IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J504/99
In the matter between:
MACEBO MATTHEWS MAFUYEKA Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
SALEEM SEEDAT Second Respondent
WALTERNAN DORMAS (PTY) LTD Third Respondent
KENNETH STEVEN BUNCE Fourth Respondent
JUDGMENT
MARCUS AJ:
[1] This is an interlocutory application. It arises out of review proceedings
instituted by the applicant ("the employee") against the CCMA as the first
respondent, Saleem Seedat ("the commissioner") as second respondent, Walternan
Dormas (Pty) Ltd ("the Company") as third respondent and Kenneth Stephen
Bunce ("Bunce") as fourth respondent.
[2] According to the employee, he was unfairly dismissed by the company on
2 June 1998. This dispute was referred to the CCMA. A conciliation meeting was
held on 16 July 1998. The employee was represented by a union official. The
company was represented by Bunce. The union objected to Bunce's presence,
initially on the basis that Bunce was described as a "lawyer" but also on the basis
that Bunce was not a director of the company. This point flows from section
138(4) of the Labour Relations Act, 66 of 1995 ("the Act") which provides:
"In any arbitration proceedings a party to the dispute may appear in person
or be represented only by
(a) a legal practitioner;
(b) a director or employee of the party; or
(c) any member, officer bearer or official of that party's registered trade
union or registered employer's organisation."
Bunce claimed that he was a duly appointed director of the company. He was
challenged on this issue by the union official and was required to produce proof of
his appointment as a director of the company. The conciliation proceedings were
terminated and the commissioner ruled that the issue of Bunce's capacity to
represent the company would be dealt with at the arbitration.
[3] A few days before the arbitration, the company furnished a form CM29
which reflected Bunce as a director of the company. The endorsement on this
form, however, bears a date stamp from the Registrar of Companies substantially
later than 16 July 1998, when Bunce was first challenged on the issue. It also
appears that Bunce signed the form on 28 September 1998. The form states that
Bunce was appointed as a director on 11 March 1997. Bunce explains in an
answering affidavit that the Registrar of Companies was not immediately advised
of his appointment as a result of an administrative oversight. Bunce also states:
"I was lawfully appointed as a director of third respondent by virtue of a
resolution dated 10 July 1998."
Bunce annexes a copy of this resolution to his affidavit. The resolution in
question reflects a decision taken at a meeting of the Board of Directors held on
14 July 1998 (and not 10 July 1998 as alleged in the affidavit) appointing Bunce
as a director of the company "with effect from the date of the resolution in order to
accept responsibility for all personnel and labour related matters and to represent
the company in all its dealings in this respect in whatever forum such affairs need
to be attended to".
[4] The question of Bunce's capacity to represent the company was argued
before the commissioner. He ruled in favour of the company. The commissioner
concluded that there was nothing to suggest that Bunce's appointment was
fraudulent and that he did not fall outside the ambit of persons entitled to represent
parties at arbitration proceedings in terms of the Act. It is this decision which the
employee seeks to have reviewed and set aside. The employee also seeks a
declarator that the company may not be represented by Bunce in proceedings
before the CCMA concerning his dismissal.
[5] Pursuant to the application for review, the employee has filed two sets of
affidavits dated 6 and 9 February 1999 respectively. In these affidavits the
employee seeks to make out a case that the appointment of Bunce as a director of
the company is a mere sham calculated to evade the provisions of section 138(4)
of the Act. In order to support this contention the employee alleges that Bunce has
repeatedly procured an appointment as director of a company "for (the) sole
purpose to secure a right of appearance to which he is not entitled". The employee
cites the case of A Ntaka v Skip Waste (Case No. GA21678) in which it is alleged
that Bunce claimed that he was a director of Skip Waste and therefore entitled to
represent that company. Reference is also made to the case of Tivani v African
Hoe (Pty) Ltd (Case No. GA6791) in which it is alleged that Bunce's capacity to
represent the company was challenged. Here too, it is alleged that Bunce claimed
that he was a "full time director" of African Hoe (Pty) Ltd and had been
"associated" with that company for 13 years. In the supplementary affidavit it is
alleged that Bunce claimed that he had been associated with this company for 15
years).
[6] In the supplementary affidavit by a union official, on behalf of the
employee, there are further allegations concerning Bunce's capacity to represent
various companies. It is stated:
"On 040399 I conducted investigations into Mr Bunce's history of his
appearances by making research and perusing some arbitration awards of
CCMA in Gauteng Province. The following is the outcome of the aforesaid
investigation:
(a) In 1997 in the matter between UPUSA obo J Nkosi v Astoria Bakery
(Case No. GA2927) Mr Bunce represented Astoria Bakery under the false
pretence that he was its attorney while he was not an attorney. ...
(b) In 1998 in the matter between NUMSA v Girder Naco (Pty) Ltd (Case
No. GA30075) Mr Bunce represented Girder Naco (Pty) Ltd under the false
pretence that he was its attorney while he was not an attorney. ...
(c) On 27/07/98 in the matter between T & GWV obo Sheila Zondo v
First Park (Pty) Ltd (Case No. GA12553) Mr Bunce appeared on First Park
(Pty) Ltd's behalf notwithstanding the fact that he was not First Park (Pty)
Ltd's director. ..."
In the case of all three examples referred to, documentary evidence evidencing Mr
Bunce's appearances are furnished.
[7] Bunce filed an answering affidavit in response to both the founding
affidavit and the supplementary affidavit in which he deals, in the main, with his
appointment as a director of Walternan Dormas (Pty) Ltd. With regard to the
other instances referred to above in which Bunce has allegedly represented
companies in proceedings before the CCMA, Bunce simply states that he denies
the allegations and further that he has been advised that these allegations are not
relevant to the present proceedings "and require no further comment".
[8] In order to enable the employee to file a replying affidavit, he has
instituted the present interlocutory application in which he seeks to compel the
company to furnish certain information contained in a letter dated 8 April 1999,
addressed by the union to Bunce and the company. This letter states:
"In the affidavit of Mr Bunce there is Annexure SKB4 alleging that 'it was
resolved at a meeting with the Board of Directors held on 14 July 1998 to
appoint Mr S K Bunce as a director of the company with effect from the date
of the resolution'. In order for us to be able to file a replying affidavit
properly and timeously:
(a) kindly give us proof of the quorum for a meeting with the Board of
Directors held on 14 July 1998 to appoint Mr S K Bunce; and
(b) kindly also give us copies of the books in which minutes of the
aforesaid meeting are kept showing:
(i) all appointments of Mr Bunce made by the directors;
(ii) the names of the directors present at such meeting of the directors and
of any committee of the directors;
(iii) all resolutions and proceedings at such meetings of the company and
of the directors and the resolution in writing of the directors and every
director present at such meeting of directors having signed his name in a
book in which aforesaid minutes are kept."
[9] The employee then describes various attempts by him and the union to
secure the requested information from both Bunce and the company, but all to no
avail. He has therefore resorted to the present application to compel the company
to furnish the information.
[10] This is an unusual application and the question that immediately arises is
whether it is within the powers of this court to grant the relief sought. The
employee relies on Rule 7(3)(b) of the Rules of the Labour Court which, when
read with Rule 7(4)(c), requires that an answering affidavit must set out the
"material facts" with sufficient particularity to enable the applicant to reply
thereto. I am doubtful whether this rule would entitle me to grant the relief
sought.
[11] Mr Wilke, who appeared on behalf of the company has argued that I do not
possess the powers to grant the relief sought. He draws specific attention to the
provisions of Rule 7(4)(c), read together with Rule 7(1)(f). The effect of these
two rules read together, is that it is incumbent upon a respondent in an answering
affidavit to ensure that the affidavit contains a schedule listing the documents that
are material and relevant to the application. Mr Wilke contrasts this rule with
Rule 7A, which governs the procedure for review. Rule 7A makes no mention of
a requirement to furnish a schedule of relevant documents. Hence, on this
argument, a comparison between Rule 7(2)(f) and Rule 7A gives rise to the
inference that the omission in Rule 7A is deliberate and there is accordingly no
obligation to furnish a schedule of documents. The reason for the omission in
Rule 7A, argues Mr Wilke, lies in the nature of review proceedings.
[12] Mr Wilke draws attention to the decision of the Labour Appeal Court in
Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC). In that
case the Labour Appeal Court laid down the test for review under section 145 of
the Act. It stated at 1435E that the question to be asked is whether there is "a
rational objective basis justifying the connection made by the administrative
decisionmaker between the material properly available to him and the conclusion
he or she eventually arrived at".
[13] It should be emphasised that for purposes of the present application, I am
not called upon to determine those issues which will ultimately be decided by the
reviewing court. In the present case, the applicant seeks to go behind the veneer of
what on the face of it appears to be a regular appointment of Bunce as a director of
the company and to expose it as a sham.
[14] It seems clear that a situation of the sort presently under consideration is
not expressly catered for by the Labour Court Rules. There are, however, two
potential sources from which authority for the relief now claimed may be derived.
Firstly, Rule 11 is designed specifically to deal with interlocutory applications and
procedures not specifically provided for in other rules. Rule 11(3) and (4)
provide:
"(3) If a situation for which these rules do not provide arises in
proceedings or contemplated proceedings, the Court may adopt any
procedure that it deems appropriate in the circumstances.
(4) In the exercise of its powers and in the performance of its functions or
in any incidental matter, the Court may act in a manner that it considers
expedient in the circumstances to achieve the objects of the Act."
[15] The second potential source of authority is section 151 of the Act which
provides:
"151 (1) The Labour Court is hereby established as a court of law and
equity.
(2) The Labour Court is a superior court that has authority, inherent
powers and standing in relation to matters under its jurisdiction equal to that
which a court of a Provincial Division of the Supreme Court has in relation to
the matters under its jurisdiction. ..."
[16] For the better part of this century the Supreme Court of South Africa has
acknowledged that it is possessed of inherent jurisdiction in order to regulate its
own procedures in circumstances not contemplated by legislation or the rules of
court. As the Appellate Division pointed out in Universal City Studios Inc v
Network Video (Pty) Ltd 1986 (2) SA 734 (A):
"There is no doubt that the Supreme Court possesses an inherent reservoir of
power to regulate its procedures in the interests of the proper administration of
justice." (at 754G)
In Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms)
Bpk 1972 (1) SA 773 (A) at 783AD the court cited with approval the decision in
Ncoweni v Bezuidenhout 1927 CPD 130 where the following was stated:
"The rules of procedure of this Court are devised for the purpose of
administering justice and not hampering it and where the rules are deficient I
shall go so far as I can in granting orders which would help to further the
administration of justice. Of course if one is absolutely prohibited by the
rule, one is bound to follow this rule. But if there is a construction which can
assist the administration of justice, I shall be disposed to adopt that
construction."
The Appellate Division also cited, with approval, the observations of Williamson J
in Brown Bros Ltd v Doise 1955 (1) SA 75 (W) at 77:
"In my view, this is a case where the Rules of Court, as framed, do not
provide for one particular set of circumstances which can arise and I think
that the Court has inherent power to read the rules applicable to the
procedure of the Court in a manner which would enable practical justice to
be administered and the matter to be handled along practical lines."
See also S v Malindi and Others 1990 (1) SA 57 (A) at 69GI.
[17] The Supreme Court has emphasised that it will only exercise its inherent
jurisdiction with great caution. There are, however, many examples where this
power has been exercised in the interests of justice. In Seetal v Pravitha and
Another NO 1983 (3) SA 827 (D) it was held that the Supreme Court's inherent
power allowed for the issuing of directions concerning the collection of evidence
that was needed in litigation (at 832D). In reaching this conclusion, the court
quoted with approval a dictum of Lord MacDermott in which reference was made
to the High Court's "inherent jurisdiction to make interlocutory orders for the
purpose of promoting a fair and satisfactory trial" ( S v S ; W v Official Solicitor
1972 AC 24 at 46E quoted at 832E of Seetal's case).
[18] In a case somewhat analogous to the present, the inherent jurisdiction of
the Supreme Court was relied on in order to justify an order on the secretary of an
unincorporated body to furnish an ordinary member with the names and addresses
of the members of the executive in circumstances where the members intended to
institute proceedings against the executive committee (see Stuart v Ismail 1942
AD 327).
[19] In my view the present is an appropriate case for the exercise of this court's
inherent powers. The case made out by the employee in the review application is
indeed suggestive of a stratagem to evade the provisions of section 138(4) of the
Act. Bunce's refusal to deal with the various cases in which he allegedly
represented companies in his capacity as director simply serves to fuel suspicion.
At issue is whether Bunce and the company acted in fraudem legis (See Dadoo
Ltd v Krugersdorp Municipal Council 1920 AD 530.) This is not an issue with
which I am presently concerned. It will be the subject of review proceedings in
due course.
[20] Mr Wilke argues that even on the assumption that section 151 of the Act
permits an order of the present sort, it should not be exercised to order the
production of irrelevant material. He argues that the production of the form CM
29 at the arbitration is essentially an end of the matter. As indicated, however, the
case which the employee seeks to make is that Mr Bunce and the company were
party to a stratagem to evade the provisions of the Act. The documents requested
are, in my view, relevant to the issues in dispute.
[21] The employee has made repeated, but unsuccessful, attempts to obtain the
information requested. These requests have been directed to both Bunce and the
company. The employee has been repeatedly fobbed off. The furnishing of such
information, will entail no significant inconvenience to either the company or
Bunce.
[22] It was urged upon me by Mr Wilke that no order for costs should be made
against Bunce since the actual relief sought is only against the company. Mr
Maluleka, however, argues that the attempts to obtain the documentation have
been directed at both Bunce and the company. It seems to me that Mr Maluleka's
contentions are correct. Had either Bunce or the company complied with the
repeated requests to furnish the information, the present application would not
have been necessary.
[23] In the circumstances I make the following order:
1. The third respondent (Walternan Dormas (Pty) Ltd) is ordered to deliver
the particulars contained in the applicant's letter of request dated 8 April 1999 and
annexed to the founding affidavit as Annexure M1 to the applicant within one
week of this order.
2. The third respondent and the fourth respondent (Kenneth Stephen Bunce)
are ordered to pay the costs of this application.
3. The late filing of the applicant's replying affidavit in the review
proceedings is condoned.
4. The time within which to file the applicant's replying affidavit in the
review proceedings is extended by five days from the date of the respondent's
compliance with the order referred to in paragraph 1.
_________________
G J MARCUS
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
DATE OF HEARING: 11 JUNE 1999
DATE OF JUDGMENT: 11 JUNE 1999
On behalf of applicant : MR MALULEKA of NEWU
On behalf of respondent : ADV F J WILKE
Instructed by : A J Oberlechner