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REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

judgment

Not reportable

Case number: J 548/16

In the matter between:

ROAD ACCIDENT FUND                                                                                             Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION                                                                    First Respondent

ACTING SENIOR COMMISSIONER MODISE N.O                                    Second Respondent

ELIAS MOSENEKE AND OTHER                                                                   Third Respondent

Heard: 22 March 2016

Judgment: 22 March 2016

Dated edited and signed:  13 April 2016

EX TEMPORE JUDGMENT

STEENKAMP, J

[1] This matter was enrolled as an urgent application on the 17^th of March 2016 for hearing today, the 22^nd of March 2016, after the intervening long weekend. The relief sought is the following:

“That the arbitration proceedings scheduled on 23 March 2016 under CCMA case number GAJB 9388/14 be stayed, pending the final determination of the appeal in respect of the judgment of the Honourable Acting Justice Matlejoane.”

[2] The matter has an unfortunate history and one would not blame the third and fourth respondents, the two employees, for thinking that the old adage of ‘justice delayed being justice denied’ is true in their case. They were dismissed as long ago as 2013; almost three years ago. The employees referred an unfair dismissal dispute to the CCMA. It came before Commissioner Thee in August 2014. Having referred the dispute late, they applied for condonation. The commissioner granted condonation. The applicant, the RAF, applied to have that ruling reviewed and set aside. The review application came before Acting Justice Matlejoane on 3 July 2015. Unfortunately the further delay, not of either parties’ making, is that the Acting Judge then took six months to hand down judgment on the 23^rd of December 2015.

[3] The RAF applied for leave to appeal on the 15^th of January of this year, 2016. The application for leave to appeal was refused on the 18^th of March 2016, i.e. the day after this application was launched. On the same day the CCMA also granted the application for postponement.

[3] The urgency of this application is based, firstly, on the fact that the arbitration was due to start tomorrow, the 23^rd of March; and secondly, that the appeal against the judgment of the Acting Judge Matlejoane was pending. Both of those reasons for urgency have fallen away. The postponement has been granted and leave to appeal has been refused. One would have thought that that should have been the end of the matter. There is clearly no longer any basis for urgency and the applicant (the RAF) should, in my view, not have persisted in bringing this application as an urgent one. The application should be struck from the roll for that reason alone, as Mr Ford has argued.

[4] Ms Schensema, however, has argued that she was instructed to proceed as, in her client’s view, the matter is still urgent. That is so, she says, for two reasons. The one is that in granting the postponement the CCMA said: ‘The matter is postponed and will accordingly be rescheduled.’ She therefore argues that although no date has been set, the matter could be rescheduled at any moment and therefore the urgency remains. She also argues -- and I allowed her to make the submission from the bar -- that her instructions are to petition the Labour Appeal Court for leave to appeal and that that petition will be filed shortly, and in any event by the 6^th of April. I am not persuaded that either of those reasons takes away the fact that the urgency, on the basis of which this matter was brought originally, still remains. Even if I had not decided to strike the matter from the roll for lack of urgency, I would have been hard-pressed to grant it on the merits.

[5] As I have pointed out; justice delayed is justice denied. The very aim of the Labour Relations Act (Act 66 of 1995) is for unfair dismissal disputes to be resolved expeditiously and cheaply, and that is why arbitration is meant to be final and binding. In this case that purpose was thwarted when, in the face of the commissioner having exercised his discretion to grant condonation, the RAF was not satisfied with proceeding with the matter on the merits, but brought a review application before this court.

[6] As the Acting Justice pointed out in her judgment, the threshold in applications for review is a high one in any case. In a case where a commissioner exercised his discretion, it is arguably even higher. On the face of her judgment, I would agree with her that, as she stated in the ruling on leave to appeal, it is unlikely that another court will come to a different conclusion. In my view, it is also unlikely that the applicant has any prospects of success in its petition for leave to appeal.

[7] Ms Schensema raised the issue of costs being borne by the tax payer. One is tempted to ask why the RAF has seen fit to spend the tax payer’s money by litigating this matter over the levels of three fora over the period of three years, rather than addressing the arbitration expeditiously and cheaply on its merits in circumstances where at arbitration neither party is entitled to legal representation, which only adds to the costs.

[8] Should the CCMA proceedings that have not been set down, simply be stayed indefinitely while the applicant seeks to take this matter through yet another level, and perhaps even a further level up to the Constitutional Court, the prejudice to the employees, in my view, outweighs any prejudice that the RAF may suffer. In fact, the prejudice to the RAF is non-existent as it could simply go back to arbitration where, as I have said, the matter can be heard on the merits without legal representation and with very little cost to either party.

[9] That leaves the issue of today’s costs. Mr Ford, who was briefed at a late stage to argue the matter eloquently today on behalf of the employees, has argued that the RAF should be ordered to pay the employees’ costs. I agree that it was not necessary for this matter to proceed on an urgent basis, given the rulings on leave to appeal and the request for postponement by the CCMA. I can see no reason in law or fairness why the applicant should not be held liable for today’s costs. I do take into account that the employees have not filed any answering papers, so that no costs would be incurred in that aspect of the application.

Order:

I therefore rule that the application is struck from the roll for lack of urgency. The applicant is ordered to pay today’s costs incurred by the third and fourth respondents.       

STEENKAMP J.

Judge of the Labour Court

Appearances

For the Applicant :                                         Ms H Schensema of Hogan Lovells

For the third and fourth respondents:            Mr B. Ford

Instructed by:                                                Nkosi Nkosana Inc.

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