administrative action and access
to
information, a matter since addressed and an avenue now closed by
Chirwa v Transnet Ltd & others
[2008] 2 BLLR 97
(CC).
[4]
There are at least two reasons why the limited basis for intervention
in criminal and civil proceedings ought to extend to uncompleted
arbitration proceedings conducted under the auspices of the CCMA, and
why this court ought to be slow to intervene in those proceedings.
The first is a policy-related reason – for this court to
routinely intervene in uncompleted arbitration proceedings would
undermine the informal nature of the system of dispute resolution
established by Act. The second (related) reason is that to permit
applications for review on a piecemeal basis would frustrate the
expeditious resolution of labour disputes. In other words, in
general
terms, justice would be advanced rather than frustrated by permitting
CCMA arbitration proceedings to run their course
without intervention
by this court. This conclusion was recently underscored by the
Constitutional Court.
In Commercial
Workers Union of SA v Tao Ying Metal Industries & others
(2008) 29
ILJ
2461
(CC), Ngcobo J stated:
“
The
role of commissioners in resolving labour disputes is set out in s
138(1) of the LRA which provides:
‘
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.’
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes. This alternative process
is intended
to bring about the expeditious resolution of labour disputes. These
disputes, by their very nature, require speedy
resolution. This
requires commissioners to deal with the substance of a dispute
between the parties. They must cut through all
the claims and
counter-claims and reach for the real dispute between the parties. In
order to perform this task effectively, commissioners
must be allowed
a significant measure of latitude in the performance of their
functions” (at paragraphs 62, 63 and 65).
[5]
The limitation on the right to legal representation is an integral
element of a system of expeditious and informal dispute resolution.
The default position established by rule 25 of the CCMA rules
is that in cases of dismissal for misconduct and incapacity,
a party
to arbitration proceeding is not entitled to be represented by a
legal practitioner unless the commissioner and the parties
consent,
or the commissioner concludes, after considering specified factors,
that it is unreasonable to expect a party to deal
with the dispute
without legal representation.
[6]
Reverting to the facts of the present case, the effect of the
commissioner’s ruling is that the arbitration continues
with
both parties not represented by legal practitioners. Mr Rautenbach
submitted that in these circumstances, the conduct of the
applicant’s
case might be prejudiced, unattuned to the niceties of legal
procedure as those currently representing the applicant
are, for
example, by making admissions they need not make or more generally by
failing to cross-examine witnesses with the skill
of a seasoned legal
practitioner. This submission overlooks the fact that any
disadvantage consequent on a lack of legal representation
is equally
borne by the applicant and Jacobson, and that the commissioner’s
primary obligation is to conduct the proceedings
with the minimum of
legal formality, providing guidance on the conduct of the proceedings
to the parties and their representatives
where this is appropriate.
In so far as the factual and legal complexity of the dispute is
concerned, there is nothing in the papers
before me to sustain the
argument that this matter is so complex that a failure to intervene
at this point by interdicting the
proceedings will result in a grave
injustice. The applicant chose to ignore the informal workplace
procedures prescribed by the
Code of Good Practice and to conduct a
disciplinary enquiry, at great expense to the taxpayer no doubt, in a
form that would make
any criminal court proud. I have previously had
occasion to comment on the profitable cottage industry
[1]
that has developed from the application of unnecessarily complex
workplace disciplinary procedures, and how inimical the actions
of
some practitioners, consultants, so-called trade unions and employer
organisations and the various other carpetbaggers who populate
this
industry are in relation to the objectives underlying the LRA.
[2]
The fact that the arbitration proceedings may raise, as the applicant
submits, intricate legal questions concerning the law of
trusts and
Jacobson’s fiduciary duties and that there is a broader public
interest in the matter, are all issues that the
applicant will in due
course be entitled to address should it seek later to review the
commissioner’s award and to subject
the commissioner’s
decisions and the reasons underlying them, to scrutiny by this court.
In short, the applicant failed to
establish a prima facie right, even
subject to some doubt.
[7]
For these reasons, I dismissed the application, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing and order: 8 April 2009
Reasons
furnished on: 14 April 2009
Appearances:
For
the applicant: Adv Rautenbach
Instructed
by: Deneys Reitz Attorneys
For
the respondent: In person
[1]
The term is borrowed from the judgment by Wallis J in
Cele
v South African Social Security Agency and 22 related cases
2008 (7) BCLR 734 (D)
[2]
Avril
Elizabeth
Home
for the
Mentally Handicapped v CCMA & others
[2006] 9 BLLR 833
(LC). Section 188A of the Act is particularly
suited to the expeditious determination of allegations of
misconduct.