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[2013] ZALCJHB 112
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Manyathela and Others v Commission for Conciliation Mediation and Arbitration and Others (J 168/13) [2013] ZALCJHB 112 (22 May 2013)
Not reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case
no: J168/13
In the matter between:
PATRICK MANYATHELA AND
OTHERS
Applicants
and
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
JOHN SHARDLOW (
N.O.
)
Second
Respondent
GAYATRI PARE MILLS
Third
Respondent
Heard: 21 May 20132
Delivered: 22 May 2013
Summary:
(Application to compel disclosure of wage information
– Exception)
JUDGMENT
LAGRANGE, J
Introduction
This matter concerns a second application by a group of employees of
the third respondent to compel it to provide "copies
of job
grades and collective agreement". The reason why the CCMA and a
Commissioner were apparently cited is because the
CCMA Commissioner
ruled that he had no jurisdiction to make such an award. The third
respondent excepted to the application after
serving the applicants
with a notice to amend their application failing which it would
launch the exception application. The
applicants had previously
launched a similar application in December last year, which it
appears they intended to withdraw but
mistakenly identified this
application as the one they intended to withdraw. For all practical
purposes, I will proceed on the
basis that the only application
still before the court is the one launched by the applicants on 28
March 2013.
The matter was set down for hearing of the application to compel.
The applicants’ counsel, Mr Mounogotla, at first sought
to
persuade me that since the application had been unopposed but now
appeared to be opposed, the matter should be removed to
the opposed
roll.
It is true that the third respondent had not filed a notice of
opposition or an answering affidavit by the time the matter was
heard, but it had filed a notice of exception and had made it
unmistakably clear that it reserved its right to file its answering
papers once the exception had been determined. In the circumstances,
it can hardly be said that the application to compel was
uncontested. In any event, it was impossible to deal with the
application to compel without dealing with the objection raised
to
the application in the form of the notice of exception.
Accordingly, the exception, which the applicants had opposed was
also addressed when this matter was heard. The fundamental
difficulty raised by the notice of exception is that the facts and
the legal basis for the applicants’ entitlement to receive
the
information they seek were not pleaded in the founding affidavit.
Applicant’s counsel ventured to suggest that the
claim was
based on a constitutional right to information, but conceded that
such a right should not be directly enforced before
other remedies
had been attempted. In any event, the application to compel does not
even disclose a constitutional right as the
legal basis for the
applicants’ claim.
It emerged in argument, though this was not set out in the
applicants’ founding affidavit, that the most likely reason
for the request was that the applicants believed they were being
underpaid in terms of the bargaining council agreement covering
their terms and conditions of employment. If that is indeed the
case, the applicants would seem to have a more direct remedy
for
addressing their complaint, which has not been utilised. Be that as
it may, the application to compel production of the information,
which is vaguely described, does not set out the legal basis for the
right the applicants seek to assert.
The applicants were given an opportunity to amend their statement of
claim before the exception was filed and were represented
throughout
in this matter by an attorney, who should have paid more heed to the
notice of the intention to except.
In the circumstances, the exception must succeed. I am reluctant to
impose costs on the applicants on this occasion, though in
an
ordinary court they would probably be compelled to pay the
respondent’s costs. However, should they persist with this
matter and fail to set out a recognised basis in law for their
alleged right to the information, they will have less reason to
expect lenience in regard to a future cost award in the matter.
There are other less serious deficiencies in the statement of claim
which are addressed in the order below.
Order
The third respondent’s exception is upheld to the extent that
the applicants’ statement of claim does not comply
with the
requirements of sub rules 6(b)(i),(ii),(iii) and subrule 6(e).
Should the applicants wish to pursue the application, they must file
a notice of their intention to amend their statement of
case by 31
May 2013.
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: Mr Mounogkgotla instructed by Mchunu Attorneys
THIRD RESPONDENT: Ms L Erasmus instructed by De Beer Minnaar