REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO
D950/2001
DATE
2002/07/23
In the matter between:
S E F VORSTER Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
AND OTHERS Respondents
BEFORE THE HONOURABLE MR ACTING JUSTICE
NGCAMU
ON BEHALF OF APPLICANT: MR J A VENTER
ON BEHALF OF FOURTH RESPONDENT: MS L NAIDOO
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
CASE NO: D950/2001
DATE: 23 July 2002
In the matter between:
S E F VORSTER
and
COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION
AND OTHERS
J U D G M E N T
NGCAMU AJ
[1] The applicant in this matter seeks to review and set aside the
decision of the Commissioner in dismissing the applicant's
dispute of unfair dismissal.
[2] The dispute came before the CCMA for arbitration on
3 October 2000. The applicant's attorney indicated that the
matter was not going to be finalised in one day. The
arbitration was then postponed to 19 February 2001. On this
date the applicant asked for a postponement because her
attorney had withdrawn. The matter was postponed to 21 May
2001 to proceed for five days.
[3] Prior to 21 May 2001 the Commissioner, Mr Oakes, contacted
the applicant's labour consultant, Eric Botha, and advised him
that the second respondent was seeking an adjournment and
wanted to contact the applicant.
[4] On 7 May 2001 Mr Eric Botha informed the applicant and the
applicant's attorney about the proposed adjournment. This
was at a meeting during a consultation. At this meeting the
applicant, the attorney and Mr Botha took a decision to agree
to a postponement. This decision was, however, never
communicated either to the Commissioner, Mr Oakes, or to the
second respondent.
[5] On 10 May 2001 the Commissioner contacted the applicant
direct and indicated that the second respondent requested a
postponement. The applicant indicated that she had no
objection but that first a letter had to be sent to her attorney.
The applicant did not advise the Commissioner that an
agreement to postpone had been reached with her attorney.
No letter was sent to the applicant's attorney regarding the
respondent.
[6] On 18 May 2001 the Commissioner sent a letter to the
applicant's attorneys confirming that the matter would
proceed on 21 May 2001 as the consent to the postponement
had not been provided. The applicant was advised about this
by her labour consultant. The applicant also contacted her
attorney about this.
[7] On 20 May 2001 the attorney sent a letter to the
Commissioner as well as a medical certificate indicating that
he was ill.
[8] The matter came before the Commissioner on 21 May 2001.
The applicant then requested a postponement which was
refused. The Commissioner granted applicant an opportunity
to have her attorney present for the matter to proceed on
22 May 2001.
[9] On 22 May 2001 the applicant came without her attorney and
asked for a postponement on the same grounds as raised on
the 21st. This application again was refused. After the
postponement was refused the applicant left the hearing. The
Commissioner dismissed the application.
[10] Several grounds have been raised in the review application by
the applicant, including the allegation of bias. It was
submitted that the Commissioner committed gross irregularity
and misdirected himself in refusing to grant the
postponement.
[11] Rule 17 of the CCMA rules provides the following:
"17.1Postponement will be granted without the need for the parties to
appear if both of the following conditions are met:
(a) all the parties to the dispute agree in writing to the
postponement, and
(b) the request for the postponement is received by the
Commissioner more than ten days prior to the scheduled date
of arbitration.
17.2 A formal application in writing for postponement must be made if
(i) the parties cannot agree whether or not an arbitration should be
postponed, or
(ii) the request for a postponement is made within ten days of the
scheduled date of arbitration.
The application must be served before the scheduled date for
the arbitration. The Commissioner must decide whether to
grant the request for a postponement on the written document
presented or whether to convene a formal hearing."
[12] There was no written agreement forwarded to the
Commissioner regarding the postponement of the arbitration
as required under Rule 17.1. There was also no formal
application contemplated in Rule 17.2.
[13] The applicant seeks to rely on the telephone conversation with
the Commissioner in which it was indicated that the second
respondent wanted a postponement. It is evident from the
record that the second respondent contacted the first
respondent about the postponement because it was unsure of
the applicant's conduct.
[14] The Commissioner contacted applicant's labour consultant to
facilitate an agreement for a postponement. The applicant's
attorney as well as the applicant's labour consultant never
confirmed the postponement with the second respondent.
[15] In paragraph 32 the applicant stated the following:
"Due to the discussion with Mr Botha, it was agreed that the
latter would confirm with the Commissioner (first respondent)
that the matter be adjourned and that my attorney Mr
Grundlingh would suspend all consultations with witnesses
pending the outcome of discussions with the second
respondent's representative."
It is interesting to note that Mr Botha did not confirm the
adjournment with the Commissioner as agreed.
[16] When the Commissioner phoned the applicant on 10 May
regarding the postponement, there was no indication that the
postponement had been agreed but a condition was put
forward in that a letter had to be faxed to the attorneys. No
letter was faxed to the attorneys. This meant that the matter
remained on the roll for 21 May as there was no
communication with the Commissioner.
[17] Mr Botha and the applicant gave conflicting versions as to the
agreement of postponement. On page 86 of the bundle,
lines 1 to 4, Mr Botha stated the following:
"So, Mr Commissioner, you approached me. I phoned the
CCMA. I had discussions with you on two occasions where I
confirmed and you accepted the fact that the matter was
postponed."
At page 87, lines 1 to 4, the applicant stated the
following:
"Mr Commissioner, Mr Anthony Oakes called me and asked for
a postponement because he could not, according to him, get
hold of my witnesses. I declined and I refused. I said I want to
carry on, to go on with the matter."
[18] Mr Botha confirmed that they needed a request to be on paper
so that they would not be held liable for the postponement. It
is common cause that nothing in writing came along. After
considering the matter the application for a postponement was
then refused.
[19] The applicant was granted an opportunity to contact an
attorney for the matter to proceed on the 22nd. On 22 May
the applicant knew that a postponement had been refused and
the matter was to proceed. She again came with an
application for a postponement. As a result of the
Commissioner's refusal to grant a postponement applicant
decided to withdraw. This resulted in the dismissal of the
application.
[20] It is common cause that the postponement was not
communicated to the first and second respondents. The
applicant approached the arbitration on the basis that the
matter was going to be postponed. She knew that there was
nothing in writing. The applicant was ill-advised to abandon
the hearing on refusal of the postponement. A postponement
is not a matter of right; it is an indulgence granted by the
Court to a litigant in the exercise of a judicial discretion. This
is the position with the Commissioners as well. See
Carephone (Pty) Ltd v Marcus N.O. and Others [1998] 19 ILJ
1425 [LAC] at para. 54.
[21] The Commissioner dismissed the application for a
postponement on the basis that there had been previous
postponements requested by the applicant. It was also
rejected on the basis that there was no agreement to have the
matter postponed. The Commissioner afforded applicant an
opportunity to obtain another lawyer. She failed to do this and
did not explain why another attorney could not be found. She
did not explain if all the witnesses were unavailable. The
applicant had to deal with this question of alternative lawyer
but failed to do so.
[22] In the Carephone case, at paragraph 56 of the judgment, the
Court stated the following:
"The Commissioner's rejection of the stated need for a
postponement as being inadequate because there was no
explanation of the steps taken from 12 to 17 June 1997 to
obtain other legal representation, appears to be well-founded.
Even if that explanation was acceptable, the employee's
prejudice resulting from a postponement could not be cured by
the Commissioner making a costs order. Indeed, the appellant
expressly declined to pay the costs resulting from a
postponement. If the application for a postponement were
brought in a court of law, there would thus have been good
grounds for refusing it and no reason to accept such a finding
on appeal. The same applies to a continuation of proceedings
after refusal of a postponement where the unsuccessful
applicant for the postponement elects to absent himself from
the proceedings."
[23] The Carephone case is similar to the present one. I fully
agree with the decisions of the Labour Appeal Court in this
matter. The applicant placed herself in difficulties by making
an election to absent herself. The postponement in the CCMA
arbitrations are not to be easily granted. This is so because
the Labour Relations Act provides for effective resolution of
labour disputes. Section 138(1) of the Labour Relations Act
therefore directs Commissioners to determine disputes fairly
and quickly. The employee is entitled to finality of the dispute.
There was in this case no tender for costs but the applicant
sought to rely on the agreement which was disputed by the
Commissioner. See further in this case Chemical Workers
Industrial Union v Darmag Industries (Pty) Ltd [1999] 20 ILJ
2037 [LC] at paras. 29 to 32.
[24] In Real Estate Services (Pty) Ltd v Smith [1999] 20 ILJ 196 [LC]
at paras. 12 and 13 REVELAS J stated the following:
"12. In my view postponements in arbitration proceedings in terms of
the Act should be granted on a less generous basis than is
done by the Courts. Arbitrations are designed to finalise
disputes fairly and quickly with minimum legalities
[Section 138(1) of the Act]. Cost orders in postponements are
limited by section 138(10) of the Act. Therefore the discretion
exercised by the Commissioners of the CCMA in this regard
should be even less open to interference by the Labour Court
sitting as a court of review.
13. The CCMA is an institution which, from all accounts, is a
very busy one. Commissioners set down dates for conciliation
and arbitration and they have a discretion whether to grant
postponements or not."
[25] It is to be noted that this case was set down for five days. The
Commissioner notified the parties that the matter was going to
be proceeded with as there was no written consent. Applicant
was well aware of the fact that the matter was going to
proceed and she was also aware of the refusal to postpone the
matter and was, therefore, given a chance to obtain another
lawyer. A refusal to allow a postponement in the
circumstances cannot be said to have been irregular. The
Commissioner exercised his discretion based on the facts
before him. The rules relating to the postponements had not
been adhered to and therefore the second respondent was at
this stage refusing to agree to a postponement. Had the
applicant remained in the proceedings the result could have
been different. What counts against the applicant is that
although the lawyer was not present she had the labour
consultant on her side for advice. Mr Botha was always at the
arbitration where the matter appeared. Even on the date
when the postponement was refused on the 21st, Mr Botha
was present. Again on the 22nd he was present and in fact
gave evidence regarding the alleged postponement.
[26] For the applicant to abandon the proceedings she left the
Commissioner with no option. Section 138(5) of the Labour
Relations Act provides the following:
"If a party to the dispute fails to appear in person or to be
represented at the arbitration proceedings and that party-
(a) had referred the dispute to the Commission, the commissioner
may dismiss the matter; or
(b) had not referred the dispute to the Commission, the
commissioner may-
(i) continue with the arbitration proceedings in the absence of
that party; or
(ii) adjourn the arbitration proceedings to a later date."
[27] It would be noted from this section that although the
commissioner is given a discretion to dismiss the dispute, he is
not given an alternative if the defaulting party is the person
who had referred the dispute. Accordingly, the commissioner
had to dismiss the application in this matter.
[28] It is unwise or negligent on the part of the applicant in a
dispute to abandon the proceedings in order to force a
postponement. Even if the decision to refuse a postponement
is prejudicial to the applicant, this did not give her a right to
abandon the proceedings. The applicant abandoned the
proceedings and was therefore the author of her own
misfortune. There is therefore no merit in the review based on
the refusal to have the matter postponed. The Commissioner
did not commit any irregularity in refusing the postponement.
[29] The applicant also raised the question of bias on the part of
the Commissioner. It is evident from the record that the
Commissioner did not consent to the postponement. He could
not on his own consent to a postponement without the consent
of the respondent. It is the parties involved who had to agree.
His conduct in contacting Mr Botha or the applicant was
merely to facilitate a postponement. This cannot be said to be
an act of bias. The argument that the Commissioner is
employed by the Municipality or local government has no
merit as well. The fact that the sector in which the dispute fell
was indicated as a Municipality/Local Government does not
mean that the Commissioner is employed by the second
respondent as alleged by the applicant and therefore this
could not have created an impression of bias on the part of the
applicant. This ground of review is therefore dismissed.
[30] The applicant's attorney indicated an intention to apply for a
recusal of the Commissioner. This he did in his letter that was
addressed to the Commissioner. No such application was,
however, raised. The applicant, if she wanted to have the
Commissioner recuse himself, should have instructed another
attorney at least to move this application. This was never
done by the applicant. As a result of that the Commissioner
never recused himself.
[31] After considering the facts presented I cannot find any
irregularity entitling the applicant to have the award reviewed
and set aside. I am of the view that the decision to refuse a
postponement was rational and correctly made. The applicant
did not want to involve herself in the hearing after the refusal
of the postponement. Whether or not the two other
postponements were opposed or were by consent does not
assist the applicant as they were both at her request to the
Commissioner to exercisd his discretion in allowing the further
postponement. In the result the application for review cannot
succeed.
[32] The application for review was not without merits which could
influence the Court to make a costs order against the
applicant. I am, therefore, satisfied that I should not make any
costs order in this case. In the circumstances the order that I
make is the following:
(a) The application for review is dismissed.
(b) There is no order as to costs.