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[2017] ZALCJHB 437
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PSA obo Jhupsee v Ngako NO and Others (JR1956/15) [2017] ZALCJHB 437 (24 November 2017)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
case
No: JR 1956/15
In
the matter between
PSA
obo S JHUPSEE
Applicant
and
COMMISSIONER
PM NGAKO
N.O
First Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL (PRETORIA)
Second Respondent
DEPARTMENT
OF ENVIRONMENTAL AFFAIRS
Third Respondent
Heard:
18 May 2017 Supplementary Heads: 06 JUNE 2017
Delivered:
24 November 2017
Summary:
[Review application of contempt ruling, section 158(1)(g) of the LRA-
Non-joinder of a party who has legal interests in
a
matter-Application to strike out in terms of Rule 6(15) of the
Uniform Ruls-Section 158(1B), and 142 of the LRA]
JUDGMENT
MABASO
AJ
Introduction
[1]
The applicant is Shamilla Nunkumar Jhupsee (the applicant), the first
respondent is the General Public Service Sectorial Bargaining
Council
(the Bargaining Council), the second respondent is Commissioner PM
Ngako (the arbitrator), and the third respondent is
the Department of
Environmental Affairs (the respondent). The respondent is the only
party that is opposing this application.
[2]
In October
2015, after the respondent had closed its case (in January 2015) in
an unfair dismissal dispute before the Bargaining
Council,
[1]
the applicant approached this Court,
[2]
seeking an order in terms of section 158(1)(g)
[3]
of the Labour Relations Act
[4]
(the LRA), in the following terms:
"1.
An order in terms of which the ruling, of the first respondent,
Commissioner
PM Ngako N.O.(other than the finding of contempt in
respect of the KPMG report on the performance of the Chief
Directorate: Transfrontier
Conservation and Protected Areas), under
case number G PBC 838/2013, dated 21 August 2015,(the Ruling) to the
effect that the third
respondent's chief director, Ms Skumsa
Mancotywa
[5]
acting in her
official capacity,
and/or
[6]
the Third Respondent are not in contempt of the second respondent and
or the ruling of the second respondent dated 2 April 2015
(the
discovery ruling) as contemplated in terms of the provisions of
section 142 (9) of the Labour relations Act number 55 of 1995
(as
amended) for refusing to provide to the applicant the documents set
out in items 1b,1c,1d,4,5,6,7,9,10,11,12,13,14,15,16, and
17 of the
annexure to the Subpoena dated 17 March 2015(the Subpoena) is
reviewed, set aside and substituted with the following
order:
The
Third respondent's chief director, Ms Skumsa Mancotywa acting in her
official capacity, and /or the third respondent are in
contempt of
the second Respondent and/ or the Ruling of the Second Respondent
dated 2 April 2015 as contemplated in terms of the
provisions of
section 142(9) of the Labour relations Act number 55 of 1995 (as
amended)… For refusing to provide to the
applicant the
documents set out in items 1b,1c,1d,4,5,6,7,9,10,11,12,13,14,15,16,
and 17 of the annexure to the Subpoena dated
17 March 2015…
2
An order in terms of which the arbitration process before the second
respondent,
pending the outcome of the rules of this review
application, he states the end of suspended as provided for in
section 158(1)(a)
of the Act, read with section 8(1)(e) of PAJA
…”
[3]
The
applicant brought another application wherein she asked this Court to
strike out certain paragraphs of the respondent’s
answering
affidavit.
[7]
Issues
for consideration
[4]
The following preliminary issues are under consideration, before the
review application may be entertained:
4.1
The non-joinder of Ms Mancotywa, the Chief Director of the
respondent.
[8]
4.2
Has the applicant presented a proper case for the application to
strike out?
4.3
Is there any exceptional circumstances, which justify that the review
application be heard,
in terms of the provisions of subsection
158(1B) of the LRA?
Relevant
background
[5]
In March
2013, the applicant was dismissed by the respondent after being found
guilty of misconduct. Following her dismissal, she
referred an unfair
dismissal dispute to the Bargaining Council for determination of the
fairness thereof. On 08 November 2013,
the date of the arbitration
hearing, Commissioner Mthukwane postponed the arbitration as the
applicant had not received documents
that she had asked the
respondent to discover, and further directed that the applicant be
given an opportunity to peruse all the
documents which are regarded
as relevant to the case and make copies by no later than 25 November
2013, and that parties must hold
a pre-arbitration conference by no
later than 13 December 2013.
[9]
[6]
By 25
November 2013, both parties had not reached an agreement in respect
of inspection of the documents, as according to the applicant
some
documents were not provided to her.
[10]
As a result, on "13 November 2014" a subpoena was issued
against Ms Mancotywa in terms of which she was directed to appear
before the Bargaining Council on 19 November 2014 and" to
produce any book, document or object in terms of section
142(1)(b)".
[11]
On the
latter date, the arbitration could not proceed because "certain
documents previously requested remained outstanding."
[12]
[7]
On 17 March
2015, another subpoena was issued against Ms Mancotywa directing her
to appear before the arbitrator on 01 April 2015
and to produce
specific information.
[13]
On
31 March 2015, the respondent delivered some of the documents to the
applicant. However, on 01 April 2015, the arbitration
was postponed
and the arbitrator made a ruling that the applicant be allowed access
to the documents that she had identified as
relevant to her case.
[14]
On 23 April 2015, the applicant attended at the offices of the
respondent, and was provided with some of the documents and further
advised by "
An
official [of the respondent that] indicated to [her]that the
documents files are scattered with different officials, and it could
only find few files on the Programme
.”
[15]
[8]
Later that day, on 23 April 2015, the applicant was given a box by
the respondent containing some of the documents to inspect.
Thereafter, she was directed to Ms Koena Cholo (Ms Cholo), another
official of the respondent, who indicated to her that,
"no
physical files were available with regard to the Kids and Parks,
People Parks and Land claims Programmes but that the information
they
have has been scattered onto her computer. I then perused the folders
on the computer, and retrieve some documents, but the
folders made
available did not contain the history of the programmes from the
start to the date of my dismissal. [Ms Cholo] indicated
that this is
all the information that the department has and no further
information is available. The statement of Ms Cholo cannot
be correct
as the respondent is, alternatively should be, in possession of all
the information relating to the aforementioned programmes".
[16]
[9]
The respondent’s response to the applicant's assertion to the
above paragraph reads as follows:
“
It
is denied that the statement provided by [Ms Cholo] was incorrect. no
evidence has been provided to support the conclusion that
the
statement by [her] is incorrect or false. [The respondent] provided
documents it had in its possession. The conduct of [the
respondent]
is not contemptuous and [the arbitrator] correctly and reasonably
found that [the respondent] is not in contempt.
"
[17]
[10]
On 8 May 2015, the applicant brought a substantial application for
contempt against Ms Mancotywa and/or the respondent in that
they were
in contempt of the Bargaining Council and/ or the ruling dated 2
April 2015 (the Ruling), in terms of section 142(9)
of the LRA. The
arbitrator proceeded to rule that Ms Mancotywa, and/or the respondent
are in contempt of the Bargaining Council
and/or the Ruling. However,
the arbitrator did not find Ms Mancotywa nor the respondent in
contempt of failure to provide certain
information and held that,
“…
This
documents it has been confirmed a spread among other different
employees of the respondent in this documents can still be provided
if one person can be assigned the responsibility of collating
outstanding documents. I agree the respondent took steps and measures
to provide the requested documents with the exception of item 7 of
the annexure of the Supoena being the KPMG report on the Chief
Directorate:…”
[18]
[11]
The
applicant is asking this Court to supplant the contempt ruling of the
arbitrator with an order that the respondent and/or Ms
Mancotywa are
in contempt of the Bargaining Council or “the ruling” as
mentioned in paragraph 2 above. The standard
procedure in respect of
the contempt of the Bargaining Council is as follows: once an
arbitrator has found that a party is in contempt,
then such ruling
may be referred to the Labour Court, by the commissioner, for it to
either “
confirm,
vary
[19]
,
or set aside the finding”
.
However, in this case, the applicant approached this Court by way of
a review application. Meaning that this Court is urged to
substitute
the ruling with an order that the respondent and /or Ms Mancotywa are
in contempt of the Bargaining Council and/ or
the Ruling.
Non-joinder
[12]
All three
sets of affidavits
[20]
herein
did not assist this Court in demonstrating as to what role Ms
Mancotywa played in this matter except indicating that she
was a
Chief Director, a public official position, who was served with
subpoenas via email. For example, these affidavits do not
disclose as
to whether she was in possession of this document either directly or
indirectly in order to establish an element of
willfulness, taking
into account that the requirements for contempt are that (i) the
ruling was issued, (ii) such a ruling must
have been brought to the
attention of the party who is accused of failing to comply, (iii) and
that the non-compliance must have
been wilful and
mala
fide
.
[21]
[13]
It is
apposite to observe the following principle, regarding non-joinder
that will guide this Court towards its finding. There is
a judicial
curb that courts may not raise issues which are not pleaded by the
parties before such court. However, there may be
instances where such
court may raise issues, if they emerge from the affidavits and will
be necessary for the decision of the case,
[22]
as parties stand or fall with their respective papers, meaning that
the
mero
motu
principle is only applicable to certain circumstances. Courts would
be guided by the nature and the impact of the issues, such
as the
interests of a third party relating to the matter before it.
[14]
Recently,
Binns-Ward
J, rehearsed the old principle in respect of non-joinder of a party
who has an interest in a matter, in
Economic
Freedom Fighters and others v Speaker of the National Assembly and
others
[23]
said:
“
it
is a fundamental principle of law that the court should not at the
instance of any party grant an order whereby any other party’s
interests may be directly affected without formal judicial notice of
the proceedings having first been giving to such other party.
This is
so that is substantially and directly interested parties may be heard
before the order is given, which is a matter of fairness…
It
is thus mandatory for a party that institutes proceedings to join
every other party that has what is called “the direct
and
substantial interest” in the relief sought
. If the parties
do not themselves raise a point of none joinder when it is indicated,
the court shall do so
mero motu.”
(Own emphasis)
[15]
The issue of non-joinder of Ms Mancotywa, as a party whom this Court
has been asked to find guilty, was
mero motu
raised by this
Court, and parties were given an opportunity to deliver supplementary
heads of argument. As any finding in favour
of the applicant herein
against Ms Mancotywa will without any doubt have an impact on her
status because she will be in contempt
of failure to deliver
documents mentioned in prayer one of the notice of motion, paragraph
2 above.
[16]
In respect
of the joinder of a party who might have an interest in the matter,
the Constitutional Court, where it had to decide
as to whether the
municipal manager and its mayor should be joined where the issue
relates to the business of the municipality,
in the matter of
Pheko
and Others v Ekurhuleni Metropolitan Municipality (Socio-Economic
Rights Institute of South Africa as amucus curiae)
[24]
held that,
“
the
test for joinder requires that a litigant has a direct and
substantial interest in the subject matter of the litigation, that
is,
a
legal interest in the subject matter of the litigation which may be
affected by the decision of the court
.
This view of what constituted directing the substantial interest has
been explained and endorsed in a number of decisions by our
court.”
[25]
(Own
emphasis)
[17]
In the
EFF
[26]
matter, in emphasizing what a direct and substantial interest the
Court held that:
“
[T]he
criterion is the realistic possibility, not the certainty, that the
interests of the parties might be substantially and directly
affected; hence the stress placed in the applicants division
judgement on the effect of the weight “may” in the
context…I
think, that the phrase “the interests of the
third parties “denoted the rights of such parties”.
[27]
[18]
This is a review application, as it was held by
Khampepe
ADJP
(as
she then was) in
Member
of the Executive Council, Department of Education Eastern Cape v
Gqebe
’s
matter
[28]
that,
“
Failure
to join interested parties to the proceedings
In
review applications, it is necessary to cite [interested party]….the
Labour Court should have afforded [interested parties]
an opportunity
to make representations on the issue relating to whether the award
fell to be set aside or not ”.
[29]
[19]
As indicated above, I raised the two issues namely, whether the
subpoenas were properly served on Ms Mancotywa, and her non-joinder,
in this review application. In respect of the latter question, the
applicant in her supplementary heads of argument submitted that
it
would “…
not be necessary and appropriate to join a
party at a review application stage was not the party before the
second respondent”.
[20]
It is my view that, as Ms Mancotywa was found to be in contempt of
the Bargaining Council “
and/or”
the Ruling, and
apparently the arbitrator’s finding which suggests that she
contemptuously refused to comply with the terms
of the subpoena. And
the applicant approached this Court seeking an order that the same
ruling be reviewed and set aside and that
Ms Mancotywa be held in
contempt “
For refusing
to provide to
the applicant the documents
”, it was necessary for her
to cited in this review application.
[21]
In the matter of
Pheko
[30]
,
in respect of contempt proceedings and who should be a party to a
contempt application, the Constitutional Court held that,
“
When
a Court Order is disobeyed, not only the person named or party to the
suit but all those who, with the knowledge of the order,
aid and abet
the disobedience or willfully are party to the disobedience are
liable. The reason for the extending the ambit of
contempt
proceedings in this manner is to prevent any attempt to defeat and
obstruct the due process of justice and safeguard its
administration.
Differently put, the purpose is to ensure that no one may, with
impunity, wilfully get in the way of, or otherwise
interfere with,
the due course of justice of bringing the administration of justice
into disrepute.”
[31]
[22]
Contempt proceedings are between an alleged contemptuous party and a
forum (such as the CCMA and the Bargaining Councils).
[32]
In this case, the contempt was between Ms Mancotywa (and/or the
Respondent) ,and the Bargaining Council. The applicant was just
a
complainant, therefore, it was necessary for Ms Mancotywa to be
joined in this review application, and without her being a party
to
this review application in order to give her an opportunity to
respond, is a serious defect. I say this based on the fact
that the
subpoenas were issued against Ms Mancotywa. And that she should have
an opportunity to say whether or not this court should
make an order
against her because if this Court were to make an order as prayed for
it would inevitably affect her persona.
[23]
Also taking into account that the Supreme Court of Appeal in
expanding on wilfulness of a public official, in the matter of
Meadow
Glen Home Owners Association v City of Tshwane Metropolitan
Municipality
[33]
,
held that
“
it
is necessary immediately that there is no basis in our lawful orders
or contempt of court to be made against officials of public
bodies,
nominated or deployed for that purpose, were not themselves
personally responsible for the wilful default in complying
with the
court order that lies at the heart of contempt proceedings.”
[34]
[24]
I, therefore, conclude that Ms Mancotywa has a legal interest in this
matter and without her being a party to this application
is an
incurable defect
,
as this Court was asked to review and set
aside the ruling of the arbitrator and replace it with an order that
Ms Mancotywa is in
contempt for failing to deliver certain documents
as previously directed by the arbitrator, without her being a party
to these
proceedings, it will be incompetent to do so.
[25]
It is also important to mention that the applicant in her replying
affidavit asserted that the respondent delivered its answering
affidavit out of the 10-day period as required by the rules of this
court and that such answering affidavit is not accompanied
by a
condonation application. Clause 11.4.2 of the practice manual
provides that it is not necessary for a party in delivering
an
answering affidavit or replying affidavit out of time to deliver
condonation application, the only time whereby it is necessary
to do
so is whereby the other party is objecting to such late delivery.
[35]
In casu
,
the applicant did not object to the late delivery
thereof, therefore, it was not necessary for condonation application
be delivered.
Application
to strike out
[26]
The rules of this Court do not expressly deal with an application to
strike out, however, it is a common practice that if the
rules of
this Court do not cover a specific procedural aspect, then the
Uniform Rules will automatically apply. In this case, the
applicant
has asked this Court to strike out paragraphs 18 to 36, 39, part of
72, 73,102 and the first sentence of paragraph 104
of the
respondent’s answering affidavit.
[27]
Rule 6 (15) of the Uniform Rules, is the provision which governs an
application to strike out and reads thus,
“
The
court may on application order to be struck out
from any
affidavit any matter which is
scandalous, vexatious or irrelevant
,
with an appropriate order as to costs, including costs as between
attorney and client. The court may not grant the application
unless
it is satisfied that the applicant will be prejudiced if the
application is not granted”. (Own emphasis)
[28]
The words such as scandalous, vexatious or irrelevant are not defined
in the Rules. However,
Jajhbay
J
in
Tshabalala-Msimang
and another v Makhanya and Others
[36]
held that,
“
Irrelevant”
with regard to the contents of an affidavit refers to allegations
which do not apply to the matter in hand and do not contribute
one
way or another to a decision of such matter. “
Vexatious
”
in respect of an affidavit refers to allegations which may or may not
be relevant but are so worded as to convey an intention
to harass or
annoy. “
Scandalous
matter”
is allegations or matters which may or may not be relevant but
which are so worded as to be abusive or defamatory”.
[29]
An applicant has to chronicle in her affidavit that at least one of
these requirements (scandalous, vexatious or irrelevant)
is present,
and in addition that she will be prejudiced if the application to
strike out is not granted.
[37]
[30]
The paragraphs that have been referred to in the answering affidavit
deal among other things with the reason for the dismissal
of the
applicant, what has transpired thus far in the arbitration, most
importantly that the respondent has closed its case in
the
arbitration, it led evidence of three witnesses, and that “no
version was put to (these witnesses)”.
[38]
As it would emerge below, I am of the view that the applicant has not
satisfied this Court about the application to strike out,
as none of
the aforementioned requirements are present in the application to
strike out.
Exceptional
circumstances
[31]
The Labour Court has powers to review and set aside any decision that
has been made during arbitration proceedings, or by any
commissioner
executing his duties in terms of the provisions of the LRA, however,
there is an exception to this law, which is subsection
158(1B) of the
LRA, as the applicant correctly referred to this subsection in her
founding affidavit, 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”.
[39]
(Own
emphasis)
[32]
It is important to underscore that this subsection was introduced in
order to curb delays in finalising disputes before dispute
resolution
forums established in terms of the provisions of LRA. And that a
presiding officer in order to determine what is just
and equitable
has to take into account the purpose of the LRA, which is to resolve
disputes speedily and with minimum legal formalities.
[33]
The explanatory memorandum which accompanied this subsection provides
that review should be allowed only in exceptional circumstances.
The
purpose is to limit the use of piece-meal approach in review
applications during arbitration proceedings.
[40]
Section 158(1) (g) of the LRA, as much as it gives this Court powers
to review “any ruling” made by a dispute resolution
forum. This section should not be read in isolation as new
developments and amendments in the same Act must be visited, e.g.
both
provisions of subsection 158(1B) and section 142. It is my view
that in order to determine what is just and equitable under this
provision one has to look
inter
alia
as
to whether an applicant will suffer any prejudice if the review
application is not entertained, and the stage of the arbitration.
[34]
I propose to quote the relevant provisions of contempt under section
142 of the LRA, as I do below,
“
(8) A
person commits contempt of the Commission—
(a)
if, after having been subpoenaed to appear before the commissioner,
the person without
good cause does not attend at the time and place
stated in the subpoena;
(b)
if, after having appeared in response to a subpoena, that person
fails to remain in
attendance until excused by the commissioner;
(c)
by refusing to take the oath or to make an affirmation as a witness
when a commissioner
so requires;
(d)
by refusing to answer any question fully and to the best of that
person’s knowledge
and belief subject to subsection (6);
(e)
if the person, without good cause, fails to produce any
book, document or object specified in a subpoena to a commissioner
;
( f )
if the person wilfully hinders a commissioner in performing any
function conferred
by or in terms of this Act;
(g)
if the person insults, disparages or belittles a commissioner, or
prejudices or improperly
influences the proceedings or improperly
anticipates the commissioner’s award;
(h)
by wilfully interrupting the conciliation or arbitration proceedings
or misbehaving
in any other manner during those proceedings;
(i)
by doing anything else in relation to the Commission which, if done
in relation
to a court of law, would have been contempt of court.
(9)(a) A
commissioner may make a finding that a party is in contempt of the
Commission for any of the reasons set out
in subsection (8).
(b)
The
commissioner
may refer the finding
, together
with the record of the proceedings, to the Labour Court for its
decision in terms of subsection (11
).
(10)
Before
making a decision in terms of subsection (11), the Labour Court—
(a)
must
subpoena any person found in contempt to
appear before it on a date determined by the Court
;
(b)
may subpoena any other person to appear before it on a date
determined by the Court;
…
(4)
The Labour Court may
confirm, vary, or set aside
the finding of a Commissioner
.”(Own emphasis)
[35]
Without making any pronouncement herein- taking into account my
conclusion below, paragraphs 38 and 39, it is prudent to carefully
study the provisions of section 142(9) of the LRA which give a
commissioner a right to refer a contempt finding to the Labour Court
in order for his/her decision to be looked at by a judge. Therefore,
I wonder if it was the intention of the legislature that a
contempt
finding, specifically under ss 142(8)(e) of the LRA, by a
commissioner can be reviewed and replaced with any order under
ss
158(1)(g) of the LRA if an arbitration proceedings has not been
finalised, taking into account that the Labour Court if called
upon
to decide on the contempt finding “must subpoena” any
person found in contempt and has powers to “
vary”
such
finding. Taking into account that if the Labour Court were to review
and set aside a contempt ruling by a commissioner appointed
in terms
of the LRA, before an arbitration could be finalised, it would have
decided the ruling without subpoenaing such person,
and such ruling
will now not be a ruling from such forum but a court order issued by
a Labour Court judge. Therefore, the question
is, once the contempt
finding becomes a court order, will a commissioner still have
discretion in terms of section 142(9)(b) of
the LRA to refer the same
contempt finding/court order to the same Labour Court to “
confirm,
vary, or set aside.”
[41]
[36]
Back
in casu
, the respondent in opposing this application, has
asserted that the applicant is delaying the finalisation of the
arbitration as
the documents in question are not relevant as she
failed to put any version to its witnesses relating to the documents,
and has
dealt with the background to this matter as to what has been
presented before the arbitrator, therefore, for this Court to be in
a
position to decide whether there is “
just and equitable”
grounds to decide the review, it was necessary to understand the
background to this application.
[37]
The respondent asserted that at the time when this application was
delivered, evidence had already been tendered on its behalf,
and it
had already closed its case as a party which has onus of proof in a
dismissal dispute,
[42]
and
that there was no version that was put to its witnesses in disputing
the allegations against the applicant.
[38]
Taking into account the purpose of the LRA which requires speedy
resolution of disputes, the arbitration is part-heard, and
it is more
than four years after the dismissal of the applicant. However, the
fairness thereof has not been decided and when she
approached this
Court, she did not do so on an urgent basis. I conclude that to deal
with a review application would defeat the
purpose of the LRA. No
exceptional circumstances that have been placed before me and the
applicant has failed to show the just
and equitable grounds as
required by section 158(1B) of the LRA.
[39]
I also hold the view that the applicant will not suffer any prejudice
if the review application is not entertained, as stated
by the
respondent that there was no version that was put to its witnesses
regarding the documents and the arbitration has cascaded
to the close
of its case, therefore, I conclude that there are no just and
equitable grounds before me to deal with the review
application, as
required by section 158(1B) of the Act.
[40]
The issue of subpoenas was to be relevant if I were to deal with the
merits of the review application, therefore, I deem unnecessary
to
deliberate on this issue.
[41]
I, therefore, make the following order.
Order
1.
The application to stay the proceedings under the Second Respondent’s
case number G PBC 838/2013 is not
granted.
2.
The application to strike out part of the respondent’s
answering affidavit fails.
3.
The review application is struck off the roll.
4.
There is no order as to costs.
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr De Bryn
Instructed
by:
Deon De Bryn Attorneys
For
the Respondent:
Advocate Matsholo
Instructed
by:
Tshiqi Zebediela Inc.
[1]
Application to strike out: supporting affidavit, page 167 at para
6.2
[2]
Argued before me on 18 May 2017,in the normal motion roll.
[3]
“subject to section 145, review the performance or purported
performance of any function provided for in this Act on any
grounds
that are permissible in law”
[4]
Act 66 of 1995 as amended.
[5]
Hereinafter referred to as Ms Mancotywa
[6]
Own emphasis.
[7]
Pages 161 to 187.
[8]
As I requested the parties to submit supplementary heads of argument
to deal with this aspect.
[9]
Supporting affidavit, page 9, pages 46 and 47.
[10]
Ibid, para 6.4.
[11]
Ibid, para 6.5, and page 48.
[12]
Ibid, page 10 at para 6.6.
[13]
Ibid, page 11 at para 6.12, and page 58.
[14]
Ibid, page 11, and page 63.
[15]
Ibid, page 13 at para 6.20. Contempt ruling page 42.
[16]
Ibid, page 13 at para 6.21.
[17]
Answering affidavit, page 104 at para 75.
[18]
Ibid, page 42. Record’s:page 215.
[19]
To change/modify(Oxford dictionary).
[20]
Founding, supplementary, and replying affidavits.
[21]
Fakie
NO v CCII Systems (Pty) Ltd
2006 (4) SA 326 (SCA)
[22]
See
Barkhuizen
v Napier
2007(5) SA 323 (CC), at para 39.
[23]
[2016] 1 All SA 520 (WCC)
[24]
(No 2)2015 (6) BCLR 711 (CC)
[25]
Ibid at para 56.
[26]
Fn 21
supra.
[27]
Ibid, para 35.
[28]
(2009) 30 ILJ 2388 (LAC at para 33.
[29]
Ibid, para 34. Cases cited therein are “(
Public
Service Association v Department v of Justice
2004
(2) BLLR 118
(LAC).
Dlala
v Commissioner for CCMA and another
[1999] 7 BLLR 670
(LC) at para [19];
Johnson
v CCMA and Others
[2005] 8 BLLR 796
(LC) at para [6];
Duda
v MEC for Gauteng Department of Education and Others
(2001) 22 ILJ 1637 (LC) at para [23];
De
Beers Consolidated Mines Ltd v CCMA and Others
[2009] 9 BLLR 995
(LAC) at para [15]; see also
Cloete
v Evander Gold Mines Ltd
[2001] 4 BLLR 433
(LC) at para [36]”.
[30]
Ibid.
[31]
Ibid.
[32]
I say this because subsection 142(8) provides that, “
contempt
of the Commission
”.,
not of a complainant or a party involved in an arbitration.
[33]
2015 (2) SA 415 (SCA).
[34]
Ibid at para 20.
[35]
“
Where
the respondent or the applicant has filed its opposing or replying
affidavits outside the time period set out in the rules,
there is no
need to apply for condonation for the late filling of such
affidavits unless the party upon whom the affidavits are
served
files and serves a Notice of Objection to the late filing of the
affidavits. The Notice of Objection must be served and
filed within
10 days of the receipt of the affidavits after which time the right
to object shall lapse
”.
[36]
2008 (3) BCLR 338
(W), and cited with approval in
Helen
Suzman Foundation v President of the Republic of South Africa and
Others
2015 (2) SA 1 (CC) at [27]. See also the LAC’s
judgment (
Public
Servants Association of South Africa v Minister of Department of
Home Affairs and Others
[2012] ZALAC 35
;
[2013] 3 BLLR 237
(LAC). The Constitutional Court
in the matter of
Lawyers
for Human Rights v Minister in the Presidency and Others
2017
(4) BCLR 445
(CC) held that,
“
[19]
What is “vexatious”? In Bisset the Court said this
was litigation that was
“frivolous, improper, instituted
without sufficient ground, to serve solely as an annoyance to the
defendant”.And
a frivolous complaint? That is one with
no serious purpose or value. Vexatious litigation is initiated
without probable
cause by one who is not acting in good faith and is
doing so for the purpose of annoying or embarrassing an opponent.
Legal
action that is not likely to lead to any procedural result is
vexatious
”(footnoted omitted)
[37]
Ibid.
[38]
Page 91 at para 36.
[39]
.
MEMORANDUM OF OBJECTS LABOUR RELATIONS AMENDMENT BILL, 2012: “Clause
26 of the Bill seeks to amend section 158 of the
Act to provide that
only in
exceptional
circumstances
the Labour Court may deal with review applications against decisions
or rulings of the Commission before a matter has been finalised
by the Commission”(own emphasis)
[41]
LABOUR RELATIONS AMENDMENT BILL, 2000 EXPLANATORY MEMORANDUM: “The
proposed amendment gives a Commissioner power to make
a finding of
contempt. The Commissioner would then refer the findings and
the relevant record of proceedings to the Labour
Court for its
consideration. The Labour Court will have the power, after an
appropriate hearing, to confirm, set aside
or vary the finding and
to impose appropriate sanction for contempt”.
[42]
Engen
Petroleum Ltd v CCMA &
O
thers
[2007] 8 BLLR 707
(LAC), para 123.