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[2018] ZALCJHB 256
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Financial Fiscal Commission v CCMA, Pretoria and Others (J2439/16) [2018] ZALCJHB 256 (2 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J 2439/16
In the
matter between:
FINANCIAL
FISCAL COMMISSION
Applicant
and
CCMA,
PRETORIA
First Respondent
MILANZO
ISAAC
N.O.
Second
Respondent
MAVUSO
ROSSWELL VOKWANA
Third Respondent
Heard:
27 July 2018
Delivered:
2 August 2018
JUDGMENT
RABKIN-NAICKER,
J:
[1] This
applicant seeks the following relief on an urgent basis:
“
That
the first and second respondents be interdicted and restrained from
commencing arbitration proceedings in the dispute between
the
applicant and the third respondent under case number GAJB23000-17
pending the final determination of the review application
under case
number: JR1382/18, alternatively, that the arbitration proceedings be
stayed pending the final determination of the
aforesaid review
application.
[2] The
arbitration proceedings have been set down for 3 August 2018.
I first deal whether the Court is prepared to treat
the matter as
urgent, without going into the substantive merits of the matter.
[3] The
proceedings set down for the 3 August 2018 relate to an
alleged unfair labour practice pertaining to suspension.
The third
respondent is employed as the Chief Financial Officer (CFO) of the
applicant and was suspended on 22 September 2016.
His
disciplinary hearing is scheduled for 3 August 2017.
[4] On
7 June 2018, the condonation ruling which applicants seeks
to review, was issued. The parties were informed on
3 July 2018
that the matter was enrolled for an arbitration hearing. The
applicant did not launch the review application
until 16 July 2018.
In other words, the applicant rather than file such review urgently,
waited for the full six-week
period to do so. The applicant then
waited until the 20 July 2018 to file this application.
[5] In
its founding papers, the applicant’s averments relevant to
urgency are the following that:
“
4.1.1
The arbitration proceedings which are sought to be stayed are
scheduled to commence on 3 August 2018;…..
4.1.5
The applicant did not delay in bringing this application. The review
application was filed on 16 July and
its notice of motion contains
the same interdictory relief as that sought in this application but
the respondents have not agreed
thereto, thereby justifying the
applicant in approaching the Court for urgent relief…”
[6] The
review application was not brought on an urgent basis. One can only
presume that the reason for the inclusion of a prayer
for the staying
of the arbitration proceedings in that application was tactical
rather than premised on any legal basis. There
is no explanation as
to why the applicant did not seek to review the condonation ruling
urgently once it was issued,
i.e.
during the period that the
set down date for the arbitration hearing was awaited.
[7] In
the Court’s view, this application is a case of self-created
urgency, the timing of its lodging carefully crafted.
The matter of
staying the arbitration proceedings was urgent as soon as the
condonation ruling was issued on 7 June 2018.
The applicant
only served the review application on the third respondent on the
9 July 2018, the day that it received
the notice of set
down for arbitration.
[8] The
Practice Manual of this Court provides that:
“
12.10
Deviation from the time periods prescribed by the Rules of Court must
be strictly commensurate with the urgency
of the matter as set out in
the founding papers. In cases of extreme urgency, a reasonable time
must be afforded to the respondent
to give notice of intention to
oppose.
12.11
The court will decline to grant an order for the enrolment of the
application as an urgent application and/or
for the dispensing of the
forms and services provided for in the rule if the facts and
circumstances set out in the applicant's
affidavits do not constitute
sufficient urgency for the application to be brought as an urgent
application and/or justify the abrogation
or curtailment of the time
periods referred to in the Rule 6(5) and/or justify the failure to
serve the application as required.
Save for a possible adverse cost
order against the applicant, the court will make no order on the
application or will strike the
matter off the roll. These
requirements will be strictly enforced by the presiding judge.”
[9]
It is only once an applicant
has persuaded the court that sufficient grounds exist which
necessitate a relaxation of the rules and
ordinary practice, that the
court will proceed to consider a matter as one of urgency. The extent
to which the court will allow
parties to dispense with the rules
relating to time periods will depend on the degree of urgency in the
matter.
[1]
[10] In
all the circumstances, I am not persuaded that the facts set out in
the applicant’s affidavits constitute sufficient
urgency or
justify the abrogation of the time periods in the normal course. The
applicant asked that costs be reserved until the
hearing of the
review application. Third respondent sought punitive costs. The order
I make takes into account both law and equity
in deciding on an
appropriate costs order.
[11] In
all the circumstances, I make the following order:
Order
1.
The application is struck off the roll with costs.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
K Tsatsawane instructed by Mavuso Rosswell Vokwana
For the
Respondent:
Mr N.P Voyi of Ndumiso Voyi Inc. Attorneys
[1]
National Union of
Mineworkers v Black Mountain - A Division of Anglo Operations Ltd
(2007) 28 ILJ 2796 (LC) at paragraph 12.