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[2011] ZALCJHB 73
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Harris and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR2019/11; J1748/11) [2011] ZALCJHB 73; [2012] 2 BLLR 178 (LC); (2012) 33 ILJ 408 (LC) (26 August 2011)
LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case: JR 2019-11
J 1748-11
In the matter between:
NICO HARRIS AND FIVE OTHERS
…...................................................
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
….............................................................
First
Respondent
VIRGIL RABIE
…..................................................................
Second
Respondent
ESKOM HOLDINGS SOC LIMITED
…....................................
Third
Respondent
JUDGMENT
LAGRANGE, J:
Introduction
This is an application to set aside
subpoenas served on six individuals employed by Eskom Holdings Soc
Ltd issued by a senior
CCMA Commissioner. There is also a related
application to condone the non-compliance of the subpoenas with
section 142(2)
of the
Labour Relations Act, 66 of 1995
, which is
incidental to the main application even though it was initiated
under a separate case number. The subpoenas require
the applicants
to appear at an arbitration hearing due to commence on Monday, 29
August 2011 to give evidence and to produce
certain documents. The
applicants request the subpoenas to be set aside on a number of
grounds.
Lack of authority
The first ground raised by the
applicants is that the subpoenas were not signed by the director of
the CCMA in accordance with
section 142
(2) of the
Labour Relations
Act 66 of 1995
.
Section 142(2)
states, amongst other things, that a
subpoena issued for any purpose in terms of subsection 142 (1)
"must be signed by
the director". It was common cause
between the parties at the hearing that the director had not signed
the subpoenas in
question. On the face of that fact there was
prima
facie
evidence that, whatever the substantial merits of the
subpoenas were, they did not comply with the signatory requirement
of
section 142.
In response to this challenge to the legality of
the subpoenas, the second respondent, Mr Rabie, obtained various
assurances
from CCMA officials that the signatory had the necessary
delegated authority from the director to sign in her stead.
However, at the time the matter was
heard, the respondent had been unable to obtain a copy of the
delegation of authority itself.
Given the fact that the applicants
had only raised the issue of the signature in the application
itself, which was only served
on Rabie the day before the main
application was set down for hearing, I granted his attorneys an
extended opportunity to obtain
proof of the delegation by close of
business the following day. On that day, 25 August 2011, the second
respondent filed a
further affidavit attached to which was a copy
of the delegation he had tried to obtain earlier. According to the
affidavit
to which the delegation was attached it now emerged that
the delegation of authority to sign subpoenas had only been granted
to Convening Senior Commissioners or Acting Convening Senior
Commissioners. In this instance, the Commissioner who had signed
the subpoenas was a senior Commissioner who was not functioning in
either of those capacities. Consequently, it must be concluded
that
the person signing the subpoenas did not have the necessary
delegated authority to do so. As such, the subpoenas did not
comply
with
section 142
(2) of the LRA.
As a result of this turn of events,
the second respondent has asked the court to condone the absence of
a properly authorised
signatory to the subpoenas and to declare the
subpoenas valid and effective. Regrettably, the court has no power
to rectify
the lack of authority by substituting its own for that
of the person designated in the LRA as authorised to sign the same.
In consequence, the subpoenas must
be set aside for want of compliance with
section 142
(2).
Costs
The applicants had asked for a cost
award in its favour, including the cost of two counsels, in the
event that they were successful.
This is not a case in which I
believe such an order is deserved.
Firstly, the applicants only raised
the point on which they were ultimately successful at the 11th hour
when they launched the
application despite being in communication
with the second respondent’s attorneys for more than a week
prior to the application
being launched. Secondly, the applicants
ultimately succeeded not on the basis of successfully challenging
the substantive
merits of the issuing of the subpoenas, but on a
fortuitous error on the part of the CCMA. I do not intend to dwell
at any
length with the substantive merits of the requested
subpoenas, but because that issue is relevant to the question of
costs
I will address it briefly.
In the pending unfair dismissal
arbitration before the CCMA it is common cause that he was
ultimately dismissed for misconduct
relating to a failure to
disclose his interests in terms of his employer's policy. Much of
the documentation requested in terms
of the subpoenas was for
similar declarations of interest made by the applicants. Other
documentation requested in the subpoenas
might have been relevant
to a claim that one or more of the applicants could have acted in a
way which raised a potential conflict
of interest, but for which
they were not disciplined. The applicants had also objected to the
subpoenas on the basis that they
disputed the relevance of the
documentation requested or that the documentation was specified in
insufficient detail. In the
course of argument at the first hearing
on the main application some possible ambiguities regarding the
documentation requested
were clarified, and the applicants’
counsel conceded that there may have been a
bona fide
misunderstanding about the nature of some of the requests.
Mohamed CJ said in
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3)
SA 721
(SCA)
that the
right of a litigant to obtain the issue of the subpoena is one that
should not be abused, but by the same token the
court should be
cautious in exercising its powers to set one aside on the basis
that it constitutes an abuse of process.
1
In the context of subpoenas issued
by the CCMA it is arguably even more important that the court
should exercise vigilance to
ensure that litigation over incidental
procedural issues like the issuing of subpoenas by the CCMA does
not become an avenue
which parties opportunistically exploit with
the intention of complicating rather than simplifying arbitration
proceedings.
The cautious approach of the High Court to the setting
aside of subpoenas is particularly apt with reference to the
functioning
of an arbitral forum, which the legislature clearly
intended should be conducted expeditiously and with a minimum of
legal
formalities. The requirements of fairness, speed, minimal
legal formalities and an emphasis on the substantive issues in
dispute
were clearly identified as the qualities that were
considered necessary to ensure that the arbitration channel of
dispute resolution
would be effective.
2
These principles must be kept in
mind when entertaining applications of this sort.
The applicants may have their own
views on the relevance of their own declaration of interests to the
respondent's case, but
it is not inconceivable that if he can
demonstrate that the employer chose to turn a blind eye to other
employees with conflicts
of interest or if it was aware of other
employees who had failed to disclose their interests, such evidence
might lay a basis
for a case of substantive fairness based on the
employer's unfairly selective initiation of disciplinary
proceedings. Alternatively,
such evidence might cast doubt on
employers claim that it regarded such misconduct in such a serious
light that it warranted
dismissal.
Regarding the level of detail in
which the requested documents were specified in the subpoenas, the
extent of the documentation
requested by the respondent in the
subpoenas issued in this instance hardly bears comparison with the
vague and wide-ranging
request for the production of documentation,
which the SCA deplored in Beinash's case.
3
Moreover, in the case of subpoenas
issued in the High Court, a witness who feels the subpoena is vague
can raise the matter
once he has been sworn in.
4
Section 142(8)(e)
clearly envisages
that a witness who shows good cause why they have not produced
documents requested cannot be held guilty
of contempt. It stands to
reason that if the details of documents requested are vague, a
subpoenaed witness may raise this
at the arbitration and does not
need to rush to court as a first resort.
In conclusion, I am satisfied that
there was nothing clearly vexatious about the respondent's
application for subpoenas to be
issued and it cannot be said simply
on the applicants perception of the merits of his case that the
evidence requested might
not be relevant, nor was it insufficiently
specified. In the circumstances I see no reason why the applicants,
whose success
rested not on challenging the substantive merits of
the subpoena, but on a fortuitous lapse in CCMA procedures should
be awarded
any costs in this matter.
Order
In the circumstances, the following
order is made:
The subpoenas issued by the CCMA to
the first to sixth applicants are set aside for want of compliance
with
section 142(2)
of the LRA.
The application to condone the
subpoenas non-compliance with
section 142(2)
of the LRA is
dismissed.
Each party is to pay its own costs.
_______________________
R LAGRANGE, J
JUDGE OF THE LABOUR COURT
Date of hearing: 24 and 25 August
2011
Date
of judgment: 26 August 2011
Attendance:
On
24 August 2011
For
the Applicants: T Bruinders, SC assisted by K Millard and N Mbelle
instructed by Cliff Dekker Attorneys
For
the Respondent: I E M Delport instructed by Caroline de Villiers
Attorneys
On
25 August 2011
For
the Applicants: A Patel of Cliff Dekker Attorneys
For
the Respondent: G Maritz instructed by Caroline de Villiers
Attorneys
1
at
734 H-J
2
See
section 138(1)
read with
section 1(d)
of the LRA
3
Described
at 728H-729E of the judgment.
4
Davis
v Additional Magistrate, Johannesburg
1989 (4) SA 299
(W)
at 305