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IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

CASE NO JR 1546//02

BARGAINING COUNCIL FOR

THE BUILDING INDUSTRY APPLICANT

and

MABALANE S NO 1^ST RESPONDENT

THE COMMISSIONER FOR CONCILIATION,

MEDIATION AND ARBITRATION 2^ND RESPONDENT

LEMAO TS 3^RD RESPONDENT

JUDGMENT

BASSON, J

NATURE OF THE REVIEW

1. This is a review in terms of section 145 of the Labour Relations Act 66 of 1995 (hereinafter referred to as “the LRA”) for an order condoning the late filing of this application and secondly, that the award of the First Respondent (hereinafter referred to as “the Commissioner”) dated 19 July 2002 under case number FS6517 in the arbitration proceedings between the Applicant (hereinafter referred to as “the Employer”) and the Third Respondent (hereinafter referred to as “the Employee”) be reviewed and set aside. The gist of the review relates to the refusal by the Commissioner to grant an application for postponement of the arbitration proceedings that were set down for 15 June 2002. The Employer brought an application for postponement on the basis that it was not able to secure the presence of its main witness on the day of the arbitration. The underlying dispute between the parties relates to the dismissal of the termination Employee on 30 July 1998 due to alleged misconduct.

CONDONATION

2. The Applicant first sought condonation for the late launching of the present application. The Court was, however, advised that the Third Respondent was not opposing the application for condonation. I have nonetheless perused the condonation application and, without going into detail, I am satisfied that a reasonable explanation is tendered for the delay. In the event the late referral of the review application is condoned.

BACKGROUND FACTS

3. The dispute was initially referred to the CCMA on 12 August 1998 and was set down for arbitration on 1 June 1999. The CCMA dismissed the dispute on the basis that it did not have jurisdiction to hear the dispute because the Employee alleged unfair dismissal due to discrimination. The dispute was thereafter referred to the Labour Court on 20 April 2002. When the matter came before the Labour Court on 28 June 2001, the parties agreed that the matter be referred back to the CCMA for a hearing irrespective of the findings of the CCMA.

4. On 6 March 2002 the Employer received a notice of set down for 10 April 2002. However, on 10 April 2002 the Employer agreed to a request from the Employee for a postponement. A further notice of set down was issued for 25 June 2002. The Employer’s main witness, Mr Charl Scholtz (hereinafter referred to as “Scholtz), was unable to attend the hearing on 25 June 2002 because he had already left the employment of the Employer and previous work commitments prevented him from attending. On 21 June 2002, 4 days before the scheduled hearing, the Employer faxed a letter to the CCMA requesting a postponement. The reasons for the postponement are detailed in this letter. It is specifically stated in this letter that Scholtz was not unwilling to attend, but that he was merely unable to attend due to previous work commitments. The Employer received no written response from the CCMA. Because no response was received from the CCMA, a representative of the Employer (Ms Van Vuuren – hereinafter referred to as “Van Vuuren”) duly attended the scheduled arbitration proceedings in order to argue an application for a postponement.

5. The arbitration proceeded on 25 June 2002. It appears from the record of the arbitration proceedings that Van Vuuren then brought a formal application for a postponement on the basis as set out in the correspondence to the CCMA. Van Vuuren also stated that the Employee had also previously sought a similar indulgence from the Employer which was duly granted. By this time the dispute between the parties had already been dragging on for four years.

6. The Commissioner was of the view that, since a senior commissioner had already stated in a letter to the parties that a postponement would not be considered, he (the present commissioner) did not have the power to review that decision. The Commissioner accordingly refused to grant the postponement. I have already referred to the fact that it was the Employer’s case that it had never received the said letter. The said “ruling” was also not placed before this Court to confirm that a “ruling” had indeed been made by the Senior Commissioner. It also appears from the Employee’s answering affidavit ad paragraphs 11.2 and 11.4 that he is also not certain whether or not such a ruling has indeed been made by the Senior Commissioner and what reasons, if any, were given for the ruling. In this regard it is stated in paragraph 11.2 of the answering affidavit that the ruling was “most probably in response to the letter” and in paragraph 11.4 it is stated that the “the CCMA apparently responded by means of the ruling”. In view of the fact that the Employer did not dispute the existence of the said ruling, it will accept for purposes of this judgement that such a ruling was in fact made by the Senior Commissioner.

7. After having refused to allow the Employer to argue an application for postponement, the Commissioner then instructed the Employer to proceed with the arbitration without its main witness despite the fact that Van Vuuren had made it clear to the Commissioner that it was unable to continue without the Employer’s main witness who was also the Employer’s legal representative at the time of the Employee’s dismissal. The arbitration then proceeded without the participation of the Employer. The Commissioner issued an award in terms of which it found that the dismissal of the Employee was unfair and granted the Employee compensation in the amount of R 24 000.00.

RULES OF THE CCMA

8. At the time when this matter was before the CCMA, Rule 17 of the Rules of the CCMA regulated the issue of postponements. In terms of this rule postponements will be granted without the need for the parties to appear if both of the following conditions are met:

(a) Firstly, all the parties to the dispute must agree in writing to the postponement; and

(b) Secondly, the request for postponement must be received by the Commission more than 10 days prior to the scheduled date of the arbitration:

“17 Postponements

17.1 Postponements 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 Commission more than 10 days prior to the scheduled B date of the arbitration.

17.2 A formal application in writing for the postponement must be made if -

(i) the parties cannot agree whether or not to an arbitration should be postponed; or

(ii) the request for a postponement is made within 10 days of the scheduled date of arbitration.

The application must be served before the scheduled date for the arbitration. The Commission must decide whether to grant the request for a postponement on the written document presented or whether to convene a formal hearing” (Own emphasis.)

9. Section 19 of the Rules sets out the procedure that must be adhered to in bringing an application. The Rules reads as follows:

.

“19 Applications/Motion proceedings in respect of preliminary matters such as applications for condonation, jurisdictional disputes, variation and rescission applications and other interlocutory applications

19.1 An application must be brought on notice to all persons who have an interest in the application.

19.2 The party bringing the application must sign the notice of application. The application must be delivered and must contain the following:

(e) a notice that if it intends opposing the matter, the party must deliver an answering affidavit within five days after the application has been served, failing which the matter may be heard in the party's absence; and

19.3 The application must be supported by an affidavit. The affidavit must clearly and concisely set out: ...

19.4 (a) Any party opposing the application may deliver a notice of opposition and an answering affidavit.

(b) A notice of opposition and an answering affidavit must be delivered within five days from the day on which the application is served on the party opposing the application....

19.6 Subject to the discretion of a commissioner, a written statement may be substituted for the affidavits referred to in rule 19.2 to 19.5.

19.7(a) The Commission must allocate a date for the hearing of the application once a replying affidavit is delivered, or once the time limit for delivering a replying affidavit has lapsed whichever occurs first.

(b) The Commission must notify the parties of the date, time and place of the hearing of the application.

19.8 Notwithstanding rule 19.7, the Commission may determine an application in any manner it deems fit.

19.9 Any ruling made by a commissioner in terms of these Rules which has the effect of a final order will be regarded as an arbitration award.'

10. It thus appear from the aforegoing that a formal application for a postponement must therefore be made in writing in the event the parties cannot agree whether or not an arbitration should be postponed or where the request for postponement is made within 10 days of the scheduled date of arbitration. The application must be served before the scheduled date and the commission must then decide whether or not to grant the request for a postponement on the written document presented or whether to convene a formal hearing.

11. Where the procedures as set out in the aforegoing paragraphs have not been followed, a formal application for a postponement must be made at the arbitration hearing.

12. It appears that the Employer did not bring a formal application for a postponement in the form prescribed in Rule 19 of the then applicable Rules. The Employer merely wrote a letter to the CCMA requesting a postponement and when no answer was received, approached the CCMA on the day of the arbitration to apply for a postponement.

THE LAW IN RESPECT OF POSTPONEMENTS

13. It is trite that the granting of an application for postponement is not a right but an indulgence granted by the CCMA or the Court in the exercise of a judicial discretion. See Real Estate Services (Pty) Ltd v Smith (1999) 20 ILJ 196 (LC).¹ It is also trite that an application for a postponement must be bona fide and not used simply as a technical manoeuvre for the purpose of obtaining an unfair advantage over the opposing party. In considering an application for a postponement, the Court and the CCMA must also weigh up whether any prejudice caused by the postponement can fairly be compensated by an appropriate cost order. The CCMA must also weigh up the balance of convenience or inconvenience to both parties which will be caused by a postponement against the prejudice or inconvenience which will be caused to the applicant for postponement if the application is not granted.

14. In the present case the Commissioner refused the postponement simply because there was a “response in the file from the senior convening commissioner declining the postponement.” Apart from the fact that the Senior Commissioner acted ultra vires in declining postponement in the manner it did, there it is, in any event, no facts before this Court to show what the Senior Commissioner took into account in coming to such a conclusion as the letter by the Senior Commissioner has not been placed before this Court.

15. It was submitted on behalf of the Employer that this finding is clearly a gross irregularity and a complete failure to comply with the principles of the audi alteram partem simply to decline an application for a postponement without the benefit or a hearing. Furthermore, with reference to Rule 17, it was argued that the CCMA can only determine a postponement application without the parties actually having to appear to argue the postponement if both parties are in agreement as to the postponement or where a request for a postponement was received more than 10 days before the arbitration. It was further submitted that, because the latter Rule did not apply, the Senior Commissioner was simply not in a position to determine the application for a postponement application in the absence of the parties. It was, so it was argued, thus necessary for the Commissioner at arbitration to determine the issue of a postponement. Furthermore, since the senior commissioner could not have determined the postponement application in the manner in which it did, the actions of the Commissioner were clearly ultra vires. The commissioner’s reliance on this ruling was therefore irregular and constituted a material failure to discharge his duties.

16. I am in agreement with the submissions advanced on behalf of the Applicant. The Commissioner clearly did not apply his mind and clearly the construction placed by the arbitrator on the apparent decision made by the senior commissioner not to grant postponement was erroneous in law. There was no application for a postponement as contemplated by the Rules and clearly the senior commissioner was not in a position to entertain the application. Rules 17 and 19 are only designed for cases where an application for condonation is made in the ordinary course and not where the application is made from the bar. See in this regard the NF Die Casting (Pty) Ltd v Metal & Engineering Bargaining Council & Others (2002) 23 ILJ 924 (LC) where the Court held as follows:

“:[23] I am of the view that the application for postponement was not properly entertained on its merits because the arbitrator took the view that, having regard to the provisions of rules 17 and 19, it was not properly before him. The construction placed on these rules by the arbitrator was erroneous in law, since the rules are plainly designed for cases in which an application for postponement is made in the ordinary course. Where the application is made from the bar, it is plain that these two rules, and in particular rule 17 cannot apply.

[24] The arbitrator's belief that the rules have the effect of precluding any application from the bar had the result that he failed to consider the application for a postponement on its merits, and in consequence, improperly rejected it. The approach that the arbitrator took was such that he shut his mind to the submissions that would have been made to him on the merits, and as a result, failed to properly apply his mind to the matter. In consequence, he rejected an application that should have been entertained by him and considered on its merits, thereby committing a reviewable irregularity.

[25] The standpoint adopted by the arbitrator was based on a reading of the CCMA Rules that was, in the circumstances, vitiated by error of law so drastic as to constitute a material irregularity in the circumstances. The arbitrator by misconstruing the rules in the way he did, took a blinkered approach to the provisions of the rules and thus failed to apply his mind to the merits of the application.

[26] If he had not committed this irregularity, he would have considered the application on its merits and decided it accordingly. It would have been open for him to decide that the application for postponement should be granted and then to decide, once the application for withdrawal of the concession and for a declaration that the referral was out of time and thus null and void had been made, to consider that on its merits and potentially to decide in favour of the applicant. This irregularity prevented a fair trial of the issues and a failure of justice.”

17. As already stated, there never was an application for postponement in the ordinary course and thus the Commissioner should have allowed to parties to do so from the bar. By refusing the Applicant to bring such an application the Commissioner clearly closed his mind to the merits of the application for condonation and therefore failed to properly apply his mind. The Commissioner therefore failed to consider whether there was a good motivation for the postponement. The Commissioner also closed his mind to the fact that because the matter has dragged on for four years the employer’s main and crucial witness had left the employment of the employer and was, as a result of work commitments, unable to attend. It is furthermore clear from the letter that the said witness was able and willing to testify but was unable to do so on that particular day. The Commissioner, by taking the stance that he will not even entertain an application for condonation therefore closed his mind to the possible prejudice which the employer party would suffer if the application for a postponement was refused.

18. I am therefore of the view that the Commissioner committed a reviewable irregularity firstly by committing an error of law in the construction of the Rules of the CCMA and secondly by closing his mind to the merits of the application for postponement. As a result of this decision the arbitration continued in the absence of the Employer’s main and crucial witness. See Foschini Group (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others (2002) 23 ILJ 1048 (LC):

[25]“… The commissioner’s failure to grant the applicant an opportunity to call witnesses (by adjourning the proceedings for a short while) was grossly irregular and unreasonable.

[26]By refusing the applicant the opportunity to call witnesses, the commissioner ignored the principle of audi alternam partem and denied the applicant a proper opportunity to be heard which prevented a fair trail of the issues. In my view, the failure to observe the audi alternam partem rule renders the decision invalid...”

19. In the circumstances the following order is made:

1. The late filing of the review application is condoned

2. The award of the First Respondent, Commissioner Mabalane of the Second Respondent under case number FS6517 and dated 19 July 2002 is reviewed and set aside.

3. The dispute is remitted back to the Second Respondent for hearing on the merits of the matter before a Commissioner other than the First Respondent,

4. No order as to costs.

…………………………..

BASSON, J

DATE OF HEARING 19 June 2007

DATE OF JUDGEMENT: 7 September 2007

FOR THE APPLICANT:

MS M NTSOANE OF SNYMAN ATTORNEYS

FOR THE RESPONDENT:

ADV PM VENTER

INSTRUCTING ATTORNEYS: MTHEMBU & VAN VUUREN

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