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[2017] ZALCJHB 298
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Piotrans (Pty) Ltd v Taunyane and Others (J1803/17) [2017] ZALCJHB 298 (17 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J 1803/17
In
the matter between:
PIOTRANS
(PTY) LTD
Applicant
and
BEULAH HEPHZIBAH
TAUNYANE
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
EUGENE MTILENI
N.O
Third Respondent
Heard:
16 August 2017
Delivered:
17 August 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The
applicant approached the Court on an urgent basis to seek an order
‘staying the preliminary ruling’ issued by the
Third
Respondent (Commissioner) dated 13 July 2017 under case
number GAJB26953/17. The applicant further seeks an order
that the
Second Respondent, the Commission for Conciliation Mediation and
Arbitration (CCMA) should postpone the arbitration proceedings
set
down for 18 August 2017 at 09h00. The application is
unopposed. Mr T. Mohapi, an attorney representing Taunyane however
appeared in court and raised an issue regarding the mandate of Mr.
Vilakazi to represent the applicant. Even though I was not required
to indulge Mr. Mohapi in the light of the application being
unopposed, I was satisfied at the end that the applicant’s
attorneys
of record were duly appointed to represent it in this
matter.
Background:
[2]
The
First Respondent (Taunyane) had referred a dispute to the CCMA on
8 December 2016 in terms of the provisions of section
186
(2) (b)
[1]
of the Labour
Relations Act (LRA)
[2]
, and
alleged that he was unfairly suspended. Conciliation proceedings held
on 13 January 2017 failed to resolve the dispute,
and
Taunyane subsequently referred the dispute to arbitration.
[3]
At
the arbitration proceedings held on 28 June 2017, the
applicant had raised a preliminary point with regards to the
locus
standi
of the Taunyane. The argument was that the CCMA did not have
jurisdiction to determine the dispute since Taunyane had resigned
from the applicant’s employ on 15 November 2016. The
Commissioner had issued a ruling on 13 July 2017
and had
found that Taunyane had not resigned from her employ with the
applicant, and that the CCMA therefore had jurisdiction over
the
dispute.
[4]
Aggrieved
at the above outcome, the applicant believed that the ruling ought to
be reviewed and set aside on the grounds that the
Commissioner had
allegedly committed misconduct in relation to his duties, committed a
gross irregularity, and exceeded his powers.
On 20 July 2017,
the CCMA issued notices setting the dispute for arbitration on
18 August 2017. A review application
in respect of the
ruling of the Commissioner was filed and served on 21 July 2017.
[5]
The
applicant filed and served the current application on 4 August 2017,
setting the matter down for 16 August 2017.
As already
stated, this application remained unopposed as at its hearing. I had
nevertheless raised concerns with Mr. Vilakazi
of the applicant in
regard to this application, particularly in respect of the urgency of
the matter and the relief sought.
Evaluation:
[6]
The
principles relating to urgent applications are fairly trite
[3]
.
In explaining the provisions of Rule 8 of the Rules for the Conduct
of Proceedings in the Labour Court
[4]
,
the Labour Appeal Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[5]
held that;
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to which
the
ordinary applicable rules should be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is
not
entitled to rely on urgency that is self-created when seeking
deviation from the rules”.
[7]
It
therefore follows that an applicant seeking urgent relief must
adequately set out in the founding affidavit, the reasons for
the
urgency, the circumstances which render the matter urgent, and
whether substantial relief cannot be obtained at a later stage.
[8]
It
has further been stated that the basis for allowing parties to
dispense with the Rules of Court relating to time periods is to
prevent the occasioning of an injustice and involves the balancing of
this consideration with that of the rights of parties to
a considered
opportunity to place their cases before the court
[6]
.
It therefore follows that where the court is not satisfied that
sufficient reasons have been given for the matter to be treated
as
one of urgency, the application ought to be struck off from the roll
on that ground alone
[7]
.
[9]
In
the applicant’s founding affidavit as deposed to by its Human
Resources Manager, Anneline Atthea Smidt, and as it was further
submitted in Court by Mr. Vilakazi, the basis of the urgency is
inter
alia
that the matter at the CCMA is to be heard on 18 August 2017.
It was further contended that Taunyane’s attorneys
of record
had refused to consider a request for a postponement, and that the
CCMA was not in a position to consider a request to
stay proceedings
pending the determination of the review application. It was further
submitted that the applicant would be severely
prejudiced if the
ruling is not stayed pending the determination of the review
application as the review might prove to be academic
when ultimately
heard.
[10]
One
of the factors to be considered in determining whether a matter
should be accorded any urgent attention is the haste with which
a
party approached the Court in order to ameliorate the consequences of
the harm that may be caused if the matter is not treated
as urgent.
In this case, the CCMA notified the parties of the set-down on
20 July 2017. The applicant as already stated,
only
approached this court on 4 August 2017. Thus, twelve days had gone by
prior to the applicant approaching this Court, with
the primary basis
for that urgency being alleged to be the set-down date of the
arbitration proceedings. At the same time, as of
13 July 2017
when the ruling was issued, the applicant was made aware that the
matter was to be set-down for arbitration
as directed by the
Commissioner.
[11]
One
of the primary reasons for any delays in approaching the Court was
that the applicant made attempts to persuade Taunyane’s
attorneys of record to to have the arbitration proceedings
postponed, and was further waiting for a response in that regard.
As
already stated, the applicant knew as at 13 July 2017 that
the matter was to be set down for arbitration, and in my
view, a
non-cooperative party to litigation cannot be the basis of an excuse
as to the reason the Court was not timeously approached.
[12]
In
the light of the above, I am not satisfied that the applicant acted
with the necessary haste in approaching this Court. There
is no
adequate explanation proffered for the reason that this application
could not have been launched immediately after the ruling
was issued,
or at worst, upon receipt of notice of set-down from the CCMA.
Furthermore, and as pointed in court, the mere fact
that the matter
was set-down for a hearing was not in itself the basis upon which
this application can be accorded urgency. To
that end, I am not
satisfied that the applicant has placed before this Court, any
material or submissions as contemplated in Rule
8 and the authorities
referred to, that compel it to treat this matter as urgent.
[13]
It
is further trite that aligned to the issue of urgency is whether the
applicant does not have an alternative remedy, or whether
the matter
in dispute cannot be dealt with in the ordinary course. One of the
concerns I had raised with Mr Vilakazi of the applicant
was the fact
that the provisions of section 158 (1B)
[8]
of the LRA in essence discouraged parties from approaching this Court
midstream arbitration proceedings. The rationale behind these
provisions are equally obvious in that the objective of arbitration
proceedings is to expedite the resolution of disputes. Furthermore,
in instances where the review application lodged midstream
arbitration may be dismissed at some point, the prejudice to the
other
party to the dispute is immeasurable, particularly since the
parties would now be compelled go back to the CCMA to complete the
matter.
[14]
In
the light of the above, this Court, in consideration of the
provisions of section 158 (1B) of the LRA holds the firm view that
the applicant in any event, and to the extent that urgency has not
been established, has an alternative remedy. The applicant is
particularly aggrieved by the ruling of the third respondent
(Commissioner), and to the extent that the dispute at the CCMA is
ultimately resolved and still in favour of Taunyane, the applicant
has available to it, the provisions of section 145 of the LRA,
which
it can utilise in due course.
Order:
[15]
Accordingly,
the following order is deemed to be appropriate;
1.
The
applicant’s application is struck off the roll on account of
lack of urgency.
__________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa.
APPEARANCES:
On
behalf of the Applicant:
Mr. M Vilakazi of Nomaswazi Maseko INC
[1]
Section
186
:
Meaning of dismissal and unfair labour practice
(1)
…
(2)
`Unfair labour practice' means an unfair act or omission that arises
between an employer and an
employee
involving-
(a)
unfair conduct by the
employer relating to the promotion, demotion, probation (excluding
disputes about dismissals for a reason
relating to probation) or
training of an employee or relating to the provision of benefits to
an
employee
;
(b)
the unfair suspension of
an
employee
or
any other unfair disciplinary action short of dismissal in respect
of an
employee
;
(c)
a failure or refusal by an
employer to reinstate or re-employ a former employee in terms of any
agreement; and
(d)
an occupational detriment,
other than dismissal, in contravention of the Protected Disclosures
Act, 2000 (Act No. 26 of 2000),
on account of the
employee
having made a protected
disclosure defined in that Act.
[2]
Act 66 of 1995
[3]
See
Mimmo’s
Franchising CC v
Spiro,
Harry David (JA58/00)
[2002] ZALAC 7
(29 March 2002)
at
para 29 where it was held that;
“
A
party applying for relief on an urgent basis must in the founding
papers set out the reasons for urgency; state why urgent relief
is
necessary; and also set out why the requirements of the rules of
court have not been complied with, if that is the case (sub-rules
8(2)(a) and (b)). The purpose of those sub-rules is self-evident.
Considerations of fairness dictate that litigious matters should
be
heard in more or less the sequence in which they have become ripe
for hearing. If it were to be otherwise, it will bring about
additional delays in the hearing of matters already awaiting their
turn and result in self-evident unfairness and the potential
for
prejudice. Sub-rule 8(2) requires an applicant to place such facts
before the court as would be sufficient to enable it to
exercise a
judicial discretion in regard to whether sufficient and satisfactory
grounds have been shown to exist to justify giving
the particular
matter preference. Urgency usually entails a deviation from the
forms, time-limits and procedures prescribed by
the rules or a
departure from the established sitting times of the court (Cf: Luna
Meubel Vervaardigers (Edms) Bpk v Makin
and Another (t/a Makin’s
Furniture Manufacturers) 1977(4) SA 135 (W) at 136 H). The
factors that are usually taken
into account in the exercise of such
a discretion are a) any prejudice that an applicant might suffer if
the application had
to be dealt with in the ordinary course; b) any
prejudice other parties awaiting the hearing of their matters might
suffer if
the particular application were to be given preference;
and c) any prejudice that the respondent might suffer as a result of
any deviation from the prescribed forms and procedures, the
abridgement of any prescribed time-limits and an accelleration of
the hearing (See: IL & B Marcow Caterers (Pty) Ltd v
Greatermans SA Ltd and Another: Aroma Inn (Pty) Ltd v Hypermarkets
(Pty) Ltd and Another 1981(4) SA 108 (C) at 112 H – 113
A; 114 A – B). The provisions of Rule 8 clearly
apply to all urgent applications, irrespective of whether the relief
claimed is of an interim or final nature”.
[4]
Which reads;
(1)
“
A
party that applies for urgent relief must file an application that
complies with the requirements of rules 7(1), 7(2), 7(3)
and, if
applicable, 7(7).
(2)
The
affidavit in support of the application must also contain-
(a) the reasons for urgency and why
urgent relief is necessary;
(b) the reasons why the requirements
of the rules were not complied with, if that is the case;
And
(c) if a party brings an application
in a shorter period than that provided for in terms of section 68(2)
of the Act, the party
must provide reasons why a shorter period of
notice should be permitted”.
[5]
(2010) 31 ILJ 112
at para 18
[6]
See
National
Police Services Union v National Commissioner of the National Police
Services and Others
(1999) 20 ILJ 2408 (LC);
Commissioner
For the South African Revenue Services v Hawker Air Services (Pty)
Ltd and Another
Case no: 379/2005 at para 9 and
Vermaak
v Taung Local Municipality
(JR315/13) [2013] ZALCJHB 43 (12 March 2013)
[7]
See
Commissioner
For the South African Revenue Services v Hawker Air Services (Pty)
Ltd and Another
(supra)
where it was held that:
“
Urgency
is a reason that may justify deviation from the times and forms the
rules prescribe. It relates to form, not substance,
and is not a
prerequisite to a claim for substantive relief. Where an application
is brought on the basis of urgency, the rules
of court permit a
court (or a judge in chambers) to dispense with the forms and
service usually required, and to dispose of it
‘as to it seems
meet’ (Rule 6(12) (a)). This in effect permits an urgent
applicant, subject to the court’s
control, to forge its own
rules (See Republikeinses Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk 1972(1) SA
773 (A) 782A-783H) which must ‘as
far as practicable be in accordance with’ the rules). Where
the application lacks
the requisite element or degree of urgency,
the court can for that reason decline to exercise its powers under
Rule 6(12) (a).
The matter is then not properly on the court’s
roll, and it declines to hear it. The appropriate order is generally
to
strike the application from the roll. This enables the applicant
to set the matter down again, on proper notice and compliance”.
[8]
Which provides
that;
‘
The
Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under the
auspices
of the Commission or any bargaining council in terms of the
provisions of this Act before the issue in dispute has been
finally
determined by the Commission or the bargaining council, as the case
may be, except if the Labour Court is of the opinion
that it is just
and equitable to review the decision or ruling made before the issue
in dispute has been finally determined.’