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[2017] ZALCJHB 88
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Free State Gambling and Liquor Authority v Motane NO and Others (JR1130/16; J23/15) [2017] ZALCJHB 88 (10 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1130/16 & J23/15
In the
matter between:
FREE
STATE GAMBLING & LIQUOR
AUTHORITY
Applicant
and
PEHELO
MOTANE N.O.
First Respondent
MARINA
TERBLANCHE N.O.
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Third Respondent
NEHAWU
obo DINEO PATRICIA RANI
Fourth Respondent
Heard:
31 August 2016
Delivered:
10 March 2017
JUDGMENT
TLHOTLHALEMAJE
J
Introduction
[1]
The applicant seeks an order reviewing and
setting aside three interlinked rulings issued by the first and
second respondents (Commissioners)
under the auspices of the third
respondent (CCMA).
[2]
The first was a postponement ruling, in
terms of which the applicant’s request for a postponement at
arbitration proceedings
held on 2 October 2014 was declined by
the first respondent (Commissioner Motake). The applicant further
seeks to have the
default award issued by Commissioner Motake on
6 October 2014 reviewed and set aside. In terms of the
default award issued
after a request for a postponement was declined,
the fourth respondent (Ms Patricia Rani) was reinstated with
retrospective
effect, and awarded back-pay in the amount of R111
003.30.
[3]
The third is a rescission ruling issued by
the second respondent (Commissioner Terblanche) dated 20 November
2014, in terms of which
the applicant’s application for a
rescission of the default award issued on 6 October 2014 was not
determined on account
of lack of jurisdiction.
[4]
The two rulings and the default award being
interlinked, a determination on the main issue of whether a
postponement ruling was
reviewable or not would be dispositive of the
other applications. The late filing of the review application was
condoned by Van
Niekerk J on 7 June 2016, who had also ordered that
the review application be heard on the same date together with the
section 158(1)(c)
application which was launched under case
number JS23/15.
Background
[5]
The facts of this matter are largely common
cause. Ms Rani was employed by the applicant as a Stakeholder Liaison
Officer. She commenced
her employment with the applicant on 1
November 2007. She was dismissed on 6 June 2014, following
upon an internal disciplinary
hearing held on 31 May 2014
pertaining to six counts of alleged misconduct. She was ultimately
found guilty of four of
those, viz:
(1)
“
that
you leaked confidential information of the Employer to a suspended
Employee Relebogile Malefane, which disciplinary hearing
was pending
and you further colluded with the said Employee to defeat the ends of
justice by fabricating evidence regarding her
disciplinary hearing in
order to defeat the ends of justice”;
(2)
“
Gross
dereliction of your duties and responsibility as a coordinator at the
sobriety week event in Ficksburg on 20 September 2013
in that you
failed and/ or neglected to safeguard and/or control the Employee’s
property in other words cool drinks that
were removed by one Employee
Relebogile Malefane who is working for another division”;
(3)
…
(4)
“
Gross
negligence in that you failed to act in the best interest of the
Employer by exposing property belong to the Employer to risk
by
leaving your bag containing R17 000.00 to R18 000.00
belonging to the Employer to an unauthorised Employee with Relebogile
Malefane to be in possession thereof during the weekend of 13-15
September 2013”
(5)
…
(6)
“
Gross
negligence that you left soft drinks, about 24 cans, left overs of
the sobriety event week event at Ficksburg held 13 September
2013 in
possession of an unauthorised Employee Relebogile Malefane during the
weekend of 13 September 2013 thereby failing to act
in the best
interest of the Employer”.
[6]
With the assistance of NEHAWU, Ms Rani had
upon her dismissal, referred an unfair dismissal to the CCMA. After
conciliation failed,
the dispute was referred for arbitration, and
was first enrolled before Commissioner Motake for arbitration on 21
August 2014.
Proceedings were postponed at the request of the
applicant, on the basis that its main witness was not available.
[7]
The matter was re-scheduled to take place
on 2 October 2014 at 09h00. Mr Motaung, the applicant’s
Legal Manager and representative
at the proceedings again sought a
postponement on the basis that the same sole witness, Ms Mathilda
Gasela (Ms Gasela), was not
available as she had to consult a medical
doctor. At the time, Mr Motaung was not in possession of a copy of a
medical certificate
to confirm that indeed Ms Gasela was ill.
[8]
Commissioner Motake stood the matter down
until 14h00 to enable Mr Motaung to either ascertain whether Ms
Gasela could be available,
and if not, whether she would be in a
position to make a medical certificate available for the benefit of
the arbitration proceedings.
On resumption, Mr Motaung indicated that
he could not get hold of Ms Gasela despite two telephonic attempts,
and could therefore
not make available a copy of the medical
certificate.
[9]
Ms Rani as represented by Mr Mofokeng of
NEHAWU had opposed the request for a postponement on the basis that
it would be unreasonable
to grant another postponement in view of the
previous one granted, and further since there was no reasonable
explanation for Ms
Gasela not attending the proceedings. Commissioner
Motake had considered the request and declined it as there were no
acceptable
grounds upon which postponement could be granted.
[10]
In his founding affidavit to the review
application, Mr Motaung contended that that the refusal to grant the
application for postponement
under the circumstance mentioned above
infringed upon the applicant’s rights in terms of the law of
natural justice. He contended
that the refusal to grant a
postponement was irrational and unreasonable, and that Commissioner
Motake committed gross misconduct
in relation to his duties as:
a)
The arbitration proceedings were set-down
for a hearing at 09h00, but had only commenced at 14h00. The matter
would not have been
finalised on the day in question and would have
been postponed in any event;
b)
The refusal to grant the postponement
curtailed the arbitration proceedings and ‘robbed’ the
applicant of an opportunity
to present its case;
c)
Commissioner Motake failed to consider the
effect of an adverse cost order against the applicant for the
granting of condonation,
and should have considered granting costs
against the applicant having postponed the matter.
d)
Commissioner Motake’s findings were
based on speculative arguments, and the sole witness could not be
reached as she was ill.
These were circumstances beyond Motaung’s
control which Commissioner Motake failed to take into account.
Evaluation
[11]
As it
was correctly pointed out on behalf of the applicant, if the refusal
of the postponement was reviewable, it followed that
the default
award could not stand. Similarly, if the ruling is found to be
unassailable, this should be the end of the applicant’s
case.
The starting point with postponements at the CCMA is its rule 23
[1]
,
which sets out the procedures parties are required to follow in order
to postpone arbitration proceedings. In accordance with
this rule,
proceedings may be postponed by agreement between the parties, and
there would be no need for them to appear if the
written agreement
for the postponement was received more than seven days before the
scheduled date. The CCMA is obliged to postpone
the proceedings under
sub-rule (2)(a). Where there is no agreement however, a party must
still make an application to be considered
under sub-rule (3).
[12]
The provisions of rule 23 do not exclude
the possibility of an application for a postponement being made at
the proceedings themselves,
as the provisions of rule 31(10) enjoins
a Commissioner to determine any application in a manner deemed fit.
Furthermore, in accordance
with the provisions of rule 31(8), the
requirements of rule 31, and by implication, of rule 23 may be
dispensed with, where an
application for a postponement was brought
on the scheduled date of an arbitration and where good cause exists
for treating the
matter as an urgent application.
[13]
Other
than the above provisions, Commissioners have a useful guide in the
form of the
CCMA
Practice and Procedure Manual
[2]
,
in terms of which
inter
alia
,
the Commissioner has a discretion to be exercised judicially, whether
an application for postponement should be granted or refused.
In
circumstances, as in this case, where an application was brought on
the date of the arbitration proceedings, such an application
should
only be considered if it is shown that good cause exists for treating
the application as urgent. Factors to be considered
in this regard
include the explanation for not seeking consent from the other party
timeously; whether the other party was given
sufficient notice of the
intended application; the prejudice to the other party; whether the
application is
bona
fide
and not merely used as a delaying tactic; or whether if the request
is granted, a cost order can fairly compensate the prejudice
or
potential prejudice to the other party.
[14]
Other
factors to be considered include whether the explanation given for
the request was full and satisfactory; whether the application
is
opposed; the history of previous postponements; the importance of the
case; the prospects of success of the party applying for
a
postponement; the costs to the CCMA; public interest and the quest
for expeditious resolution of disputes. Ultimately, the
Commissioner’s
discretion must be exercised judicially and for
substantial reasons and not capriciously or on any wrong
principle
[3]
.
[15]
In
Carephone
(Pty) Ltd v Marcus NO and Others
[4]
,
Froneman DJP (as he then was) reiterated that an application for
postponement was not a matter of right. It is an indulgence granted
by the court to a litigant in the exercise of a judicial
discretion
[5]
.
With regards to proceedings before the CCMA, Froneman DJP further
held that:
“
There
are at least three reasons why the approach to applications for
postponements in arbitration proceedings under the auspices
of the
commission under the LRA is not necessarily on a par with that in
courts of law. The first is that arbitration proceedings
must be
structured to deal with a dispute fairly and quickly (s 138(1)).
Secondly, it must be done with 'the minimum of legal formalities'
(s
138(1)). And thirdly, the possibility of making costs orders to
counter prejudice in good faith postponement applications is
severely
restricted. . . ”
[6]
[16]
Emanating from the above and other
jurisprudence, it is apparent that:
a)
postponements
at arbitration hearings are not to be readily granted
[7]
.
b)
postponements
in arbitrations should be granted on “less generous basis.”
This approach is informed by the recognition
that the LRA requires
that labour disputes need to be resolved expeditiously and thus
arbitrators have a wide discretion in granting
or refusing to grant a
postponement;
[8]
c)
where fundamental fairness and justice
justifies a postponement, the arbitrator may in appropriate cases,
allow such an application
even if it was not timeously made;
d)
the Labour Court sitting in review will
adopt a stringent and restricted approach to interfering with the
refusal to grant postponements
by arbitrators;
e)
it is only when a compelling case has been
made for interfering with the exercise of the discretion of the
arbitrator, will the
court interfere with the refusal to grant a
postponement. This can be in instances where the arbitrator was
influenced by wrong
principles or misdirection on the facts, or where
the decision reached could not reasonably have been made by an
arbitrator properly
directing him/herself to all the relevant facts
and principles.
[17]
T
he reasonable
decision maker test which is applied in determining whether an
arbitration award is susceptible to a review involves
a consideration
of not only the reasons given by the Commissioner but also all the
material that properly served before him or
her. Equally so a refusal
to grant a postponement involves a consideration of whether a
Commissioner acted reasonably, with regard
to the principles and
jurisprudence alluded to elsewhere in this judgment.
[18]
The reasonableness of the decision to
refuse a postponement must be judged on the basis of the information
which was placed before
the Commissioner Motake at the time that a
postponement was sought. Based on the record of proceedings and the
award itself, there
is no basis upon which it can be concluded that
Commissioner had arrived at a decision which no other reasonable
commissioner would
have arrived at in the light of what was before
him at the time, which was that:
a)
the main reason for seeking a postponement
was that Ms Gasela, the applicant’s sole witness was not
available as she
was allegedly ill;
b)
the
matter was initially postponed on 21 August 2014 on the basis that Ms
Gasela was not available as she was attending a meeting
in Cape Town.
On securing a postponement on that date, Mr Motaung on behalf of the
applicant undertook that Gasela would commit
herself to the next
set-down date
[9]
.
Prima
facie
,
this undertaking appears to have been made in vain.
c)
when
the arbitration proceedings reconvened on 2 October 2014, Mr Motaung
again sought a postponement on behalf of the applicant,
on the
grounds that the same witness, Ms Gasela was indisposed. Mr Motaung
was afforded until 14h00
[10]
to contact Ms Gasela with a view of obtaining a copy of a medical
certificate from her to prove her illness;
d)
upon resumption at 14h07, Mr Motaung
reported back that Ms Gasela could not be located despite two
attempts. Commissioner Motake
issued a ruling, stating that the
matter stood was down for one and a half hour for Mr Motaung to
secure the required copy of the
medical certificate; that the matter
was previously postponed as the same witness was not available. He
took into account that
disputes had to be resolved speedily, and that
the applicant had been afforded an indulgence. His conclusions were
that a postponement
should be refused in the absence of any proof
that Ms Gasale was incapacitated;
e)
immediately upon the issuing of the ruling,
Mr Motaung informed the Commissioner that his instructions were to
take the decision
on review, and requested further reasons for that
ruling.
[19]
The applicant attacked the ruling on the
basis that it was issued in circumstances where Commissioner had
accepted that he would
be denying it an opportunity to be heard. This
cannot by all accounts be a sustainable basis for reviewing the
ruling. An acknowledgment
by a commissioner that proceeding with a
matter in circumstances where a postponement was declined would
result in the other party
not being heard was merely a statement of
fact in the light of the request for a postponement. Furthermore,
informing a party of
its rights to rescind a ruling if so desired can
only be unsolicited legal advice to the other party (which might be
wrong advice
in any event), and can hardly be misconstrued as an
irregularity on the part of a Commissioner.
[20]
Central to the reasoning of the
Commissioner was that as required of him, he had considered the fact
that the matter was previously
postponed because the same witness was
not available, and further that arbitration proceedings had to be
speedily finalised as
that is what the LRA required. He had granted
Mr Motaung more than an indulgence to find out where this
witness was. If indeed
the application was
bona
fide
, and the witness knew of the
proceedings and was committed to the set-down date as undertaken on
21 August 2014, there was nothing
placed before the Commissioner at
the time as shall further be shown, to indicate that the witness had
made any attempt to timeously
inform Mr Motaung earlier on the
day about her alleged ailment or her whereabouts.
[21]
More
concerning with Mr Motaung’s approach to this matter are his
averments in the application for rescission before the CCMA,
which
had raised some pertinent information, was not placed before
Commissioner Motake at the time that a postponement. This included
that Ms Gasela had allegedly assured him on 1 October 2014 that she
would attend the proceedings the following day. Incredibly,
this
assurance came about notwithstanding the fact that Ms Gasela was
allegedly still to undergo a stomach operation on the same
date.
[11]
The contention that Ms Gasale made these assurances whilst knowing
that she was supposed to undergo a stomach operation on the
day
before the proceedings is disingenuous in the extreme. If indeed Ms
Gasale knew that she would be undergoing an operation on
1 October
2014, it is improbable that she would not have informed Mr Motaung of
that fact, let alone make any undertaking to attend
an arbitration
hearing.
[22]
The
bona fides
of the application ought further to be looked at within the context
of a copy of the medical certificate that was subsequently
submitted
for the purposes of the rescission application. The copy, for what it
is worth, was issued by a medical practitioner
at Medicross, Edenvale
Medical Centre (Gauteng). It is dated 3 October 2014, and records
that Ms Gasela was examined on 1 October 2014.
She was
declared unfit for duty between 1 and 7 October 2014. A concern
raised in the rescission ruling by Commissioner Terblanche,
which
concern I share is that the certificate was issued a day after the
arbitration proceedings had taken place and did not specify
anything
about Ms Gasela having undergone an operation on 1 October 2014.
To the extent that Mr Motaung alleged that he had
seen Ms Gasela in
the morning of 1 October 2014 at the workplace in Bloemfontein,
it is not clear as to when she could have
left the workplace and
travelled all the way to Edenvale for the operation on the same date.
In any event, any expectation that
she would have attended the
arbitration proceedings in Bloemfontein a day after her alleged
stomach operation in Edenvale, is far-fetched
and disingenuous. The
invariable conclusion to be reached in this regard is that the more
Mr Motaung sought to disentangle himself
out of his own self-made
quagmire, the deeper he sank in it. He clearly had no substantive
reasons to seek a postponement.
[23]
It is further apparent that Mr Motaung had
merely presented himself at the arbitration proceedings with an
expectation that a postponement
would be readily granted, without
making any effort to place substantive reasons as to the absence of
Ms Gasela. It was not sufficient
for Motaung, after being granted an
indulgence to find out where this witness was, to simply report back
that she could not be
found after two mere telephonic attempts. The
Commissioner and Ms Rani were entitled to a full and
satisfactory explanation
(if any existed) which was not forthcoming.
Furthermore, there is no merit in the contention that the
Commissioner ought to have
postponed the proceedings in any event
simply because they had started late. The proceedings started late as
amongst other things,
Mr Motaung was granted just under two hours to
locate Ms Gasela, when he knew that this was a pointless exercise.
[24]
Other than the above difficulties, Mr
Motaung further averred in his founding affidavit in support of the
rescission application
that on 2 October 2014 at about 08h00, he had
received a telephone call from Ms Gasela who informed him that she
could not travel
to Bloemfontein as there were problems regarding her
operation. She
inter alia
undertook to furnish Mr Motaung with a copy of the medical
certificate.
[25]
I have again trawled through the record of
arbitration proceedings (despite it not being the function of this
Court to do so) to
find any evidence that suggests that Motaung’s
above averments in the rescission application were brought to the
attention
of Commissioner Motake, and could find no such evidence. He
never brought it to the attention of the Commissioner that he got a
call from Ms Gasale earlier in the morning, and that he was
informed that she had problems with her operation. This was crucial
information that could have persuaded the Commissioner. However, if
indeed Ms Gasale had indeed called Mr Motaung in the morning
of
2 October 2014 to inform him that she was incapacitated, why did he
have to travel all the way back to the workplace after the
Commissioner had granted him an indulgence, to establish her
whereabouts, instead of simply disclosing to the Commissioner that
Ms Gasela had an operation and complications thereafter?
[26]
Even
after Mr Motaung was granted an indulge, he informed the Commissioner
that he went to the applicant’s offices and tried
to call Ms
Gasela but could not get hold of her. Most striking with averments
made by Mr Motaung in the rescission application
is that in none of
the applications, viz, the rescission before the CCMA or in respect
of this application, was an attempt made
to secure Ms Gasela’s
confirmatory/supporting affidavit. Such an affidavit was crucial in
the light of the little weight
that was to be attached to the copy of
the medical certificate where it was not accompanied by a substantial
affidavit by the medical
practitioner to explain the nature of the
ailment. It is trite that a mere copy of a certificate is not on its
own sufficient,
as it constitutes hearsay evidence
[12]
.
Further in the light of the hearsay nature of the averments
pertaining to alleged conversations with Ms Gasela a day before
the hearing and on the morning of the hearing, the failure to file a
confirmatory affidavit in this regard was fatal to the applicant’s
case.
[27]
Mr Motaung had two opportunities to
disclose to the Commissioner that Ms Gasela had informed him in
the morning of 2 October
2014 that she had medical problems. He
failed to do so at the appropriate time, and instead chose to take
Commissioner Motake,
Ms Rani and her representative on a joy ride to
nowhere. He not only wasted the precious time of the Commissioner,
the CCMA and
the other party, but also attempted to wood-wink them
into believing that Ms Gasela would be available, when it was
apparent
that she was not going to be available for the proceedings.
He failed to take the Commission into his confidence, and by
implication,
this Court. The Court takes serious umbrage when
litigants deliberately seek to mislead it, or any other dispute
resolution forum.
On the facts, therefore, I am satisfied that with
his application for a postponement, Mr Motaung was buying time to
avoid the inevitable.
He had in the process, attempted to abuse the
CCMA proceedings, and Commissioner Motake was correct in taking a
firm stand against
such abuse and disrespect of proceedings.
[28]
The
fact that immediately upon the issuing of the ruling, Mr Motaung had
informed the Commissioner that his instructions were to
take the
decision on review, and requested further reasons for that ruling, is
further indicative of his attitude towards arbitration
proceedings.
It appears not to be uncommon upon a reading of various records of
arbitration proceedings before this Court, to come
across instances
where Commissioners are always informed (almost in a threatening
manner) of parties’ rights and intentions
to launched review
proceedings. This happens in some instances, even before proceedings
had commenced let alone finalised. I am
uncertain as to whether the
purpose of this approach is to intimidate Commissioners into making
certain decisions or not. Be that
as it may, it is uncalled for, as
parties are entitled to exercise their rights under the LRA without
Commissioners being constantly
reminded of that fact. The sentiments
expressed by
Carephone
[13]
in respect of this Court’s role towards the Commission and
other statutory dispute resolution bodies are worth repeating,
as
they are equally apposite in this case. Mlambo J (as he then
was) stated that:
“
The
role of this court towards the commission is a crucial one. While it
has review powers over any function performed by the commission,
as a
matter of policy, it should also protect the commission from
practices that could gain it disrespect. This court will not
countenance conduct that is designed to interfere with the work of
the commission or even hinder it in its functions. The commission
is
an institution that was created with the specific objective of not
repeating the mistakes of the past. The commission plays
a crucial
role in the dispute resolution dispensation under the Act. For this
dispensation to be effective the commission must
not be hindered in
its work.
And,
“
The
commission goes through elaborate preparation in enrolling
arbitrations and appointing commissioners to arbitrate disputes.
It
is a statement of the obvious that the date allocation by the
commission should be respected and complied with. It is only in
those
exceptional circumstances when unforeseen circumstances beyond a
party’s control prevent it from attending an arbitration
that
an indulgence may be considered. The application must however be made
timeously. The commission is not obliged to succumb
to unnecessary
postponement requests which result in serious disruptions to its
work. It is high time that parties recognise the
important role
performed by the commission and give it the respect it deserves. This
court will ensure this”.
And
“
It
is clear that the applicant in this matter took it for granted that
it was entitled to legal representation and could also obtain
a
postponement of the proceedings as it wished. These are issues on
which the commission must exercise a discretion and a party
who takes
this for granted does so at its own peril.”
[29]
To summarise then, the Commissioner’s
decision to refuse a postponement is unassailable. The application
before him was not
bona fide
and was merely used as a delaying tactic by Mr Motaung, who had
failed to take the Commissioner into his confidence, and had
approached
the Commission ill-prepared, and with a false sense of
entitlement to a further postponement. He had not proffered a full
and satisfactory
as to the reason a postponement was necessary. Ms
Rani had been prejudiced as a result of the previous postponement and
she stood
to be further prejudiced if the proceedings were to be
postponed yet again. I am satisfied that the Commissioner in arriving
at
his decision had elicited evidence from Mr Motaung as to why he
should be granted an indulgence, and none was forthcoming. The
Commissioner had analysed whatever evidence was placed before him by
both parties, correctly applied the legal principles and came
to a
reasoned conclusion. In the circumstances, the public interest and
the quest for expeditious resolution of disputes as mandated
by the
LRA persuaded the Commissioner to come that decision. There is
therefore no basis for any conclusion to be reached that
the
Commissioner exercised his discretion capriciously or on any wrong
principle or consideration. Accordingly, the court finds
no reason to
interfere with his ruling.
The
rescission ruling
[30]
In
view of the conclusions reached above, it would not be necessary to
deal with the issue of the rescission ruling. The applicant
in its
heads of argument conceded that bringing an application for
rescission in respect of Commissioner Motake’s ruling
was not
proper. The fact that Commissioner Motake had suggested and endorsed
that route cannot not imply that the applicant ought
to have followed
it. The fact of the matter is that this was not any ordinary matter
where a default was granted in circumstances
where the applicant had
failed to make an appearance at all. The applicant was represented at
the arbitration proceedings and upon
the postponement having been
declined, had not participated further in the proceedings.
Commissioner Terblanche had declined to
determine the rescission
application on account of lack of jurisdiction. This approach was
correct in that rulings and awards can
only be rescinded within the
confines of the provisions of section 144 of the LRA.
[14]
Given the circumstances under which the default award was issued,
none of the grounds listed under these provisions would have
been
applicable. This approach cannot be faulted in that a decision by
this Court that the postponement ruling was reviewable would
invariably have implied that the default award ought to be set aside.
To the extent that the review in that regard failed, the
default
award therefore stands.
[31]
It was further common cause that the notice
of motion in respect of the section 158(1)(c) of the LRA was
filed on 23 January
2015. That application in accordance with the
order of Van Niekerk J was to be considered together with the review
application.
Having considered the application, I can find no factors
that militate against making the award issued on 6 October 2014
an order of court, particularly in the light of the review
application being unsuccessful. In regards to costs, the fourth
respondent
was represented by a Union official and is accordingly not
entitled to any legal costs.
Order
[32]
In the circumstances, the following order
is deemed appropriate:
1.
The application to review and set aside the
postponement ruling issued by the first respondent on 02 October 2014
under case number
FSBF3091-14 is dismissed.
2.
The application to review and set aside the
rescission ruling issued by the second respondent on 20 November 2014
under case number
FSBF3091-14 is dismissed.
3.
The award issued by the first respondent
under case number FSBF3091-14 dated 06 October 2014 is herein made an
order of court in
terms of the provisions of Section 158 (1) (c) of
the Labour Relations Act.
4.
There is no order as to costs.
__________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
For the
Applicant:
Adv. T Govender
Instructed
by:
Sunil Narian Incorporated Attorneys
For the
Fourth Respondent:
Mr. Malase Phoko of NEHAWU
[1]
Rule 23
provides that—
“
(1)
An arbitration may be postponed—
(a)
by agreement between the parties in terms
of subrule (2); or
(b)
by application and on notice to the other parties in terms of
subrule (3).
(2)
The Commission must postpone an arbitration without the parties
appearing if—
(a)
all the parties to the dispute agree in
writing to the postponement; and
(b)
the written agreement for the postponement is received by the
Commission more than
seven days prior to the scheduled date of the
arbitration.
(3)
If the conditions of subrule (2) are not met, any party may apply in
terms of rule
31 to postpone an arbitration by delivering an
application to the other parties to the dispute and filing a copy
with the Commission
before the scheduled date of the arbitration.
(4)
After considering the written application, the Commission may—
(a)
without convening a hearing, postpone the
matter; or
(b)
convene a hearing to determine whether to
postpone the matter.
[2]
Chapter 15.
[3]
See
(
R v Zackey
1945
AD 505
;
Madnitsky
v Rosenberg
1949
(2) SA 392
(A)
at 398-9,
Joshua
v Joshua
1961
(1) SA 455
(SW)
or 457 (A).
[4]
1999 (3) SA
304
(LAC) at para 54.
[5]
See also
Lekolwane
& another v Minister of Justice and Constitutional Development
[2006] ZACC 19
;
2007 (3) BCLR 280
(CC) where it was held that:
“
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement
seeks
an indulgence from the court. A postponement will not be granted,
unless this court is satisfied that it is in the interests
of
justice to do so. In this respect the application must ordinarily
show that there is good cause for the postponement, whether
a
postponement will be granted is therefore in the discretion of the
court. In exercising that discretion, this Court takes into
account
a number of factors, including (but not limited to) whether the
application has been timeously made, whether the explanation
given
by the applicant for postponement is full and satisfactory, whether
there is prejudice to any of the parties, whether the
application is
opposed and the broader public interest.”
[6]
Carephone
above
n 4 at para 55.
[7]
See
National
Police Service Union & others v Minister of Safety and Security
& others
2000
(4) SA 1110
(CC) at 1112F, where it was held that:
“
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as of right. An applicant for a postponement
seeks
an indulgence from the Court. Such postponement will not be granted
unless this Court is satisfied that it is in the interests
of
justice to do so. In this respect the applicant must show that there
is good cause for the postponement. In order to satisfy
the Court
that good cause does exist, it will be necessary to furnish a full
and satisfactory explanation of the circumstances
that give rise to
the application. Whether a postponement will be granted is therefore
in the discretion of the Court and cannot
be secured by mere
agreement between the parties. In exercising that discretion this
Court will take into account a number of
factors, including (but not
limited to): whether the application has been timeously made,
whether the explanation given by the
applicant for postponement is
full and satisfactory, whether there is prejudice”
[8]
Real
Estate Services (Pty) Ltd v Smith
1999) 20 ILJ 196 (LC) at para 12. See also See
Northern
Province Development Corporation v CCMA and Others
(2001) 22 ILJ 2697 (LC) at para 20 and
Fraser
International Removals v CCMA and Others
1999 (7) BLLR 689 (LC).
[9]
Line 17 page 245 of the Record of Arbitration Proceedings
[10]
Line 9 page
279 of the Record
[11]
Page 156 of
the Record.
[12]
Mgobhozi
v Naidoo NO & Others
[2006] 3 BLLR 242 (LAC).
[13]
Carephone
above n 4 at paras 19–21.
[14]
Section 144
is entitled “
Variation
and rescission of arbitration awards and rulings”
and
provides:
“
Any
commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose,
may
on that commissioner’s own accord or, on the application of
any affected party, vary or rescind an arbitration award
or ruling—
a)
erroneously sought or erroneously made in
the absence of any party affected by that award;
b)
in which there is an ambiguity, or an
obvious error or omission, but only to the extent of that ambiguity,
error or omission;
c)
granted as a result of a mistake common to
the parties to the proceedings; or
d)
made in the absence of any party, on good
cause shown.”