C4/2586
VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 17 March 2000 CASE NO. J1061/00
In the matter between:
COMMISSIONER STAFF ASSOCIATION
ON BEHALF OF MEMBERS Applicant
and
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION AND OTHERS Respondents
J U D G M E N T
PILLAY, AJ :
[1] My ruling on the issue of costs is as follows: This matter was brought as an
urgent application and enrolled for hearing this morning. When the matter was called
up the parties indicated that they wished to discuss the matter as there was a
possibility of an agreement. The court stood the matter down until after lunch. But
before standing the matter down, the court indicated to the parties, and particularly to
the applicant, that its prima facie view was that it would be disinclined to intervene in a
disciplinary enquiry that was pending and asked the parties to make a serious effort at
resolving the dispute.
[2] When the matter was called up shortly after 14:00, the court was surprised to
find that it was being opposed. Opposing affidavits were filed for the respondents and
the applicant sought to have the matter stand down in order to consider the opposing
affidavit. The court granted a brief period to enable the applicant to do so. The court
granted a shorter period than was requested because of the indication given earlier in
the morning that the matter might be settled. It was in this context that the court wished
to hear whether as a result of the matter being opposed formally what the attitude of
the applicant might be.
[3] Mr Lebea, for the Respondents submitted that after the matter was stood down,
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the parties had resolved the matter but for the issue of costs. It also transpired
that the Respondents had agreed to furnish the registers that the Applicant
had requested. It would appear therefore that the only reason that the
Applicant persisted with the application this afternoon is because it could not
agree on the issue of costs with the Respondents.
[4] Nevertheless, it is now almost 18:30 on a Friday night and the court has had to
listen to lengthy argument initially on an application for my recusal. That application
was refused and it was followed by submissions on the merits of the matter.
Midstream, the applicant, after discussion with the respondent, agreed that it would
accept the tender of the information relating to the attendance registers. As a result the
need for this application fell away. The Applicant withdrew the application. Having
received the tender of the documents the Applicant should have withdrawn the matter
the moment it was recalled at 14h00. This did not happen and more than an hour was
wasted in arguing the matter on the merits.
[5] Then there remained the matter of costs. I should mention that the nub of the
applicant's case is that disciplinary enquiries had to be interdicted so that the first
respondent can furnish it with information, namely the registers. Now that the
information had been provided or tendered, the application fell away. I will not delay
these proceedings by tracing the issue beyond the recent few days. The first
respondent's last word on the matter before this dispute was referred for conciliation
appears in Annexure BK11 where the first respondent indicated that it was not obliged
to provide the applicant with records concerning other members of staff. It went on to
urge the applicant to indicate the relevance of the records that it sought and enquired
how it would be prejudiced if it did not receive them prior to the hearing. There were a
how it would be prejudiced if it did not receive them prior to the hearing. There were a
number of other items of information that the applicant had sought and the first
respondent dealt with these in Annexure BK11 to the satisfaction of the Applicant.
There is no dispute in relation to those other items. The only issue was that of the
registers.
[6] The applicant referred the matter for conciliation. It did not respond to the first
respondent by explaining the relevance of these records or how it would be prejudiced
but assumed that there was a deadlock. If the applicant had simply come back to the
first respondent and explained what the relevance of the documents were, and how its
members would be prejudiced, that might have been the end of the matter there and
then. Instead the First Respondent is now having to deal with one more conciliation
referral.
[7] In a letter which appears as Annexure 13 to the applicant's papers the second
respondent replied by expressing surprise that the matter had been referred for
conciliation without the applicant reverting to the respondent to say what aspects of the
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disclosure were inadequate. At the bottom of the same annexure Mr Ngenzana e
mailed Mr Bongani Khumalo stating that:
"In the light of the fact that the CSA has referred the matter to
conciliation on the issue of refusal to disclose information, we would like
to know if the disciplinary hearings will be proceeding on Friday, 17th
March. Please let us have your response by no later than close of
business today so that we can move an urgent application to stop the
disciplinary proceedings. Failure to respond by not later than the close
of business today, 14th March 2000, we will assume that the
disciplinary hearings will be proceeding."
[8] The first finding I make is that the applicant was precipitous in concluding that
there was a deadlock on the issue of the disclosure of the information relating to the
registers. Secondly, on the basis of the evidence that I have traversed, it would
appear that there is some merit in Mr Lebea's submission that the Applicant was
primarily bent on scuttling the enquiry, if that could be achieved firstly through the
conciliation referral and then through this process. That is an abuse of this court's
processes.
[9] I have considered the fact that the substantive matter has been settled in the
sense that it has been withdrawn. However, the first respondent submitted that it has
not offered the information not out of any sense of a legal obligation. In any case,
whether it is a legal obligation or not is not the issue before this court. It elected to do
so. Whether it might have done so before today and whether the information is indeed
relevant to the proceedings is not a matter for this court to decide.
[10] The issue before this court is to consider whether the Applicant had exhausted
[10] The issue before this court is to consider whether the Applicant had exhausted
all the remedies it had available to it before using the facilities of this court under these
extreme conditions. And the conditions I am referring to is that the staff of the court
who are also employees are having to work late as a result of this application at no
extra overtime pay.
[11] There is the aspect that the format of the applicant's papers do not comply with
the rules. That is an issue which can attract an order for costs. However, in the totality
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of the evidence before this court if that was the only issue warranting an order for costs
the Court have been inclined to refuse the order. However, there more compelling
reasons why an order for costs should be made.
[12] In response to Mr Moletsane’s submissions, something needs to be said about
whether the applicant and respondents have the same status as any other employer
and trade union. The rights of the parties as employer and an employee organisation
are enshrined in the Act and no one can deny that. However, the First Respondent is
a special institution. The First Respondent and its staff must be seen to practice what
they preach to the public in order to inspire public confidence and to promote effective
dispute resolution. If Commissioners want to command the respect of the public for
their awards and for their decisions, then they must conduct their affairs in a manner
that assures that the public that it can place its trust in their hands. Statements to the
effect that the management of the First Respondent does not understand the issue of
disclosure of information which, in the context is an elementary issue, does not attract
public confidence in the institution.
[13] Mr Moletsane, for the Applicant, brought to my attention that an award of costs
was given against a trade union this morning to pay 20% of the employer's taxed or
agreed costs in a similar application this morning. There is a difference between this
case and that one. The trade union official, amongst other reasons raised a
constitutional point in his papers. He had a bona fide belief that the application was
justified. He was also a lay person. The applicant today has the benefit of an attorney
and an advocate. In addition to all their obligations as employees of the CCMA and as
professional resolvers of disputes, they are also expected to be familiar with the rules
professional resolvers of disputes, they are also expected to be familiar with the rules
and decisions of court and with the approach of the CCMA. In particular, as officers
charged with resolving disputes for the public and in the public interest, one would
expect that attempts would have been made to resolve this dispute as soon as it arose
at the lowest possible level with the minimum amount of costs, and particularly the
minimum amount of cost to the relationship between the parties. If the applicant had
applied the lessons it has learnt in conflict management and dispute resolution to itself,
this dispute should have been resolved as soon as possible after Annexure BK11 had
been received.
[14] I find therefore that the Applicant did not exhaust all its remedies before
approaching this Court. It should have replied to Annexure BK11. Even if the
Respondents refused to furnish the register before the enquiry, the next step should
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have been to apply for an urgent conciliation and arbitration for disclosure or to ask
the chairperson of the enquiry to rule on the matter. Until those remedies are
exhausted an application to this Court is premature.
[15] There was no basis to cite the Second to Fifth Respondents in their individual
capacities. They act for and on behalf of the First Respondent. Any relief granted
against the First Respondent would have been adequate to secure compliance by the
Second to Fifth Respondents.
[16] It is getting quite late into the night and I think I have covered all aspects of the
evidence and the submissions that were made. There is the last aspect, the scale of
the costs. But for the fact that this matter was settled, I would have been inclined to
grant costs on a higher scale than party and party. As the matter has been settled on
the merits, I make the following order as to costs: The applicant is ordered to pay the
costs of the respondents on a party and party scale.
PILLAY AJ
LABOUR COURT OF SOUTH AFRICA
ON BEHALF OF APPLICANT : MR MOLETSANE
Instructed by : Commissioner Staff Association
ON BEHALF OF RESPONDENTS : MR JUSTICE LEBEA
Instructed by : Lebea and Associates
DATE OF ORDER : 17 MARCH 2000