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[2019] ZALCJHB 223
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South African Broadcasting Corporation (SOC) Limited and Others v Mkhize and Another (J1726/19) [2019] ZALCJHB 223; (2019) 40 ILJ 2845 (LC) (16 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE
NO: J1726/19
In the matter between:
SOUTH AFRICAN BROADCASTING
CORPORATION(SOC)
LIMITED
First
Applicant
MADODA
MXAKWE
Second Applicant
MANUEL DE
OLIVIERA
Third
Applicant
SANDILE
JULY
Fourth Applicant
YOLANDE VAN BILJON
Fifth
Applicant
and
AYANDA MKHIZE
First
Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second
Respondent
Heard:
15 August 2019
Judgment
delivered: 16 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
On 17 October 2018, the first respondent was dismissed by the first
applicant on the
grounds of misconduct. She has disputed the fairness
of her dismissal and an arbitration hearing in the CCMA has been set
down
for 21 August 2019. On 5 August 2019, the senior convening
commissioner issued subpoenas in terms of s 142 of the Labour
Relations
Act (LRA) requiring the second, third, fourth and fifth
applicants to attend at the arbitration hearing before questioning
and
to produce any book, document visual footage or object. In this
application, the applicants seek to have the subpoenas set aside
[2]
The issuing of the subpoenas was preceded by the filing of written
motivations in
terms of the rule 37 of the rules of conduct of
proceedings before the CCMA. For present purposes, it is not
necessary for me to
traverse the content or merits of the written
motivations save to record that the senior convening commissioner was
obviously persuaded
that he should exercise his discretion in favour
of issuing the subpoenas sought.
[3]
The applicant avers that the subpoenas are an abuse of process and
therefore irregular
and invalid. In essence, in each instance, the
applicants submit that there would be no purpose in questioning them
at the arbitration
proceedings. They further submit that the second
and fifth applicants occupy very senior positions within the first
applicant’s
managerial structure and that it would be highly
prejudicial to these applicants for them to spend two days at the
CCMA under subpoena.
[4]
When the application was called, I enquired of the applicant’s
counsel as to
the basis on which the application was brought, since
this was not apparent from the papers. My attention was drawn to the
provisions
of s 158 of the LRA which, amongst other things, empowers
this court to make various appropriate orders, including declaratory
orders and orders directing the performance of any particular act.
Section 158 (with the possible exception of s 158 (1)(h)) confers
powers on this court; it does not confer jurisdiction. Jurisdiction
remains regulated by s157, which provides in subsection (1),
in broad
terms, that this court has exclusive jurisdiction in respect of all
matters that elsewhere in terms of the LRA or any
other law, are to
be determined by this court. In other words, in any proceeding before
this court which in terms of s 151 has
inherent powers only in
relation to matters under its jurisdiction, it is necessary for an
applicant to identify a provision of
the LRA (or any other law) that
confers jurisdiction of the court to entertain the proceeding.
[5]
There is no provision in the LRA (or in any other law) that confers a
general jurisdiction
on this court to supervise the manner in which
the CCMA and exercises its statutory powers. The scope of this
court’s intervention
is both defined and limited by the LRA and
entitles this court to intervene, for example, by way of review under
s 145 and s 158
(1) (g).
[6]
Section 142, which regulates the powers of commissioners when
attempting to resolve
disputes and which provide for the power of
subpoena, contains a number of requirements that attach to the
issuing of a subpoena.
For example, a subpoena must be signed by the
director or his or her nominee, and particular constraints apply to
any authorisation
to enter and inspect premises on which any book,
document or object relevant to the resolution of a dispute is to be
found. Rule
37 of the rules for the conduct of proceedings before the
CCMA establishes the procedure by which a subpoena must be issued and
served and, amongst other things, prescribes the times within which
an application to have a subpoena issued must be made, and
the form
of that application. The rule further establishes grounds on which
the CCMA is entitled to refuse to issue a subpoena.
[7]
In the present proceedings, it is not in dispute that all of the
procedural requirements
of both the LRA and CCMA rule 37 have been
met. The only basis on which the issuing of the subpoenas has been
attacked is that
they are an abuse of process.
[8]
In the absence of any statutory basis on which this court is entitled
to intervene
and determine whether the issuing of a subpoena is an
abuse of process, it seems to me that the application stands to be
dismissed.
The point goes beyond the technical – if this court
is to intervene in circumstances such as the present, the legal basis
of that intervention must be clear. The director of the CCMA or his
or her nominee who receives a written motivation for the issuing
of a
subpoena must necessarily satisfy him or herself that the necessary
procedural requirements have been met, and that a proper
case has
been made out. This would ordinarily require a close scrutiny of the
motivation and a consideration of any potential for
abuse of process.
(For a consideration of this issue in the context of the issuing of a
subpoena
duces tecum
, see
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA
721
(SCA).) If this court were to exercise some ill-defined and broad
power of supervision over the exercise of the director’s
discretion, the immediate question is the basis on which the court
might be entitled to intervene. For example, would the court
be
entitled to intervene because it would have come to a different
conclusion on the same facts? That would amount to an appeal
against
a decision made by the director, a remedy that is not contemplated by
the LRA. On the other hand, there could be no bar
against an
aggrieved party seeking to review such a decision in terms of s 158
(1) (g). The parameters of intervention in this
instance are clearly
demarcated – the court is empowered to intervene if the
decision is not one to which a reasonable decision-maker
could come
on the available material, or if the director misconceived the nature
of the enquiry. A so-called legality review
and a common law
review may also be available to any applicant in a s 158(1)(g) review
but again, in each case, the scope of intervention
is relatively
clearly defined. Insofar as counsel submitted that the remedy
of review would be overly time-consuming, there
is no reason why a
review could not be sought on an expedited or urgent basis. Indeed,
most urgent applications filed in this court
seek to dispense with
the forms and service provided for in the rules of this court and
there is no reason why that would not extend
to the provisions of
Rule 7A (8) which regulates review applications.
[9]
Insofar as counsel submitted that a refusal by this court to
intervene would have
the consequence that dismissed employees could
simply have subpoenas issued as an element of a strategy of
harassment in the course
of arbitration proceedings, that submission
overlooks the fact that the director is required in terms of s 142 to
consider the
written motivation in support of any application for the
issuing of a subpoena and to make a decision that is rational and
reasonable
having regard to the material disclosed in the motivation.
Where the decision is devoid of rationality and reasonableness, as I
have indicated, an aggrieved party has the remedy of review. Further,
it seems to me that any abuse of s 142 is a matter that can
be taken
up directly with the presiding commissioner either prior to or during
the commencement of any arbitration hearing in respect
of which a
subpoena has been issued. Any abuse of process that the applicants
complain about is an abuse of the arbitration process,
not process in
this court. The arbitrator presides at the arbitration hearing,
and must manage and control that process.
It seems to me that an
arbitrator’s statutory powers are sufficiently broad to deal
with any abuse of the arbitration process
in the form of a party
initiating the issuing of subpoenas either irregularly or without
proper cause, or where it becomes clear
at the commencement of or
during the process that a party has abused s 142 and sought to have
subpoenas issued as nothing more
than a tactic or strategy to place
undue pressure on the other party. In extreme cases, such abuse may
even amount to contempt
of the Commission and liable to be sanctioned
as such. Further, it remains open to a person who has been subpoenaed
to attend a
hearing to seek direction from the arbitrator as to the
basis on which that party should hold him or herself available. The
issuing
of a subpoena is an interlocutory matter, and the presiding
arbitrator would be entirely within his or her rights to vary the
terms
on which the subpoena was issued, having regard to the
exigencies of each case.
[10]
Finally, counsel for the applicants urged me to have regard to the
fact that similar applications
have previously been granted by this
court. It is not clear to me from the judgments to which I was
referred that the applications
concerned did not disclose some legal
basis for intervention. In any event, the fact that the same or
similar orders have previously
been granted is not in itself a basis
on which to assume jurisdiction where I am persuaded, in the present
instance at least, that
there is none.
[11] In
short, an applicant seeking to set aside a ruling or decision made by
a CCMA commissioner
or other member of staff must necessarily
articulate a proper legal basis to do so. There is no general
supervisory authority that
vests in this court that entitles the
court to intervene in decision-making in the CCMA and in particular,
absent a review, in
relation to a decision to issue a subpoena in
terms of s 142. It follows that the present application stands to be
dismissed.
[12] In
relation to costs, the court has a broad discretion to make orders
for costs according to
the requirements of the law and fairness. In
the present instance, I fail to appreciate why the first respondent
should be denied
the costs that she has incurred in opposing the
application.
I
make the following order:
1.
The application is dismissed, with costs.
André van Niekerk
Judge
Appearances:
For
the Applicants: Adv M Van As,instructed by Werksmans Attorneys
For
the Respondent: Adv T Moretlwe,instructed by Motlatsi Seleke
Attorneys