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[2020] ZALCJHB 184
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National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 904/17) [2020] ZALCJHB 184 (13 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 904/17
NATIONAL UNION OF
MINEWORKERS
First Applicant
MACHABA
MARSHALL
Second Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
First Respondent
LAMEESAH JOOMA
N.O
Second
Respondent
SIBANYE GOLD
LIMITED
Third Respondent
CCMA GOVERNING
BODY
Fourth
Respondent
Enrolled:
7 May 2020
Delivered:
13 May 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date and time for
hand-down is deemed to be 09h45 on 13 May 2020.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The
Applicants filed an application in terms of sections 145 and
158(1)(g) of the Labour Relations Act
[1]
(LRA) and the relief sought is for the review and setting aside of an
arbitration award, to review the performance of the First
Respondent,
the Commission for Conciliation, Mediation and Arbitration (CCMA) of
any function provided for in the LRA on any grounds
permissible in
law and for an order to direct the Fourth Respondent (CCMA Governing
Body) to remove the Second Respondent (the
arbitrator) as a
commissioner in accordance with section 117(7) of the LRA.
[2]
I will deal with the relief sought in turn.
[3]
The matter was enrolled for hearing on 7
May 2020. In accordance with the provisions of the ‘Urgent
directive in respect of
access to the Labour Court’ dated 28
April 2020, which is applicable with effect from 4 May 2020 until the
end of the July
2020 recess, the parties agreed that this matter be
disposed of without oral argument. I have considered the papers filed
as well
as the written heads of argument submitted.
The review application
in terms of section 145 of the LRA
[4]
The Applicants seek
to review and set aside an arbitration award issued on 30 March 2017
under case number GAJB 16761-16. The Applicants
filed a supplementary
affidavit which is titled “
supplementary
cum condonation affidavit”
.
There is no notice of motion filed wherein relief related to
condonation is sought, but it is apparent from the “
supplementary
cum condonation affidavit
”
that the Applicants seek condonation for the late filing of the
transcribed record of the arbitration proceedings.
[5]
This application is opposed by the Third
Respondent (Sibanye).
[6]
On 30 March 2017, the
arbitrator issued an arbitration award wherein she found the Second
Applicant’s dismissal to be substantively
fair.
[7]
On 11 May 2017, the
Applicants filed a review application, seeking the review and setting
aside of the said arbitration award.
[8]
The notice in terms
of Rule 7A(3) of the Labour Court Rules was served on the Applicants
on 17 May 2017.
[9]
The Applicants
uplifted the record of the arbitration proceedings from the Labour
Court on 21June 2017.
[10]
On
29 March 2018, Sibanye’s attorneys addressed a letter to the
Registrar of this Court and to Mr Zwane of the National Union
of
Mineworkers (NUM), to request the Registrar to archive the file as
there was no compliance with the time periods provided for
in the
Practice Manual of the Labour Court.
[2]
[11]
Subsequent to
Sibanye’s request to have the file archived, the Applicants
filed the transcribed record of the arbitration
proceedings on 10
April 2018.
[12]
On 11 April 2018, the
Applicants filed the supplementary affidavit seeking condonation for
the late filing of the record. Sibanye
opposed the application and in
its answering affidavit, it raised the fact that due to the
non-compliance with the provisions of
the Practice Manual, the review
application is deemed to be withdrawn.
Analysis
Filing of the
record
[13]
Rule 7A(6) of the Labour Court Rules
provides that the applicant in a review application must furnish the
Registrar and each of
the other parties with a copy of the record or
portion of the record, as the case may be. The applicant must make
available copies
of such portions of the record as may be necessary
for the purposes of the review.
[14]
The serving and filing of the record in a
review application is provided for in clause 11.2 of the Practice
Manual as follows:
“
11.2.1
Once the registrar has notified an applicant in terms of Rule 7A (5)
that a record has been received and may be uplifted,
the applicant
must collect the record within seven days.
11.2.2 For the purposes
of Rule 7A (6), records must be filed within 60 days of the date on
which the applicant is advised by the
registrar that the record has
been received.
11.2.3 If the applicant
fails to file a record within the prescribed period, the applicant
will be deemed to have withdrawn the
application, unless the
applicant has during that period requested the respondent’s
consent for an extension of time and
consent has been given. If
consent is refused, the applicant may, on notice of motion supported
by affidavit, apply to the Judge
President in chambers for an
extension of time. The application must be accompanied by proof of
service on all other parties, and
answering and replying affidavits
may be filed within the time limits prescribed by Rule 7. The Judge
President will then allocate
the file to a judge for a ruling, to be
made in chambers, on any extension of time that the respondent should
be afforded to file
the record.”
[15]
This
Court and the Labour Appeal Court (LAC) have considered the status of
the Practice Manual
[3]
and held
that
in
essence, the Manual promotes uniformity and consistency in practice
and procedure and sets guidelines on standards of conduct
expected of
those who practise and litigate in the Labour Court and it promotes
the statutory imperative of expeditious dispute
resolution. The
provisions of the Practice Manual are binding and should be adhered
to and it is not to be complied with or ignored
by parties at their
convenience or discretion.
[16]
Clauses 11.2.1 and 11.2.2 provide for the
time frame within which the record should be filed and clause 11.2.3
sets out the steps
to be followed and the consequences should an
applicant fail to file the transcribed record within the prescribed
period.
[17]
A proper interpretation of clause 11.2.3
shows that there are three possibilities if the record is not filed
within 60 days of the
date on which the applicant is advised by the
Registrar that the record has been received. The first possibility is
the easy and
obvious one namely for the applicant to request the
respondent’s consent for an extension of time and consent has
been given.
[18]
The second possible scenario arises only in
the event that
consent was sought from the
respondent but is refused. In such an event, the applicant may, by
way of a notice of motion supported
by affidavit, apply to the Judge
President for an extension of time. The application must comply with
Rule 7 and affidavits are
be filed within the time limits prescribed
by Rule 7.
[19]
The third possible scenario arises when the
applicant in a review application failed to file the record within
the prescribed 60-days
period and failed to obtain the respondent’s
or the Court’s consent for the extension of time. In such a
case, the
review application is deemed to be withdrawn.
[20]
In casu,
a
notice in terms of Rule 7A(3) of the LRA was served on the Applicants
on 17 May 2017 and the record had to be filed within 60
days thereof,
thus by no later than 11 August 2017. The Applicants did not file the
record within the prescribed 60-day period
and they had not
approached the Respondents for consent for an extension of time, nor
did they approach the Judge President. Absent
any action taken to
seek an extension, it follows that the review application is deemed
to be withdrawn.
[21]
In
Ralo
v Transnet Port Terminals and others
[4]
(Ralo)
the Court accepted the legal definition of ‘deemed’ as
set out in the Namibian authority of
Municipal
Council of the Municipality of Windhoek v Marianna Esau
[5]
where
the Court held that the word ‘deemed’ is considered to
have a conclusive effect
[6]
.
This Court concluded by stating the following:
“…
The
plain and unambiguous wording of the practice manual is to the effect
that the applicant must be regarded as having withdrawn
the review
application”
[22]
In casu,
the
same fate meets the Applicants and the status of the review
application is ‘withdrawn’.
Relief sought by
the Applicants
[23]
There is a distinction to be drawn between
the provisions of Clauses 11.2.1 -11.2.3 of the Practice Manual,
which provide that a
review application is deemed to be withdrawn
when the record was filed outside the prescribed period and Clause 16
which provides
for the archiving of files.
[24]
Clause 16 provides that the Registrar will
archive a file in the case of a review application when a period of
six months has elapsed
without any steps been taken by the applicant
from the date of filing the application or the date of the last
process filed. Clause
16.2 provides that a party whose file had been
archived, may submit an application, on affidavit and on notice to
all the other
parties to the dispute, for the retrieval of the file.
[25]
In casu,
the
Applicants’ file was not archived by the Registrar, but is
deemed to be withdrawn by operation of the provisions of the
Practice
Manual.
[26]
There is no bar,
either in the Rule of this Court or the Practice Manual to the
Applicants filing an application to have the review
application
reinstated in the event it was deemed to be withdrawn. Logic dictates
that the review should be reinstated and be alive
before the late
filing of the record could be condoned.
[27]
The Applicants ought to have filed an
application to have the review application reinstated, which they
failed to do and instead
they sought condonation for the late filing
of a record without an application to reinstate the review
application. Condonation
for the late filing of a record cannot be
granted in respect of a review application that is deemed to be
withdrawn.
[28]
The Applicants’ review application is
deemed to be withdrawn and as a result no relief can be granted in
respect of a withdrawn
application.
The
review application in terms of section 158(1)(g) of the LRA
[29]
The Applicants also seek to review the
performance of the CCMA of any function provided for in the LRA and
on any grounds permissible
in law. The Applicants seek an order to
direct the CCMA Governing Body to remove the arbitrator as a
commissioner in accordance
with section 117(7) of the LRA.
[30]
This application is opposed by the CCMA,
the CCMA Governing Body and the arbitrator.
Analysis
[31]
The application calls for a closer
consideration of the provisions of section 158(1)(g) of the LRA.
[32]
In
Valuline
CC and Others v Minister of Labour and Others
[7]
the
powers of the Labour Court to review, as per section 158(1)(g) of the
LRA, was considered and it was explained as follows:
‘
The
proper construction of section 158(1)(g) is that if the Labour Court
has jurisdiction in respect of the subject matter of the
litigation
(specifically relating to any function provided for in the LRA as
contemplated in section 158(1)(g)), that it will then
have the power
to grant the remedy of review in respect of such subject matter.’
[33]
Section
158(1)(g) of the LRA empowers this Court to review the performance of
any function provided for in the LRA on any grounds
permissible in
law. What permissible grounds for purposes of section 158(1)(g) are
have been defined and accepted as a review based
on section 6 of the
Promotion of Administration of Justice Act
[8]
(PAJA), a review based on the principles of legality or common law
grounds
[9]
.
[34]
In short, for the Applicants to succeed
with this review application, they have to show firstly that the CCMA
has performed a function
provided for in the LRA and secondly they
have to make out a case for review on a ground permissible in law.
[35]
The Applicants’ case is that the
arbitrator should be removed as a commissioner because she does not
possess the required
qualifications and that her conduct is not that
of a person who is fit and proper to perform the functions required
by the LRA,
the Constitution and any other applicable law. The
Applicants are of the view that the arbitrator is not independent or
competent
and that she has to be removed as a commissioner in terms
of the provisions of section 117(7) of the LRA.
[36]
There are two material difficulties in the
Applicants’ case.
[37]
Firstly, the Applicant has to show that the
CCMA or its Governing Body has performed a function which could be
subjected to review.
[38]
Chapter VII of the LRA provides for dispute
resolution and sections 112 – 126 deal specifically with the
CCMA and
inter alia,
its
establishment and functions. Section 116 establishes the Governing
Body. Section 117 provides for the functions of the Governing
Body in
the appointment of commissioners, determining their remuneration,
allowances and terms and conditions of service and the
preparation of
a Code of Conduct for commissioners and ensuring compliance with the
Code.
[39]
For purposes of this application, the
provisions of section 117(7) are particularly relevant. It provides
that:
‘
The
governing body may remove a commissioner from office for-
(a) serious
misconduct;
(b) incapacity; or
(c) a material
violation of the Commission's code of conduct.’
[40]
It is evident that section 117(7) empowers
the CCMA Governing Body to remove a commissioner from office for
specific reasons.
[41]
In its answering affidavit, the CCMA
Governing Body explained that the exercise of the power to remove a
commissioner from office
can happen by way of two processes. The
first is during a commissioner’s performance review process,
conducted by the convening
senior commissioner during the course of
the commissioner’s performance or the CCMA Governing Body at
the time of the commissioner’s
contract renewal process.
[42]
The second process available to remove a
commissioner from office is through the process of complaints. The
CCMA has a complaints
department which receives complaints from
users, employees or any other party who wishes to lodge a complaint
about any process,
staff member, commissioner or actions of the CCMA.
Once a complaint is received, it is considered, evaluated and
appropriate steps
are then instituted. In the case of full time
commissioners, a disciplinary process is followed and in respect of
part-time commissioners,
an independent party would conduct an
investigation into the complaint and submit a report to the CCMA’s
human resources
committee, which makes recommendations to the CCMA
Governing Body.
[43]
The CCMA Governing Body makes a final
decision on the appropriate sanction to be imposed, which may include
the removal of the commissioner
from office, as provided for in
section 117(7) of the LRA.
[44]
In my view such a decision would constitute
the performance of a function provided for in the LRA and could be
subject to review.
[45]
The difficulty
in
casu
is that the Applicants never
lodged a complaint with the CCMA’s complaints department,
notwithstanding the fact that they
were advised to do so. Absent a
complaint, no process was followed in respect of the arbitrator and
the CCMA Governing Body had
not taken any decision in terms of the
powers it has and more specifically section 117(7) of the LRA.
[46]
The provisions of the LRA are clear –
the power to remove a commissioner from office, belongs to the CCMA
Governing Body and
it is a function provided for in the LRA, thus
subject to review. It is not for this Court to take a decision or to
give an order
for the removal of a commissioner in circumstances
where the functionary empowered to do so, had not taken such a
decision or performed
such a function.
[47]
The powers of this Court are limited to the
reviewing of the performance of the function, which was never
performed.
[48]
The Applicants failed to meet the first
requirement for review in terms of section 158(1)(g) namely to show
that there was performance
of a function provided for in the LRA.
[49]
Secondly, the Applicants failed to raise
any grounds for review permissible in law. The Applicants raised no
more than their own
gripes and dissatisfaction with the arbitrator,
no grounds for review had been raised in respect of the CCMA
Governing Body’s
performance of a function. This is no surprise
as no function had been performed that could be the subject of review
in terms of
the provisions of section 158(1)(g) of the LRA.
[50]
This Court is in no position to grant the
relief sought by the Applicants namely to direct the CCMA Governing
Body to remove the
arbitrator in accordance with section 117(7) of
the LRA and it follows that this application has to fail.
Costs
[51]
I
nsofar as costs
are concerned, this Court has a broad discretion in terms of section
162 of the LRA to make orders for costs according
to the requirements
of the law and fairness.
[52]
The
general accepted purpose of awarding costs is to indemnify the
successful litigant for the expense he or she has been put through
by
having been unjustly compelled to initiate or defend litigation.
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
Others
[10]
it was emphasized that:
‘……
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.’
[53]
In
Zungu
v Premier of Kwazulu-Natal and Others
[11]
the
Constitutional Court confirmed the principle that the rule of
practice that costs follow the result does not apply in labour
matters, but that the Court should seek to strike a fair balance
between unduly discouraging parties from approaching the Labour
Court
and have their disputes dealt with and, on the other hand allowing
those parties to bring to this Court cases that should
not have been
brought to Court in the first place.
[54]
This is a case where the Court has to
strike such a balance.
[55]
In their notice of motion, the Applicants
sought costs against the Respondents in the event that the
application is opposed, which
is indeed the case.
[56]
The CCMA, the CCMA Governing Body and the
arbitrator submitted that the Applicants’ case should be
dismissed with costs. To
substantiate the argument in favour of a
cost order, they submitted that the Applicants were invited to use
the appropriate processes
in respect of complaints in order for the
issue to be dealt with in the appropriate manner. This would have
avoided the review
application in terms of section 158(1)(g) of the
LRA, would have facilitated the withdrawal of their opposition and
avoided burdening
this Court. The Applicants however were not
amenable to follow the complaints procedure which they were advised
to follow, but
insisted to proceed with this application.
[57]
As a result of the Applicants’
conduct, the CCMA, the CCMA Governing Body and the arbitrator, who do
not normally participate
in litigation in this Court, were forced to
oppose this application and to burden the Court to adjudicate an
application that should
not have been brought or persisted with in
the first place.
[58]
Sibanye sought a punitive cost order
against the Applicants as they opined that the application was
without merit.
[59]
In casu,
the
Applicants filed a review application in May 2017 and did nothing to
seek an extension to file the record outside the prescribed
period
and took no steps to prosecute the review until April 2018. The
explanation tendered for that is in essence that the excessive
delay
was avoidable and is to be attributed to the NUM’s bureaucratic
management and negligence. The deponent to the Applicants’
affidavit even called the explanation tendered for the delay
‘laughable’. This is not the conduct of a trade union
that is serious about pursuing litigation on behalf of the Second
Applicant and it is certainly not conduct that is welcomed or
could
be condoned by this Court.
[60]
In respect of the section 158(1)(g) of the
LRA review application, the Applicants were forewarned not to proceed
to Court with the
application, as is evident from the letters written
to the NUM by the CCMA. The Applicants however ignored that and
stubbornly
persisted to approach this Court with an application that
should not have forced the CCMA
et al
to defend this application and should not have burdened this Court
which operates with already limited resources.
[61]
The Respondents were compelled to engage in
litigation and oppose this application. A cost order is a method of
ensuring that decisions
to litigate in this Court are taken with due
consideration of the law and the prospects of success. This, the
Applicants dismally
failed to do and in my view this is a matter
where a cost order is warranted.
[62]
In the premises I make the following order:
Order
1.
The application is
dismissed;
2.
The First Applicant
is to pay the costs.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
[1]
Act
66 of 1995, as amended.
[2]
April
2013.
[3]
See:
Ralo
v Transnet Port Terminals and Others
[2015]
ZAECPEHC 68 (17 June 2015),
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
[2014]
5 BLLR 516
(LC), (2014) 35 ILJ 1672 (LC),
Rumba
Samuels v Old Mutual
Bank
Case
no DA30/15 handed down on 25 January 2017.
[4]
Ralo
v Transnet Port Terminals and Others
[2015]
ZAECPEHC 68 (17 June 2015),
[2015] 12 BLLR 1239
(LC), (2015) 36 ILJ
2653 (LC).
[5]
(LCA
25/2009, 2 March 2010)
[6]
Id
n 4 at para 10.
[7]
[2013]
6 BLLR 614
(KZP) at para 32
[8]
Act
3 of 2000.
[9]
See:
Building
Industry Bargaining Council (Southern and Eastern Cape) v CCMA
[2011]
4 BLLR 330 (LC).
[10]
2012
33 ILJ 2117 (LC).
[11]
(2018)
39 ILJ 523 (CC).