IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO: JR 217/01
In the matter between:
NORTHERN PROVINCE DEVELOPMENT CORPORATION
Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
& ARBITRATION First
Respondent
ERIC PHINDELA Second
Respondent
MXOLISI NICK BAMBO Third
Respondent
___________________________________________________________
____
JUDGMENT
___________________________________________________________
____
TIP AJ :
1. The third respondent is a former employee of the applicant. At the time of
his dismissal on 13 May 1999, he was employed as the Corporate
Manager : Remuneration. He disputed the fairness of the dismissal and
referred the matter to the CCMA. The dispute was ultimately referred to
arbitration before the second respondent, for hearing on 7 February 2001.
On that day, the second respondent ruled that the applicant’s counsel was
not entitled to appear in the matter, he being a parttime commissioner of
the CCMA. The second respondent also dismissed an application for the
postponement of the hearing. The matter proceeded in the absence of
the applicant and an award was made in favour of the third respondent.
This is an application for the review of that award.
THE REPRESENTATION ISSUE
2. This question turns on the status of a policy decision taken by the
governing body of the CCMA. It is not clear when the relevant decision
was taken but it appears to have been circulated on 2 November 2000
under the subject “Parttime Commissioners appearing in the CCMA”.
The text of the communication, from the director of the CCMA, was in the
following terms:
“I have received numerous requests from parttime Commissioners
wanting to appear on behalf of parties at the CCMA. This matter was
discussed extensively by the National Directorate and the Governing Body.
The GB came to the conclusion that parttime commissioners should not
appear in the CCMA.”
3. At the hearing on 7 February 2001, the third respondent was represented
by his attorney, Mr Mahlase. Mr Mahlase had been a parttime
commissioner of the CCMA but, evidently in response to the policy
decision set out above, he had resigned by the time of the hearing. He
presented a letter to that effect.
4. By contrast, Adv Laka, who had been instructed on behalf of the applicant,
was also a parttime commissioner of the CCMA but had not resigned.
As appears more fully below, he informed the second respondent that he
had been advised by the convening senior commissioner of the CCMA in
Mpumalanga, the province where he was enrolled as a parttime
commissioner, that he could appear in other provinces. Since the dispute
had arisen and was heard in the Northern Province, Mr Laka contended
that he was therefore entitled to appear. The second respondent
nevertheless interpreted the CCMA policy directive as being of general
application and therefore held that Mr Laka could not appear.
5. Mr Laka appeared for the applicant in these review proceedings also.
Given that the key issue was concerned with his locus standi as a
representative in the CCMA, as well as ancillary issues which I will set out
below, it is in my view undesirable that he should have appeared in this
court in these proceedings. Inevitably, given the background to this
matter, he appeared not only as counsel for his client but also as counsel
in his own cause. Be that as it may, the first question to be addressed is
whether the exclusion of Mr Laka at the arbitration hearing was competent
as a matter of law.
6. The functioning of the CCMA is regulated in part A of Chapter VII of the
Labour Relations Act No. 66 of 1995 (“the LRA”). Section 116 establishes
the governing body of the CCMA and provides that its acts are “acts of the
Commission”.
7. Section 117 deals with the appointment of commissioners, including part
time commissioners. Such appointments are made by the governing
body. Section 117(1) stipulates merely that such commissioners are to be
“adequately qualified persons”. Section 117(2)(d) requires the governing
body, when making appointments, to “have due regard to the need to
constitute a Commission that is independent and competent and
representative in respect of race and gender”. Section 117(4) provides
that::
“The governing body must determine the commissioners’ remuneration,
allowances and any other terms and conditions of appointment not
contained in this section.”
Section 117(6) is in these terms:
“The governing body must prepare a code of conduct for the
commissioners and ensure that they comply with the code of conduct in
performing their functions.”
In terms of section 117(7)(c) the governing body may remove a
commissioner from office for “a material violation of the Commission’s
code of conduct.”
Consideration must also be given to section 115, which sets out the
functions of the commission. One of those is to make rules inter alia
regulating the practice and procedure for conciliation and arbitration
proceedings (section 115(2)(cA)(iii)).
8. To complete this review of the statutory framework, it is necessary to have
regard also to the provisions of section 138(4) of the LRA, which is in
these terms:
“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, office bearer or official of that party’s registered trade union
or registered employers’ organization.”
Section 140(1) deals with the circumstances under which legal
practitioners may appear in arbitration proceedings. I need not consider
those provisions in any detail, since it is common cause in this matter that
it was resolved that legal practitioners could indeed appear in the
arbitration before the second respondent.
9. Against the backdrop of the various provisions set out above, it is
necessary next to consider what the source of authority is for the decision
of the governing body that was circulated on 2 November 2000. In doing
so, I bear in mind two general perspectives:
9.1. The first is that the governing body of the CCMA is a creature of statute
with no inherent power to regulate its own affairs or those of the CCMA.
9.2. The second is that a purposive approach must be taken to the
interpretation of the LRA. The CCMA performs a vital dispute resolution
function and, in doing so, contributes substantially to the achievement of
the overall objects of the LRA. The independence of commissioners is
an important part of that process. Plainly, commissioners must not only
indeed be independent but must manifestly be seen to be so. The need
for an independent CCMA is indeed one of the specific statutory charges
upon its governing body. In such circumstances, it would form part of the
duty of the governing body to address a situation, assuming that such
exists, where individuals frequently sit as parttime commissioners and
frequently appear before it as representatives, since that may well
negatively affect the public’s perception of the independence of
commissioners. That is a policy and reguIatory matter that is properly to
be dealt with by the governing body. I should add that it is in general far
from being this court’s function to substitute its views on such matters for
those of the governing body. Thus, it falls within the province of the
governing body to consider the facts and statistics before it and to decide
whether there should be a policy that is in absolute terms and whether or
not it should differentiate the situation where a parttime commissioner
who sits in one province should be excluded from appearance as a
representative in another.
10. A purposive approach to the role of the governing body of the CCMA does
not however mean that the structure and wording of the LRA can in effect
be disregarded. The policy decision here at issue must therefore be
located within the Act itself. The attempt to do so does not produce a
readily apparent answer. Three specific possibilities present themselves:
10.1. The first is that the governing body’s decision falls within the ambit of “any
other terms and conditions of appointment” contemplated in section
117(4). However, that construction may more readily present itself as
producing a valid result in respect of appointments made after the decision
than those effected before it. In this regard, the “fixed term” of
appointment of a commissioner, as stipulated in section 117(2)(b) is
relevant. For some individuals, it may be a very material alteration of the
basis upon which they were appointed as commissioners, to be instructed
midstream that they are no longer permitted to appear before the CCMA.
There is nothing before me to suggest that the change brought about by
the policy directive has been anything but unilateral.
10.2. The second possibility is that the decision is to be read as forming part of
the “code of conduct” referred to in section 117(6). If that had indeed
been the intention then, in my view, it was more than a little desirable that
it should have been described as such. This is particularly so having
regard to the provisions of section 117(7)(c) which contemplates a related
removal from office. Again, the question presents itself as to the validity
of a unilateral alteration to a code of conduct in terms of which
commissioners have been appointed and have operated until the decision
circulated on 2 November 2000.
10.3. The third possibility is that the decision of the governing body amounts to a
rule as envisaged in section 115(2)(cA)(iii). It may well be that this
interpretation is unavoidable, given that Rule 21 of the CCMA Rules
promulgated on 31 March 2000 in Government Gazette No. 29081
expressly deals with the application of section 138(4) of the LRA. These
rules are described as “rules regulating the practice and procedure for
resolving disputes through conciliation and at arbitration proceedings” and
were made in terms of section 115(2)(cA)(iii) and (iv). Rule 21 deals with
representation at arbitrations in inter alia the following terms:
“21.1 Section 138(4) read with section 140 of the Act exclusively states who may
appear or be represented in arbitration proceedings. A commissioner has
no discretion to permit any person other than those listed in that section to
appear or act as a representative even if the other parties have no
objection.
21.2 If a party to the dispute objects to the representation of another party to the
dispute or the commissioner suspects that the representative of one of the
parties to the dispute does not fall within the ambit of section 138, the
commissioner must determine this issue.”
The relevance of that rule to the present issue is that the responsibility of a
commissioner visàvis representation is explicitly placed within the
confines of section 138(4) read with rule 21, neither of which in any way
contemplates the situation of a wouldbe representative who happens also
to be a parttime commissioner. In this context, the question mark over
the status of the policy directive is clear Moreover, if the decision of the
governing body were intended to fall within the ambit of a rule, it would
have required publication in the Government Gazette. See section 115(6)
of the LRA. Insofar as the decision is not a rule, it leaves commissioners
with the difficulty that they are required to apply rule 21 in a situation where
the decision of the governing body has no equivalent status.
11. It is however unnecessary for me, for the purpose of this judgment, to
make a final determination in respect of the validity of the governing body’s
decision, having regard to the difficulties that I have briefly outlined above.
This is so because analysis of the decision resolves into two components:
11.1. firstly, does the governing body have the power to decide that persons
who appear as representatives before the CCMA shall not be appointed as
commissioners of the CCMA or, having been so appointed, shall be
removed from office;
11.2. secondly, does the governing body have the power to determine that
persons who sometimes sit as parttime commissioners of the CCMA shall
be excluded if they present themselves as representatives in a dispute.
The application before me requires a decision on the second component
but not the first.
12. Mr Laka argued that section 138(4) sets out a clear statutory definition of
who is entitled to appear as a representative. As a duly admitted and
properly instructed advocate, he asserts that he falls clearly within the
ambit of that statutory stipulation and that it is beyond the power of the
governing body or, in this instance, the second respondent, to exclude him
from performing that representative function. He submitted further that
the CCMA could at the most act against him in his capacity as a parttime
commissioner, but not in his capacity as a representative. On the basis of
the analysis that I have set out above, I must conclude that this submission
is well founded. Neither section 115 nor section 117 of the LRA purports
to empower the Commission or its governing body to vary the terms of
section 138(4). As already indicated, CCMA rule 21 is consistent with
section 138(4) and is plainly calculated to give effect to it.
13. I accordingly find that the exclusion by the second respondent of Advocate
Laka from the proceedings before him on 7 February 2001 was not
competent. It follows that the award which resulted after the exclusion of
the applicant’s chosen legal representative cannot stand.
THE POSTPONEMENT ISSUE
14. In case I should be wrong in relation to the representation issue, I proceed
to consider the ruling made by the second respondent in refusing a
postponement as requested by the applicant’s representatives on 7
February 2001. The application for postponement was made after the
ruling that Adv Laka could not represent the applicant and was said to be
for two purposes: an application for the review of the decision to exclude
Adv Laka; and, an opportunity to arrange alternative legal representation.
That those two reasons could not meaningfully coexist is selfevident, but
of no real consequence for the purpose of this judgment. The second
respondent was unpersuaded that the intimation of a review obliged him to
postpone the proceedings. I agree with him. However, I do not share his
view that the circumstances before him were such as to warrant the refusal
of a postponement in relation to the second reason.
15. The relevant background factors may be summarized as follows:
15.1. The arbitration was first enrolled for 25 October 2000 but, evidently by
agreement, was postponed to 20 November 2000. It appears that the
issue of legal representation arose on that day, that it was decided that
there could be legal representatives, and that the matter was again
postponed in relation to that issue. There is a dispute on the papers as to
whether or not the decision of the governing body was pertinently raised
on that occasion. There are strong indications that it was, but these are
not reflected in the award made by the second respondent. In any event,
I need not determine that question. I should add that the second
respondent’s award states that the postponement on 20 November 2000
was at the request of the employer, i.e. the applicant. However, the
affidavit of the third respondent filed in the proceedings before me states
that this postponement was agreed upon his “special request and
instance”.
15.2. The matter was then enrolled for 29 January 2001 and proceeded to
hearing, as already indicated, on 7 February 2001. Again, and as
reflected in the award, this appears to have been done by agreement
between the parties.
15.3. It is common cause that the third respondent’s attorney contacted the
applicant’s attorney to advise that an objection would be made to Adv Laka
representing the applicant at the arbitration, on the ground that he was a
parttime commissioner. According to the affidavit of Ms Morobane, a
candidate attorney employed at the applicant’s attorney, this was on 24
January 20001.
15.4. Ms Morobane than contacted a commissioner at the CCMA in Gauteng, Mr
Hlongwane, relating to this objection and was informed by him that part
time commissioners were not allowed to appear as representatives in the
province where they were engaged as commissioners. It was suggested
by him that this should be confirmed with Mr Van Zeydman, whose
capacity is not described in the affidavit but may be assumed to be a
senior official of the CCMA.
15.5. Mr Van Zeydman was contacted by Ms Morobane. His advice was that
Adv Laka should get permission from his convening senior commissioner
in Mpumalanga to appear in a CCMA hearing conducted in the Northern
Province.
15.6. On 7 February 2001, the second respondent was informed of these
enquiries and their fruits. He was informed also that Adv Laka had indeed
approached the convening senior commissioner in Mpumalanga and that
he had been told that he could appear in a different province, being the
Northern Province. There is nothing on record to suggest when this
conversation took place. It is also clear that none of the steps outlined
about were conveyed to the third respondent’s attorney before the hearing
on 7 February 2001.
16. The second respondent was unpersuaded by these considerations. He
held:
“The employer was warned well in advance by Mr Mahlase on 25 January
2001, some ten days before the hearing, that its chosen counsel would not
be allowed to appear in the proceedings. It must have anticipated this by
making alternative arrangements. On the other hand, Ms Snyders who
was the instructing attorney in this matter, was in attendance. Ms
Snyders’ submission that only Advocate Laka prepared for the matter has
a hollow ring and can therefore not be sustained. In my view Ms Snyders,
as an instructing attorney, is privy to the issues which were to be raised in
the proceedings and she was accordingly competent to represent the
employer. I need not canvass in full the involvement of an attorney in a
matter in which she/he is instructing a counsel. It is sufficient to state that
to my mind an attorney instructing discusses the matter with counsel and
together they outline the line of defence to be followed.
Alternatively, if Ms Snyders was serious about representing the employer
or the employer was serious about defending the matter, she could have
applied that the matter stand down for an agreed time so that she could
refine her preparations and the employer could have instructed her
accordingly. In my view such an application would not have been
unreasonable, more so that the matter was set down for the whole day.”
17. In my view, these reasons for refusing the postponement show that the
second respondent did not have adequate regard to the full set of facts
that had been placed before him. Although he had been informed of the
various measures that had been taken in relation to the position of Mr Laka
and although the second respondent noted “that they laboured under the
impression that he would be allowed to appear”, that factor appears not to
have weighed with him at all. Instead, he adopted the robust approach
have weighed with him at all. Instead, he adopted the robust approach
that there had been a warning on 25 January 2001 and that the applicant
should therefore have made alternative arrangements.
18. In this context, he took the view that Ms Snyders was in a position to
represent the applicant or could, without requiring a postponement, “refine
her preparations” if given a short adjournment. In expressing that view,
the second respondent entirely discounted the statement made by Ms
Snyders that Adv Laka had been briefed to represent the applicant and
that he was prepared, whereas she was not. The hearing was evidently
to be a fairly substantial one. It is common cause on the affidavits that the
matter had been set down for two days of hearing, with a third day in
reserve. In those circumstances, it is in my view thoroughly unrealistic to
take the view that an instructing attorney can simply step into the shoes of
counsel briefed to conduct the matter or would be in a position to do so
after a short adjournment to refine her instructions. (Equally, I am
unpersuaded by the submission advanced to me on the third respondent’s
behalf by Mr Nowosenetz that the applicant’s team present at the
arbitration consisted of senior and competent people and that any one of
them could simply have substituted as the representative.) Such
approach has no regard to what is involved in a proper process of
preparation for the conduct of a hearing, including the presentation of
one’s own evidence, the crossexamination of opposing witnesses and the
submission of arguments. In addition, it must be observed that the
dispute concerned a senior employee and was a matter of some
consequence.
19. It is clear from the background events outlined above that it had
throughout been the intention of the applicant to resist the relief sought by
the third respondent at the arbitration. It is in my view difficult to
understand how the second respondent could have formed the view that
Ms Snyders was not serious about representing the employer or that the
employer itself was not serious about defending the matter. Although I
agree with the second respondent to this extent, that Mr Laka and other
members of the legal team representing the applicant should have done
more to clarify and formalise his status before the hearing of 7 February
2001, this is far from being a situation where the notification of the
proposed objection was simply ignored. Steps were taken and the
second respondent was informed inter alia that a convening senior
commissioner had given the advice that it would be in order for Adv Laka
to appear in a hearing in the Northern Province. The deficiency that
arises from this is that no formal ruling was obtained and that the obvious
precaution of securing an endorsement of that advice by the head office of
the CCMA was not pursued. Likewise, the failure to respond to Mr
Mahlase before 7 February 2001 was more than professionally
discourteous; it was certain to contribute to a dispute at the hearing. The
approach of, particularly, Adv Laka was in my view unacceptably casual.
All considered, it would certainly have been appropriate for the second
respondent to require that the applicant pay the costs of a postponement.
20. In the result, it is my conclusion that the second respondent erred in an
unjustifiable manner in refusing a postponement on 7 February 2001, for
the purpose of arranging properly prepared legal representation. In
coming to that conclusion, I do not lose sight of the fact that the granting or
withholding of a postponement involves a considerable degree of
discretion and that this court should interfere with the exercise of such
discretion only in very limited circumstances. As an illustration of the
common law approach to this question see Tuesday Industries (Pty)
Limited v Condor Industries (Pty) Limited & Another 1978 (4) SA 379
(TPD). I have regard also to the approach of this court in decisions such
as the following:
Ross & Son Motor Engineering v CCMA & Others [1998] 11 BLLR 1168
(LC);
Dimbaza Foundries Limited v CCMA & Others [1999] 8 BLLR 779 (LC);
MIT Tissue v Theron & Others [2000] 8 BLLR 947 (LC).
At the same time, it remains an important feature of the matter before me
that the applicant arrived at the arbitration hearing on 7 February 2001 fully
prepared and willing to proceed. It was believed that Adv Laka had
clarified his position and that the impediment raised by the decision of the
governing body had been cleared. In this important respect, this case is
distinguishable from those that I have referred to, in which a party came to
the proceedings intending to secure a postponement.
21. It is therefore my conclusion that the award made by the second
respondent in the absence of the applicant should be set aside also on the
ground of his refusal of the application for postponement, to the extent that
this was for the obtaining of properly prepared legal representation.
22. Although the applicant must succeed, it does not follow that it should enjoy
the benefit of a costs award in its favour. I have already described the
extent to which I consider there to have been significant shortcomings in
the manner in which the notice of objection by Mr Mahlase was responded
to. Had that been dealt with timeously and in a thorough and professional
manner, the situation which the second respondent was called upon to
deal with might well not have arisen. Likewise, recourse to this court may
then also have been unnecessary. A further consideration is that
although the applicant has succeeded in its principal point, that concerning
the legal standing of the decision of the governing body of the CCMA, no
contention with that formulation was placed before the second respondent
at the time of the hearing before him. At that stage, Mr Laka’s objection
was that the second respondent himself did not have the authority and that
it was for the governing body to decide. The status of the governing
body’s decision was itself not challenged. Having regard to all the
circumstances and the terms of section 162(1) of the LRA, it is my
conclusion that no order as to costs should be made in respect of this
application.
23. The applicant has sought a determination by this court that the dismissal of
the third respondent by the applicant was fair. There is no basis for the
granting of such relief. The transcript of the proceedings in the CCMA
obviously records only the version of the third respondent. That version
has not been tested by the applicant. Likewise, the applicant’s version
has not been tested on behalf of the third respondent.
24. I make the following order:
24.1. The award made by the second respondent under CCMA case number
NP12992 on 22 February 2001 is hereby reviewed and set aside to the
extent of paragraph 1 thereof.
24.2. Paragraph 2 of the said award is varied to read: ‘The employer is to pay
the costs of today, as on postponement, on the Magistrates Court scale’.
24.3. The matter is remitted to the CCMA for hearing de novo before a
commissioner other than the second respondent.
24.4. No order is made as to costs.
_____________________________
K S TIP
Acting Judge of the Labour Court
Date of hearing : 28 September 2002
Date of judgment : 12 October 2001
For applicant : Adv A P Laka
Instructed by : Maponya Inc.
For third respondent : Adv L Nowosenetz
Instructed by : Mahlase, NonyaneMahlase