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[2015] ZALCJHB 210
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Eksteen v Marketech Holdings (Pty) Limited and Others (JR2647/13) [2015] ZALCJHB 210 (15 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR2647/13
GAJB8509-13
Not
Reportable
In the
matter between:
ANDY
EKSTEEN
Applicant
and
MARKETECH
HOLDINGS (PTY) LIMITED
First
Respondent
MARKETECH
ENTERPRISES (PTY) LIMITED
Second
Respondent
COMMISSIONER
RICHARD BYRNE N.O
Third Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION HELD
AT JOHANNESBURG
Fourth Respondent
Heard:
8 July 2015
Delivered:
15 July 2015
Summary:
Unopposed section 158(1)(g) application to review a
ruling by a Commissioner who wrongly refused a postponement
application in a part-heard matter
JUDGMENT
LEPPAN,
AJ
Introduction
[1]
This
matter is an unopposed review in terms of section 158(1)(g) of the
Labour relations Act 66 of 1995 ("the LRA"), wherein
a
Ruling handed down by the Third Respondent is sought to be set aside.
[2]
The
Applicant and the First and Second Respondents agreed that the review
application will not be opposed by the First and Second
Respondents
and that no relief (including legal costs) will be claimed against
them. This is evidenced by the email annexed to
the Applicant's
Founding Affidavit from the First and Second Respondent's attorneys,
annexure "A" thereto which reads:
"
Dear Sir
We
have taken instructions from our client. Our client will not oppose
the review application on condition that no costs order is
sought
against our client
."
[1]
[3]
Further,
no notice of intention to oppose was entered by the Third and Fourth
Respondents (being the CCMA and CCMA Commissioner
Richard Byrne).
[4]
The
First and Second Respondents launched an urgent application out of
the Labour Court seeking to stay the arbitration proceedings
at the
CCMA. The matter was set down for argument on 17 October 2013 and the
parties were awaiting the outcome before taking any
further decisions
on the way forward, i.e. the proceedings before the CCMA.
[5]
Judgment
in the Labour Court in the urgent application was handed down in
favour of the
Applicant in these proceedings. The order was handed down
dismissing the urgent application launched by the
First and Second
Respondents on 18 October 2013. It serves to mention that the
arbitration first commenced on 13 August 2013
before the Third
Respondent and was a part-heard matter that was scheduled to continue
on 25 October 2013. Following upon
the outcome of the urgent
application, the Applicant understood that this placed the First and
Second Respondents in a predicament
as their Counsel was involved in
a High Court trial on that date. Furthermore, the Applicant was
in Mozambique on 25 October
2013 and could not return in time for the
arbitration hearing without incurring substantial expense in that
regard. Thereafter
it was agreed between the parties that
their respective attorneys would attend at the arbitration hearing to
formally seek a postponement.
[6]
The
postponement was denied by the Third Respondent and the parties were
ordered to appear within one hour, which was not possible,
and the
matter was dismissed.
[7]
The
Third Respondent's reasons for denying the postponement were that:
7.1 the
First and Second Respondents were aware of the unavailability of
their counsel for a period of one month
before the scheduled
arbitration date, and did not adhere to the rules of the CCMA in
applying for a postponement (i.e. not later
than 7 days before the
hearing); and
7.2 the
fact that an application to stay the proceedings was before the
Labour Court did not prevent the First
and Second Respondents from
making an application to the CCMA for postponement.
The Applicant's Arguments
before this Court
[8]
It
was argued that the requirements for a postponement had been met and
reference was made to the case of
Insurance
& Baking Staff Association & others v SA Mutual Life
Assurance Society
2000 (2) ILJ 386 (LC) which set out the requirements for postponement
as follows:
8.1 The
trial judge has a discretion whether an application for postponement
should be granted or refused.
8.2
That the discretion must at all times be exercised judiciously and
not capriciously or upon any wrong principles,
but for substantial
reasons.
8.3 The
trial judge must reach a decision after properly directing his
attention to all relevant facts and principles.
8.4 An
application must be made timeously, as soon as the circumstances
which might justify an application become
known to the applicant.
However, in cases where fundamental fairness and justice warrant a
postponement, the court may in an appropriate
matter, allow a
postponement even though an application was not timeously made.
8.5 An
application for postponement must always be bona fide and not used as
a tactical manoeuvre for the purpose
of gaining some tactical or
other advantage to which the applicant is not legitimately entitled.
8.6
Whether any prejudice caused by the postponement could fairly be
compensated by an appropriate cost order
or any other ancillary
mechanism.
8.7 The
court should weigh the prejudice which will be caused to the
respondent if the postponement is granted
against the prejudice which
will be caused to the applicant if the postponement is refused.
8.8
Where the applicant for postponement has not made the application
timeously, or is otherwise to blame with
respect to the procedure
which the applicant has followed, but justice nevertheless justifies
a postponement in the particular
circumstances of a case, the court
in its discretion might allow the postponement but direct the
applicant to pay the wasted costs.
[9]
The
Applicant argued that: "
Even
though they [the Parties] had not complied with the rules and brought
the application for postponement timeously they had an
adequate
explanation for why the application has not been brought by agreement
prior to the 7 days as set forth in the rules
."
[2]
[10]
The
Applicant further referred to the case of
Fundi
Projects & Distributors (Pty) Ltd v CCMA & another
2006 (27) ILJ 1136 (LC) where the following passage is quoted
[3]
:
"
Too often, as in
the present instance, application for postponement are routinely,
arbitrarily and misguidedly refused, frequently
because there is no
application of a principled approach to the competing interest of the
parties
."
[11]
It
is argued that there is no competing interest in the present matter.
[12]
This
Court was further referred to the
Fundi
Projects
decision in quoting the following passage
[4]
:
"
Having elected
to consider the application, to use the language of Rule 21, 'in a
manner that she deems fit', the commissioner was
bound to apply the
relevant legal principles referred to above. There is no evidence
that the commissioner properly exercised her
discretion, and in
particular that she properly weighed the prejudice that might have
been caused to the applicant and the 3rd
respondent respectively had
she granted the postponement
".
[13]
It
was argued that the Third Respondent did not deal with the fact that
the parties had agreed to the postponement. The Third Respondent
did
not even consider the prejudice to both the parties more especially
where the arbitration was a part-heard matter.
[14]
It
was further argued that the
Fundi
Projects
decision held that where there is evidence that the request for
postponement was a tactical manoeuver or made for some ulterior
motive a commissioner would be required to consider this. No
such ulterior motive is apparent in this matter.
[15]
The
absence of the First and Second Respondents' counsel was "
neither
wilful nor mala fide
[5]
"
and that the First and Second Respondents had briefed counsel from
the outset of the matter and she was not available, and
given the
intricacies of the matter it would have been unfair to have expected
them to brief new counsel at such a late stage more
especially where
it was a part-heard matter.
[16]
The
crux of the Applicant's argument is that the Third Respondent did not
consider the agreement between the parties and that that
he made a
finding without considering the prejudice that would be suffered by
both parties, and in particular the Applicant where
his claim of
unfair dismissal was also dismissed. Therefore, regard should have
been had to a consideration of the principles of
fairness and justice
and the lateness of the postponement application should have been
condoned.
Analysis
[17]
There
appears to be no decisions annotated with regard to the
Fundi
Projects
judgment, however that decision was referred to in the case of
Baur
Research CC v Commission for Conciliation, Mediation &
Arbitration & others
(2014) 35 ILJ 1528 (LC) where the Labour Court, in dealing with
applications for postponement due to a lack of legal representation,
noted the following and quoted from the decision of
Northern
Province Development Corporation v Commission for Conciliation,
Mediation & Arbitration & others
(2001) 22 ILJ 2697 (LC):
''
[20]
In the result, it is my conclusion that the second respondent erred
in an unjustifiable manner in refusing a postponement on
7 February
2001, for the purpose of arranging properly prepared legal
representation. In coming to that conclusion,
I
do not lose sight of the fact that the granting or withholding of a
postponement involves a considerable degree of discretion
and that
this court should interfere with the exercise of such discretion only
in very limited circumstances
.
[21]
It is my conclusion that the award made by the second respondent in
the absence of the applicant should be set aside also on
the ground
of his refusal of the application for postponement, to the extent
that this was for the obtaining of properly prepared
legal
representation
."
(emphasis added).
[18]
The
Applicant relies on the ground of review that the failure to grant
the postponement was grossly unreasonable and therefore the
Ruling
award should be reviewed and set aside.
[19]
Commissioners
sitting as Arbitrators are required to apply their minds to the
matter before them and consider the prejudice that
would be suffered
by either or both the parties in the event that the postponement is
not permitted. I am satisfied that the Third
Respondent erred in that
regard.
Order
1.
The
Ruling handed down by the Third Respondent on 25 October 2015 under
case reference GAJB 8509-15 is reviewed and set aside.
2.
The
Fourth Respondent is ordered to set the Applicant's unfair dismissal
dispute down for arbitration before the Third Respondent
on 21 days'
notice to the parties as contemplated in terms of its Rules of
Practice and Procedure in Arbitration Proceedings.
3.
There
is no Order as to costs.
______________________________
Leppan, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ramsay
Webber Inc
For the Respondent: Adv.
Geraldine Kinghan
[1]
Rule
23 (2) is repeated in the revised rules of the CCMA.
[2]
The
Applicant's Heads of Argument at para 11.1.
[3]
The
Applicant's Heads of Argument at para 15.
[4]
The
Applicant's Heads of Argument at para 17.
[5]
The
Applicant's Heads of Argument at para 22.