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[2019] ZALCJHB 324
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July v Commission for Conciliation Mediation and Arbitration and Others (J2344/19) [2019] ZALCJHB 324 (21 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J 2344/19
In the matter between:
SANDILE
JULY
Applicant
And
THE COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
SENIOR COMMISSIONER SHAWN
CHRISTIANSEN
NO
Second Respondent
AYANDA
MKHIZE
Third Respondent
Heard: 17 October 20
Order made: 18 October 2019
Reasons
delivered: 21 October 2019
JUDGMENT
VAN
NIEKERK J
[1]
On 18 October 2019, I issued an order in dismissing the present
application, with
costs. These are my brief reasons for that order.
[2]
The applicant applied, as a matter of urgency, to review and set
aside a decision
by the second respondent (the commissioner) on 4
October 2019 to issue a subpoena, requiring the applicant to appear
before the
first respondent (the CCMA) at an arbitration hearing on
22 October 2019. The applicant is the attorney of record for the
SABC,
the respondent party in the arbitration hearing.
[3]
The background facts can be gleaned from the judgment delivered in J
2055/19 on 18
October 2019. The present matter was argued
simultaneously with that application, but the cases raise distinctly
different issues.
[4]
The applicant appears to frame his cause of action in the present
instance as a review.
In paragraph 16 of the founding affidavit, he
refers to a judgment delivered by this court on 16 August 2019 in a
dispute concerning
the same parties, when the court dismissed an
application to set aside a prior subpoena issued on the same basis,
on the grounds
that no cause of action had been disclosed. The court
noted that in the absence of any general empowering provision in
terms of
which this court could intervene in routine decision-making
relating to CCMA proceedings, it was incumbent on an applicant
clearly
to identify a provision of the LRA (or other legislation)
conferring jurisdiction on this court to determine the matter. In
paragraph
8 of the judgment, the court referred to the prospect of
review, whether by way of the common law, or a so-called ‘legality’
review, which the court is entitled to entertain in terms of s 158
(1) (g) of the LRA. An application for leave to appeal against
the
judgment was filed, and subsequently withdrawn.
[5]
Despite the reference in the founding affidavit to paragraph 8 of the
judgment, it
is not clear to me that the present application is
framed as an application for review, or that the applicant has
properly invoked
the provisions of Rule 7A. Section 158 (1) (g)
contemplates a review ‘on any grounds permissible in law.’
There are,
of course, a number of possible grounds for review,
including a review in terms of PAJA and as I have mentioned, a
legality review
and a review at common law. All of these forms of
review have their own requirements and thresholds for intervention,
and it follows
that an applicant in a matter such as the present must
properly identify the basis for review, and make out a case
accordingly.
[6]
In the present instance, the applicant does not identify the form of
the review that
he seeks to pursue, nor does he disclose any grounds
for review other than the sweeping statement made in the founding
affidavit
to which I have referred. The applicant appears to rely on
the contention that it is apparent from the written motivation filed
in support of the issuing of the subpoena that he is to be questioned
regarding certain admissions that he is alleged to have made
during
the course of the third respondent’s disciplinary hearing. The
applicant denies having made these admissions, and
states that he did
no more than make submissions on behalf of the SABC. He states
further that these appear from the transcript
of the hearing, and
that the transcript is not contested. Finally, the applicant avers
that he is protected by professional privilege.
On this basis, the
applicant concludes that the decision to issue the subpoena was
irrational and unreasonable, and thus irregular.
[7]
The applicant seeks a final order. It is incumbent on him therefore
to establish a
clear right to the relief that he seeks. There is no
dispute that the subpoena was issued in accordance with the
procedural requirements
established by s 142 of the LRA. The only
basis on which the decision to issue the subpoena is attacked is that
it amounts to an
abuse of process. The rules of the CCMA require that
a party seeking to have a subpoena issued by the CCMA must file a
written
motivation setting out why the evidence of the person to be
subpoenaed is necessary. A request to issue a subpoena may be refused
if, amongst other things, the applicant party does not establish why
the evidence of the person sought to be subpoenaed is necessary.
[8]
I am not satisfied that the applicant has established that the
decision to issue the
subpoena is reviewable. First, in the absence
of any clear basis on which the review is sought, in my view, the
application stands
to be dismissed solely on that account. There is
no proper case for review made out on the papers. Even if I were to
attach some
significance to the single sweeping statement in the
founding affidavit that the decision to issue the subpoena was
irrational
and unreasonable, the applicant has failed to establish a
case to this effect. It does not follow that the applicant’s
status
as the attorney of record for the SABC has the consequence
that any evidence that he will be required to give will be the
subject
of privilege. That is a call that the presiding commissioner
must make, after proper objection to any question put to the
applicant,
in the arbitration proceeding. In so far as the applicant
relies on the admission of the correctness of the transcript of the
disciplinary
hearing, the same principle applies. The third
respondent may well have valid questions to put to the applicant
regarding what
he says are the submissions he made during the
hearing, and what the third responded contends are admissions of fact
that were
made. Again, this is a matter best determined by the
presiding commissioner, and not be pre-empted by this court. Of
course, there
will be those cases where parties seek to have
subpoenas issues as a form of harassment, intimidation and abuse, and
the court
should not hesitate to intervene by way of review where the
CCMA fails in its duty to protect the integrity of its own process.
But this is not one of those cases. To the extent that the applicant
relies on personal inconvenience as a basis on which he contends
that
the subpoena should be set aside. This is a matter best taken up with
the presiding commissioner. A witness attending proceedings
under
subpoena may always seek to be released until the point in the
proceedings where he or she is likely to testify. Commissioners
are
granted a great deal of flexibility in how arbitration are to be
conducted.
[9]
In short: it cannot be said that the decision to issue the subpoena,
having regard
to the written motivation that served before
commissioner, was devoid of rationality and reasonableness. The
review application
thus stands to fail.
[10]
Finally, in relation to costs, there is no reason why costs ought not
to follow the result. The
threshold of review is deliberately
set high, and discourages intervention by this court in routine
decision-making by commissioners.
Applications such as the present
are to be discouraged.
[11]
For these reasons, I dismissed the application with costs.
André van Niekerk
Judge
APPEARANCES
For
the applicant: Adv. M van As, instructed by Werksmans Inc.
For the third respondent: Adv. M Kufa,
instructed by Motlatsi Seleke Attorneys