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[2019] ZALCJHB 221
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Lekganyane v Commission for Conciliation Mediation and Arbitration and Another (J1695/19) [2019] ZALCJHB 221 (13 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Of
interest to other Judges
CASE
NO: J1695/19
In the matter between:
DANIEL
KITIMI LEKGANYANE
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION First
Respondent
ROAD
ACCIDENT FUND
Second
Respondent
Heard:
12 August 2019
Judgment
delivered: 13 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to hold the CCMA in contempt of court and for
certain other ancillary
relief.
[2]
This court has issued a number of warnings regarding the filing of
urgent applications
in circumstances where aggrieved parties
(especially employees) seek to have their grievances resolved by the
court as a resort
of first instance. In this matter, the applicant in
effect seeks to have this court hold the CCMA in contempt of court in
circumstances
where he is aggrieved at the postponement of an
arbitration hearing.
[3]
The material facts are not in dispute. The applicant was employed by
the second respondent
(the RAF) on 1 July 2008. He was dismissed for
misconduct in November 2015. The applicant’s dismissal was
upheld by the CCMA
after an arbitration hearing. The applicant sought
to review and set aside the award. On 12 February 2019, in the
unopposed motion
court, this court (Gush J) reviewed and set aside
the award and ordered that the matter ‘be referred back to the
First Respondent
[the CCMA] to be arbitrated
de novo
before an
arbitrator other than the Second Respondent [the arbitrator]’.
[4]
The matter was duly remitted to the CCMA and enrolled for an
arbitration hearing on
23 April 2019. On that date, the proceedings
were postponed, by agreement between the parties, to 23 May 2019 on
the basis, it
would appear, that the RAF had filed an application to
rescind the order granted by this court on 12 February 2019. On 23
May 2019,
the second respondent in these proceedings sought a further
postponement. The presiding commissioner ordered that the matter be
stayed
sine die
pending the outcome of what he refers to as a
review application filed in this court and ordered the second
respondent to pay the
wasted costs of the day. (The reference ought
to have been to an application for rescission.) The application for
rescission was
filed in mid-June 2019 and remains pending. For
present purposes, it is not insignificant that the applicant in the
present proceedings
filed an answering affidavit in the rescission
application on 27 June 2019, and that he avers in that affidavit that
the CCMA has
‘allowed itself to be misled’ and that it
was in contempt of court for failing to execute the order granted on
12 February
2019. In other words, as far back as 27 June 2019, the
applicant had taken the view that the CCMA was in contempt of court.
The
matter was again enrolled for hearing on 18 July 2019, when the
presiding commissioner recorded that given that the outcome of the
rescission application remained outstanding, it was not open to him
to make a ruling that varied or set aside the ruling made on
23 May
2019 and that the arbitration hearing ‘cannot proceed at this
time’.
[5]
In his notice of motion, the applicant seeks an order in terms of
which the CCMA be
declared to be in contempt of this court for its
failure to abide by the order granted on 12 February 2019, and that
it be declared
that the application for rescission does not stay in
execution of the court order and that the order remains binding on
the CCMA.
[6]
The application is opposed by the RAF.
[7]
When the matter was called, I put certain difficulties to the
applicant’s counsel.
These included the urgency of the
application, the absence of any properly formulated allegation of
contempt on the part of the
CCMA in the founding affidavit, the
failure by the applicant to use the form required by clause 13 of the
practice manual, including
the failure by the applicant to join any
responsible person whom he alleges was aware of the court order and
failed to comply with
it.
[8]
It is sufficient to say that counsel was unable to offer any
submissions that dealt
with these shortcomings. A perusal of the
papers indicates that the applicant’s true complaint is against
the RAF, and not
the CCMA. He accuses the RAF of deliberately seeking
to delay the arbitration hearing by way of postponements of the
hearing. The
RAF denies this and has proffered an explanation for the
circumstances that gave rise to each postponement. Be that as it may,
if the applicant was aggrieved by the further postponement of the
arbitration hearing or by the ruling issued on 18 July 2019, he
was
at liberty to seek a review of the ruling in terms of s 158(1)(g) of
the LRA. I fail to appreciate how it can be said that
an arbitrator
acts in breach of an order by this court to the effect that a matter
be remitted and heard
de novo
when he or she postpones the
de
novo
hearing on the basis that a respondent party intends to or
has filed an application to rescind that order. In the present
instance,
the fact remains that the matter was remitted to the CCMA
for a rehearing, that an arbitrator was appointed and that the
arbitration
proceedings remain pending. What the applicant avers, in
effect, is that a ruling by an arbitrator to postpone a hearing on an
account of an application pending in this court to rescind an order
remitting a dispute for rehearing, is an act of contempt. That
proposition only has to be stated to demonstrate its manifest
absurdity. In any event, the applicant’s papers make no case
for any breach of the order on the part of the CCMA or any
commissioner, let alone any allegation of wilful and
mala fide
non-compliance. Insofar as the form of the application is concerned,
counsel could offer no explanation for the applicant’s
failure
to utilise the format prescribed by the practice manual for contempt
applications.
[9]
Notwithstanding these difficulties, the applicant has failed to
establish that the
application is urgent. In the founding affidavit,
he avers that the application is brought on an urgent basis since
there is no
alternative remedy, that he continues to suffer
irreparable harm, and that the balance of convenience is in his
favour. These,
of course, are requirements that relate to
interdictory relief, and the applicant appears to have confused them
with the discrete
requirement that urgency be established. Be that as
it may, the applicant suffers no irreparable harm, since his matter
remains
pending before the CCMA. Insofar as the applicant submits
that he has no alternative remedy, as I have indicated above, if his
real complaint relates to the merits of the arbitrator’s
ruling, it remained open to him to seek to review that ruling. In
short, the application is not urgent and it stands to be struck from
the roll for that reason.
[10] I
reserved judgment for a day to prepare this judgment and to record,
once again, that abuse
of the urgent court remains rife, and that
practitioners who continue to clog the courts roll with misguided
applications such
as the present must expect that orders for costs
will be made. In terms of s 162 of the LRA, this court has a broad
discretion
to make orders for costs according to the requirements of
the law and fairness. While the court is often reluctant to make
orders
for costs against individuals who feel genuinely aggrieved by
the conduct of their employers, I fail to appreciate how the
applicant,
who is legally trained and who has completed his articles
of clerkship, could view the present application as anything but
misguided.
The RAF, against whom no direct relief was sought but who
was cast in the papers as the villain of the piece (to the extent
that
the applicant sought an alternative to have the RAF declared a
vexatious litigant on account of its ‘dishonesty in litigating
this matter’), was obliged to instruct its attorney to oppose
these proceedings. The RAF’s attorney was obliged to
spend a
long weekend taking instructions and preparing an answering affidavit
in circumstances where the RAF’s attorney had
been led to
believe that the matter had been settled. It was only on 9 August
2019, a public holiday before the scheduled hearing
date, that the
applicant introduced a new demand into negotiations being conducted
by the parties’ respective attorneys.
In these circumstances, I
fail to appreciate why the RAF, a statutory body funded effectively
by the taxpayer, should have to bear
the costs of opposing these
proceedings. Mr. Ramdaw, who appeared for the RAF, urged me to grant
costs on a punitive scale. I agree
that there is no merit whatsoever
in the application, and that it falls into the category of the
frivolous and vexatious. In those
circumstances, it appears to me
that the interests of the law and fairness are best satisfied by an
order for costs on a punitive
scale.
I make the following order:
1.
The application is struck from the roll for
lack of urgency, with costs, such costs to be paid on the scale as
between attorney
and client.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. M.J Matlhanya instructed by Thuketana Attorneys
For the respondent: Mr. A R Ramdaw,
Ramdaw and Associates Inc.