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[2018] ZALCJHB 384
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Libra Productions CC v Commission for Conciliation, Mediation and Arbitration and Others (JR2465/12) [2018] ZALCJHB 384 (12 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
case
no:
JR
2465/12
In
the matter between:
LIBRA
PRODUCTIONS
CC
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
MABEL SIKITI N. O
Second Respondent
KLO
obo PIKIWE W
MKANSI
Third Respondent
Heard
:
10 October 2018
Delivered
:
12 October 2018
Summary:
Review of a ruling refusing postponement – since the
granting or refusal of a postponement involves an exercise of
discretion,
interference is limited. The test remains that of whether
the decision to refuse or grant postponement falls within the bounds
of reasonableness. Held: (1) The application for review is dismissed
with no order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
The applicant is seeking to review and set aside a ruling made by the
second respondent in refusing to postpone the arbitration
proceedings
scheduled for a hearing. The basis of the review is that the second
respondent ought to have granted a postponement
application, which
was predicated on the absence of the main witness. The application is
opposed by the third respondent. Before
the review application could
be heard, Mr Mkansi (Mkansi), the individual employee, dismissed his
Union representative. He, there
and then, launched an application for
the postponement of the application.
[2]
The grounds for the application for postponement being that his newly
appointed legal representative asked him to seek a postponement
to
enable him to source the necessary funds for representation. I pause
here to mention that, an attorney once approached by a
party would
either take or refuse an instruction. Once an instruction is
accepted, the attorney must carry out his or her mandate.
It is
inappropriate for an attorney to still require his or her client to
make an appearance and move a postponement application
in order to
enable finalisation of the fees issue. In such instances, the
attorney has not accepted a mandate. Therefore, seeking
a
postponement on the basis that a fee arrangement is still to be
finalised is not a good enough reason to postpone a matter. For
these
reasons, I refused an application to postpone the review application.
Background
facts
[3]
Mkansi was employed as a Team Leader effective from September 2010.
Mkansi was arraigned before a disciplinary hearing to respond
to
seven allegations of misconduct. Two of the allegations were
withdrawn at the internal enquiry. He was found guilty of four
of the
allegations. In respect of the one charge, he was found not guilty.
At the disciplinary hearing, the applicant presented
evidence of
three witnesses, namely Thapelo Mmutle, Sam Motebo and Thomas Gibson.
Following a guilty finding in respect of the
four charges, Mkansi was
dismissed.
[4]
Aggrieved by his dismissal, Mkansi, with the assistance of his Union
referred a dispute alleging unfair dismissal. The dispute
was
enrolled for arbitration on 14 June 2014. On this day, an application
for postponement was sought and granted. The dispute
was enrolled for
arbitration yet again on 20 July 2012. Approximately four days before
the sitting, the applicant launched another
application for the
postponement of the arbitration hearing. The reason for the
postponement was presented thus:
‘
Mr Mmutle informed
Mr Du Preez that he would (be) willing (to) testify at the CCMA but
unfortunately cannot attend the proceedings
on Friday 20 July 2012 at
12H00 since
he needs to attend induction in Cape Town with his
current employer
. Please see attached hereto Mr Mmutle’s
letter Annexure C stating that he will be out of town.’
[5]
Prior thereto, Mmutle was served with a
subpoena
to appear and
had signed an agreement to make an appearance. After considering the
reasons for the postponement application, the
second respondent made
a ruling refusing postponement. Faced with such a ruling, the
applicant opted to not present any evidence
but to only cross-examine
Mkansi.
[6]
On 27 July 2012, the second respondent issued an award in favour of
Mkansi. Aggrieved by the award, the applicant chose to apply
for a
rescission as opposed to a review. On or about 28 September 2012, the
rescission application was refused.
[7]
On or about 30 November 2012, the present review application was
launched together with a condonation application owing to the
fact
that the prescribed six weeks’ period had lapsed. Both the
application for condonation and for review were opposed by
Mkansi.
The
basis of the condonation application.
[8]
The application is launched four weeks outside the prescribed period.
The applicant alleges that on the basis of an advice from
Mr Bothma,
it chose the rescission route as opposed to a review route. It only
realised that it chose a wrong route after the rescission
ruling. In
October 2012, the applicant took legal advice and launched the
present application after collation of the relevant documents.
T
he
grounds for review
[9]
The applicant contends that the second respondent committed a
reviewable irregularity by failing to apply the appropriate test
for
postponements. The second respondent failed to exercise her
discretion in a judicial manner. In short, the second respondent
acted unreasonably by refusing postponement of the arbitration due to
the absence of a witness, Mr Mmutle.
Evaluation
[10]
For
condonation to be granted, a party seeking it must show a good cause.
Absent good cause, condonation must be refused. In determining
whether good cause has been shown, amongst others, a court must be
satisfied that a reasonable and an acceptable explanation has
been
offered. The explanation provided in
casu
is that of acting on a wrong advice. This can never be a reasonable
and acceptable explanation. The Labour Appeal Court in
Edcon
Ltd v Steenkamp and others
[1]
,
concluded that the explanation that a failed legal choice of strategy
is the reason why a delay occurred to exercise a legal option
is not
an acceptable explanation.
[2]
[11]
Accordingly, I conclude that the applicant
did not provide an acceptable explanation thus the condonation
application must fail.
Therefore, the review application ought to be
dismissed for want of jurisdiction.
[12]
However,
even if I am wrong above, I firmly believe that the review
application lacks merits nonetheless. The test for review is
whether
the decision is one that a reasonable decision maker may not arrive
at.
[3]
It is unclear to me why
the applicant was unable to proceed with arbitration due to the
absence of one witness. At the disciplinary
hearing, the applicant
managed to secure a guilty finding on four charges by presenting the
evidence of three witnesses. There
is no indication whether the other
two witnesses mentioned earlier in this judgment were also
unavailable. It does not assist the
applicant to dub Mmutle as the
main witness. I do not understand why he is being dubbed as ‘the
main witness’. At the
very best he was an unavailable witness.
[13]
I cannot fault the reasoning of the second
respondent. He was dissatisfied with the explanation of Mmutle’s
unavailability.
Mmutle sought to prioritize an induction course over
the arbitration process. It was inappropriate for Mr Du Preez to have
entertained
a witness subpoenaed by a commissioner. Failure to adhere
to a
subpoena
is an offence.
[14]
Mr
Jacobsz, appearing for the applicant, placed heavy reliance on the
decision of my brother Molahlehi J in
Nestle
SA (Pty) Ltd v CCMA and others
[4]
.
I am of the view that the decision is distinguishable from the
present matter. In that matter,
Nestle
had two reasons for the postponement. Firstly, it was under the
impression that the dispute would be referred to private arbitration.
Secondly, all of its witnesses were unavailable, two having gone
overseas and the one no longer in their employ, probably untraceable.
My brother was persuaded by the fact that the arbitration was set
down for one day and the request for postponement was the first
one.
In
casu
,
the request was for the second time and for the same reason. For the
above reasons I am not prepared to follow my brother.
[15]
I
take a view that the test to be applied in applications of this
nature is the one mentioned in
Carephone
(Pty) Ltd v Marcus N.O and others
[5]
.
The
Court stated the following, which in my view, is still good law to
this day.
[55]
There are at least three reasons why the approach 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
(s138 (1)). Secondly, it must be done with ‘
the
minimum of legal formalities’
…
And thirdly, the possibility of making costs orders to counter
prejudice in good faith postponements applications is severely
restricted…
[57]
…It is a review of a decision of a tribunal where the
statutory requirements for its functioning are less congenial
to the
granting of postponements than is the case in a court of law. The
commissioner rejected as inadequate the reasons given
for the need to
postpone…There was sufficient material before him to come to
that conclusion rationally and objectively…His
decision and
the reasons he gave for it do not support an inference of misconduct,
irregularity or impropriety. The decision not
to postpone and to
continue the proceedings are rationally justifiable in terms of the
reasons given for the decision by the commissioner.
[16]
It
is clear from this judgment that as a court of review, I must
consider the reasons given for the refusal and establish whether
that
decision was rationally justifiable. Effectively, it is the same test
as expounded in
Sidumo
v Rustenburg Platinum Mines Ltd and Others
[6]
.
The second respondent gave the following reasons:
[10]
…The witnesses’ (sic) message was not convincing, no
supporting documents and even not dated for that matter.
The argument
by the respondent’s representative that the witness was in
contempt is noted,
however,
that did not prevent the respondent and its other witnesses from
attending the hearing…
[My
own underlining and emphasis]
[17]
The
above reasoning is justifiable given the material placed before her.
I bear in mind that granting or refusal of a postponement
involves an
exercise of discretion. Interference is thus limited.
[7]
The decision is not one that a decision maker may not arrive at given
the same material placed before the second respondent. It
is not one
that a reasonable decision could not have made. It falls within the
bounds of reasonableness. As pointed out earlier,
the applicant had
other witnesses who had testified at the internal hearing. There was
no indication why such witnesses were not
called to justify a
dismissal. As an example: Charge 2 made reference to one Cindy Van
Rooyen and Ruan Cloete, who allegedly instructed
the third
respondent. I enquired from Mr Jacobsz as to whether Mmutle was the
only witness to have justified the dismissal by proving
the
allegations? He was unable to confirm whether such was the case. It
must follow axiomatically that in refusing the postponement,
the
second respondent did not commit any irregularity. The application
must thus fail.
[18]
Accordingly, I conclude that the applications
should fail.
[19]
In the result, I make the following order:
Order
1.
The
condonation application is refused;
2.
The
review application is dismissed for want of jurisdiction,
alternatively, on its merits;
3.
There
is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate A Jacobsz
Instructed by: Barnard
Inc, Centurion.
For
the Third Respondent: In Person.
[1]
[2018] 3 BLLR 230 (LAC).
[2]
Paragraph 46.3 of the judgment. See also Parkinson v Edcon [2016]
ZALCJHB 540 (28 June 2016) and Ramyidal v Clinix Selby Park
Hospital
(Pty) Ltd [2016] ZALCJHB (17 June 2016).
[3]
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT
85/06)
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC)
; (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) (5 October 2007).
[4]
[2008] ZALC 32
(22 March 2008)
[5]
[1998] 19 ILJ 1425 (LAC)
[6]
[2007] 12 BLLR 1097 (CC).
[7]
See Kemp t/a Centralmed v Rawlings [2009] 30 ILJ 2677 (LAC) and the
authorities cited therein