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THE LABOUR COURT OF SOUTH AFRICA,

JOHANNESBURG

Not Reportable

Case no: JR205/13

In the matter between:

SYNERGISED ENGINEERING TECHNOLOGIES (PTY) LTD	Applicant
And
JAN DIRK BAKKER	First Respondent
COMMISSIONER MAPALO TSATSIMPE	Second Respondent
THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION	Third Respondent

Heard: 19 May 2016

Delivered: 10 August 2016

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] This Applicant seeks to review and set aside an in limine ruling issued on 26 December 2012 by the Second Respondent (the Commissioner) under case number GAJB21020-12. In her ruling, the Commissioner upheld an objection raised on behalf of the First Respondent (Bakker) at the commencement of the arbitration proceedings that certain evidence, which the Applicant sought to adduce was irrelevant and inadmissible for the purposes of a determination of the unfair dismissal dispute. Bakker opposed this application.

Background:

[2] The Applicant provides inter alia project management services to various clients. In July 2009, it had entered into an agreement in terms of which it was appointed to provide project management services to a mining project of BHP Billiton in the Northern Cape. Bakker, a professional Engineer, was initially employed by the Applicant in September 2009 through the services of a Temporary Employment Service (TES) to assist with the BHP Billiton project.

[3] The Applicant alleges that in 2010, there were a number of incidents pertaining to Bakker’s performance and conduct, as result of which he was removed from one area (infra) of the project to another (at Mamatwan).  After the move, Bakker was allegedly involved in an illicit affair with one of the females working on the project, which conduct allegedly did not bode well with BHP Billiton.

[4] In September 2011, Bakker was alleged not to have performed his duties according to expected performance standards, which allegedly did not bode well with BHP Billiton. In the light of the allegations against Bakker, and at the behest of BHP Billiton, counselling sessions were held with him in February 2012. Bakker handed in his resignation on 10 February 2012. According to the Applicant, a certain Mr. Markgraff of BHP Billiton had also indicated to it that BHP Billiton no longer wanted Bakker to be involved in its projects.

[5] The Applicant nevertheless reappointed Bakker with effect from 1 March 2012 in terms of a limited duration contract that was to expire on 28 February 2014 without informing BHP Billiton. He was appointed as a Mechanical Construction Manager in the Central Block project, Wessels Mine in the Northern Cape. The Applicant alleged that it had envisaged that Bakker’s interaction and engagement with BHP Billiton would be minimal as he would no longer be involved in project management, and would be under the direct control of its CEO and Area Manager.

[6] It was contended on behalf of the Applicant that BHP Billiton nevertheless brought it to its attention that it was aware that Bakker was working on one of its sites and raised concerns in that regard. According to the Applicant, BHP Billiton implied that Bakker’s performance on site would play a role when its contract with the Applicant came up for renewal at the end of 2012. In the light of these concerns, the Applicant then entered into discussions with Bakker with a view of moving him to an alternative position in Gauteng. Amidst these discussions, there were further allegations of unbecoming conduct levelled against Bakker in May 2012, and BHP Billiton had again informed the Applicant that Bakker’s presence at Wessels Mine would have an impact on the renewal of its contract

[7] When discussions with Bakker failed, and when he had rejected an alternative position offered to him, the Applicant then decided to terminate his services on 9 July 2012, especially in the light of BHP Billiton’s stance on the matter. The letter effectively terminating Bakker’s employment reads as follows;

‘Dear Jan Dirk

Redeployment options offered:

The Synntech business model requires delivering a project management services to the client through qualified and skilled people with the ability to work in a very close relationship with the client. This relationship, where the client often interacts with the Synntech resources on a daily basis over a long period of time, either enables successful delivery of the service or it hinders the ability of the project manager to deliver the expected outputs.

Over the last few months it became evident that the relationship between you and the client on the HMM Contract has been damaged irreparably due to your dealings and interactions with different parties at the BHP Billiton. In February of this year Synntech offered you an opportunity to take up a severance package due to this on-going problem or to take up a new position on a fixed term contract basis at the Central Block project at the Wessels Mine, which in our view, would’ve shielded you to an extent from day to day interaction with the client. You opted for the fixed term contract at the end of March. This was the second time Synntech had to move you to a different client project environment due to issues with client relations.

Against this background and given the fact that to date the client relationship issues within the Northern Cape have not been resolved, Synntech decided that it was in your and the company’s best interest to redeploy you to a project outside of the BHP Billiton environment.

During the week of 2^nd to the 6^th of July, Jacques Wheeler discussed an opportunity for you to be redeployed to a new project at Exxaro in Pretoria. This was formalised during your visit to Synntech’s head office yesterday. Synntech offered you the following;

1. Retaining your current salary package of R50, 000-00 per month

2. The day to day use of a company vehicle whilst working on the project (In this regard Synntech bought a brand new Volkswagen Polo for your use)

3. Two paid flights per month to go home to your family. It must be pointed out that the norm in Synntech is one paid flight for those travelling between the Northern Cape and Gauteng.

You opted not to accept these conditions not even for a short period of time until we or you could find something more suitable.

You therefore left us with no alternative but to give you notice that were are ending the employment contract. The notice period stated in the contract dated 20 February 2012 is one week. Synntech will pay you an additional two weeks’ salary with your last working day being the 31^st of July 2012. It will not be required of you to be on site for the next three weeks to allow you some time to look for alternative employment.

Regards

Jacques Wheeler

Managing Director’

[8] Bakker then referred a dispute to the CCMA, alleging that he was unfairly dismissed as a result of the termination of his contract. At the commencement of the arbitration proceedings, the issue that arose was whether the Applicant should be allowed to lead oral and documentary evidence that pertained mainly to Bakker’s period of employment prior to 1 March 2012, including in respect of various allegations of poor performance and personal problems he had in his previous employ. Bakker objected to this evidence being led due to its lack of relevance to the issues that led to the termination of his services.

[9] At those proceedings, the Commissioner had made attempts to establish from the parties’ representatives as to what the dispute was all about and the real reason for the dismissal. As is apparent from the transcribed record of arbitration proceedings[1], the oral submissions made on behalf of Bakker were to the effect that the parties having attempted to hold a pre-arbitration meeting, it became clear that the Applicant sought to adduce certain documentary and oral evidence pre-dating Bakker’s employment before 1 March 2012. The objection raised was that such evidence was irrelevant and inadmissible, and would further protract the arbitration proceedings.

[10] Upon further enquiring as to the reason for the dismissal, the Commissioner was informed by Mr. van der Westhuizen on behalf of the Applicant that the dismissal of Bakker was related to incapacity, or in the alternative, a combination of incapacity or operational requirements. It was however contended that primarily, the dismissal was due to incapacity[2]. The Commissioner had then afforded the parties to file written submissions in respect of the preliminary point raised.

The written submissions before the Commissioner:

[11] Bakker essentially objected to the evidence in question in that it was irrelevant to the proceedings and highly prejudicial to him. He contended that the evidence related to events before his employment by the Applicant, and was further disconnected to the facts and circumstances surrounding his dismissal.

[12] In its written submissions[3], the Applicant contended that the evidence pertaining to Bakker’s employment prior to 1 March 2012 was relevant as it was meant to demonstrate that Bakker performed poorly and that inter alia, his conduct had created a situation where BHP Billiton no longer wanted him to be involved in its projects or be employed on its sites. It was further contended that the Applicant had no option but to remove Bakker considering that its contract with BHP Billiton was coming up for renewal, and that the removal of Bakker from the BHP Billiton sites was directly related to the events which transpired from 2009 to January 2012. It was also submitted that the letter of 9 July 2012 clearly referred to the history of the matter and relationship with BHP Billiton, and that the Applicant’s case was that the events prior to 1 March 2012 were inextricably linked to the dismissal, and constituted relevant and material evidence which explained its decision as recorded in that letter.

[13] Submissions made on behalf of the Applicant were further to the effect that it remained its primary case that Bakker’s dismissal related to incapacity, and that whether Bakker was aware of the reasons for his dismissal was a matter which could only be answered at the end of the hearing after all the evidence had been led.

The Commissioner’s Ruling:

[14] The Commissioner in her ruling recorded that having enquired with the Applicant’s representative, she was advised that Bakker was dismissed for poor work performance, or alternatively, on account of the Applicant’s operational requirements, and that the evidence sought to be adduced would substantiate the reasons for termination.

[15] The Commissioner further stated that in determining the issues, it was important for her to have a good grasp of the nature of the dispute. She lamented the fact that since Bakker did not know the reason for the termination of his contract, it was weird that the Applicant could give two unrelated reasons for the dismissal. The Commissioner held that the evidence that the Applicant sought to adduce against Bakker, and in particular, that pertaining to his performance was in respect of events related to a ‘dead’ contract (her emphasis). She agreed with submissions made on behalf of Bakker that there was no reason for the Applicant to offer him another contract if it was not satisfied with his performance in terms of the previous contract, and further that Bakker could not be blamed for something that the Applicant failed to address during the tenure of that contract. She further agreed with Bakker that any evidence pertaining to issues of poor performance, counselling or bonuses should be in respect of new contract, and that dismissing an employee on the basis of evidence in respect of previous contracts could not be fair.

[16] In regards to specific evidence the Applicant sought to adduce, the Commissioner found that Bakker’s previous letter of resignation and allegations of infidelity made by his wife were irrelevant for the determination of the dispute before her. To the extent that the Applicant had persisted with its contention that Bakker was dismissed for alleged poor performance or on the grounds of operational requirements, the Commissioner identified the evidence that would be relevant for the purposes of determining the fairness thereof, and in particular reference to the new contract.

[17] Ultimately, the Commissioner found that the evidence sought to be relied upon by the Applicant which was related to previous contracts (pre March 2012) was irrelevant and would not assist in the determination of whether the dismissal on alleged poor performance or on the grounds of operational requirements was fair or not.

The grounds for review and arguments:

[18] The Applicant seeks to have the ruling reviewed and set aside on the basis that;

18.1 Bakker was dismissed due to his behaviour and the negative impact it has had on the relationship between the Applicant and BHP Billiton, its client, and that these circumstances could only be explained within the context of the all the facts including those prior to 1 March 2012.

18.2 The Commissioner’s ruling that the impugned evidence was not relevant was irrational, unsustainable and not a finding that a reasonable arbitrator could have made;

18.3 Despite the Commissioner appreciating her duties, she got ‘entangled in an exercise where she was more concerned with the etiquette which was given to the dismissal, namely poor performance or operational requirements’, and did not apply her mind to the factual basis upon which the evidence in question should be allowed;

18.4 The Commissioner made incorrect findings, e.g, that the first contract was entered into between the Applicant and Bakker, whilst it was explained to her that Bakker initially provided his services to the Applicant via a TES;

18.5 The findings of the Commissioner will deprive the Applicant of an opportunity to explain the dismissal in July 2012, and will result in a grave injustice to the Applicant;

18.6 The Commissioner effectively determined the dispute, which was not required of her at that stage as she dealt at length with her perceived fairness or otherwise of the dismissal;

18.7 The Commissioner failed to appreciate and apply her mind to the fact that it was the Applicant’s case that Bakker was dismissed because of the impact that his behaviour had on the relationship with BHP Billiton, his failure to accept an alternative position at another client, and that fact that this could be construed as a dismissal for operational requirements

[19] In the supplementary affidavit, it was further contended that the Applicant could not explain Bakker’s dismissal without the history and it was almost meaningless, if not impossible to carry on with the arbitration with the current limitation on it regarding the inadmissibility finding of the evidence in question.

[20] In his answering affidavit, Bakker averred that it was invidious for the Applicant to allege that certain evidence was relevant especially that pertaining to allegations of poor work performance that arose during his employment under the TES, when it had nevertheless refused to disclose the reason for his dismissal. He contended that the exact reason for his dismissal remained a mystery as the Applicant still refused to divulge the reason, and further since he was never brought before a disciplinary enquiry.

[21] Bakker conceded that the one piece of evidence that was highly relevant to determining the reason for the dismissal was the letter of 9 July 2012. He however contended that unless the Applicant proved that there was some factual nexus between the allegations of poor work performance and other incidents that allegedly occurred under his employment with the labour broker, and the allegations set out in the letter, evidence of what took place prior to his employment by the Applicant was entirely irrelevant.

[22] Bakker further submitted that the reason for the dismissal must emanate from what took place while he was employed by the Applicant and that the allegations that arose while he was employed by a previous employer are irrelevant because they have no factual nexus to the facts that led to his dismissal. If those allegations are relevant, the Applicant was still precluded from relying on them because it employed him in March 2012 whilst being in possession of all these facts and allegations relating to his alleged poor performance. He contended that it would be a grave injustice to himself if the Applicant was allowed to use the evidence against him in the arbitration proceedings.

Evaluation:

[23] The Applicant in its written heads of argument correctly pointed out that essentially there are two issues for consideration before the Court. The first is whether the Court should entertain the review application in the light of the Commissioner’s ruling being in limine, and before the arbitration proceedings could be completed. It was contended that in the event that the Court finds that the ruling was reviewable in medias res, the next question should be whether evidence related to the circumstances which preceded the employment of Bakker by the Applicant with effect from 1 March 2012 was relevant to his dismissal on 9 July 2012.

[24] In respect of the first issue for consideration, it was submitted that in general, unless an in limine ruling will result in an injustice to anyone involved in arbitration, a court will not interfere through review application in an unfinished arbitration[4]. It was nevertheless submitted that the issue whether the Court should interfere in the arbitration was so intertwined and dependent on the question about relevance of the evidence that the Applicant wished to lead at arbitration, and the impact it would have if the Applicant was not allowed to lead that evidence. It was further argued that the question whether or not to interfere at that stage could not be decided separately from the second issue, i.e whether the evidence was relevant and inadmissible. To this end, Mr van der Westhuizen on behalf of the Applicant further argued that non-interference by the court with the ruling would lead to an injustice.

[25] The insertion of section 158 (1) (B)[5] in the amendment to section 158 of the LRA was preceded by a number of Labour Court decisions which indicated a general reluctance to interfere with in limine rulings made in uncompleted arbitration proceedings. In Road Accident Fund v Commission for Conciliation, Mediation & Arbitration & others[6], Francis J in considering an urgent interdict brought in the light of a ruling which denied a party legal representation at the arbitration proceedings held that the court indeed had the requisite jurisdiction in terms of section 158(1) (g) of the LRA to review interlocutory rulings made by commissioners.

[26] Having referred to Van Niekerk J’s judgment in Trustees for the time being of the National Bioinformatics Network Trust v Jacobson & others[7], Francis J concluded that intervention in uncompleted proceedings by way of interdicts should be limited to exceptional cases. The rationale behind this approach was that interference with uncompleted proceedings undermined the informal system of dispute resolution and frustrated expeditious resolution of labour disputes[8].

[27] In Spar Group Limited t/a Spar South Rand Distribution Centre v CCMA & others[9] Francis J reiterated this approach, and further stated that;

“A worrying trend has developed where parties who are not happy with rulings made by commissioners or arbitrators in uncompleted matters would want to interdict the uncompleted proceedings. This Court may in exceptional cases where a grave injustice might otherwise result or where justice might not by other means be attained, interdict uncompleted proceedings”

[28] In CCD Couriers (Pty) Ltd v Matona, Lena Dimakatso & 11 Others[10], Lagrange J held that;

“Apart from the fact that in the light of this authority there seems little prospect of the review application succeeding, this court is loath to interfere with the informal dispute resolution mechanisms of conciliation and arbitration on a piecemeal basis, except in exceptional circumstances. This not a case where there has clearly been an unlawful act on the part of the arbitrator in the sense that he manifestly acted outside his powers. The applicant has not advanced any other exceptional basis on which the relief should be granted. In this regard, I see no reason why the principles governing intervention in incomplete arbitration proceedings should be different to the principles governing intervention in incomplete disciplinary proceedings. The governing principle laid down by the Labour Appeal Court in Booysen v Minister of Safety & Security & others is equally applicable to incomplete arbitration proceedings in my view.”[11]

[29] Emanating from the authorities referred to as above, the general approach of this court, which I fully align myself with, is that it ought not to intervene in uncompleted arbitration proceedings, unless there were exceptional circumstances. These include inter alia, considerations whether a grave injustice might otherwise result if the court does not intervene, or where justice might not by other means be attained. The Labour Appeal Court in Booysen v The Minister of Safety and Security and Other[12], albeit within the context of a determination of the need to intervene in uncompleted internal disciplinary proceedings, further confirmed that courts should intervene in media res to restrain illegalities. This principle as Lagrange J correctly pointed out in CCD Couriers (Pty) Ltd should equally be applicable in uncompleted arbitration proceedings.

[30] A further reasoning in my view behind this cautious approach is that in limine rulings, with a few exceptions (e.g refusal to grant condonation for the late filing of a dispute), are generally not definitive of the rights of the parties, nor do they have the effect of definitively disposing a claim, or at least a substantial portion of the relief claimed in the main proceedings. Thus no purpose would be served by a piecemeal approach in the light of the available remedies under the provisions of section 145 of the LRA.

[31] In this case, and in circumstances where the preliminary ruling in question pertains to whether certain evidence should or should not be allowed in the arbitration proceedings, the main question to be asked is whether there are exceptional circumstances permitting intervention. It cannot be doubted that where such a ruling would ultimately prevent a fair trial of the issues[13], or impact negatively on the audi alteram partem rule, there would be cause for the court to intervene.

[32] A determination of the above should be made within the context of the provisions of section 138(1) of the LRA[14]. In terms of this provision, an arbitrator is required to determine the manner with which the arbitration should be conducted, bearing in mind the need to determine the dispute fairly and quickly. Furthermore, an arbitrator is required to deal with the substantial merits of the dispute, and in so doing, may or must assist the parties in narrowing down the issues, and thus determine the nature of evidence to be led[15]. Ngcobo J in CUSA v Tao Ying Metal Industries and Others[16] summarised the powers of arbitrators and the purpose of this provision as follows;

“Consistent with the objectives of the LRA, commissioners are required to “deal with the substantial merits of the dispute with the minimum of legal formalities.” This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter-claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to “conduct the arbitration in a manner that the commissioner considers appropriate”. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do.”[17]

And,

“A commissioner must, as the LRA requires, “deal with the substantial merits of the dispute”. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration. What must be borne in mind is that there is no provision for pleadings in the arbitration process which helps to define disputes in civil litigation. Indeed, the material that a commissioner will have prior to a hearing will consist of standard forms which record the nature of the dispute and the desired outcome. The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in.”[18]

[33] The task placed on the Commissioner in terms of the provisions of section 138 (1) of the LRA may however prove to be even more onerous if he or she is not fully versed with the basic facts and circumstances of the particular case and also of the nature of the dispute that should be resolved. It is accepted that arbitration proceedings are not akin to court proceedings, and a measure of informality and latitude is granted in such proceedings. However, the fact that there is no provision for pleadings at arbitration proceedings is not a license for parties to approach such proceedings with the aim of throwing everything and anything at the Commissioner and to expect him or her to make sense of it all. The parties are obliged to assist the Commissioner in establishing at the commencement of arbitration proceedings, what the nature of their dispute is, and it is within the context of admitted and disputed facts that a determination as to the relevance or admissibility of evidence can be made.

[34] A further relevant provision in consideration of the issues before the court is Section 188 of the LRA[19]. It being common cause that Bakker was dismissed, section 192 (2) of the LRA places the onus of proving that the dismissal was fair on the employer. In this case, the Applicant’s response to the Commissioner’s enquiry as to the reason for Bakker’s dismissal was equivocal in the extreme. The Commissioner recorded that the response to her enquiry was that Bakker was dismissed for poor work performance, or in the alternative, on the grounds of the Applicant’s operational requirements. It however need to be emphasised from the transcribed record that the Applicant stated the reason as being related to incapacity, which is different from poor work performance.

[35] Having been afforded an opportunity to make written submissions, the Applicant reiterated that the dismissal was related to incapacity[20], or alternatively, that the dismissal was at the behest of a third party[21]. In these proceedings, Mr van der Westhuizen on behalf of the Applicant relied heavily on the last ground as being the reason for the dismissal. It is accepted that there may be instances where a dismissal is argued to have occurred at the behest of a third party[22]. Be that as it may, the duty was upon the Applicant when the Commissioner made initial enquiries, to categorically state that this indeed was the reason for the dismissal, and not to vacillate in that regard.

[36] The Applicant with its approach to the simple question posed by the Commissioner made the latter’s task of determining what evidence would be relevant even more onerous. To have allowed the Applicant carte blanche in regards to all manner of evidence it sought to lead would have made it untenable to conduct proceedings in an expeditious manner, let alone make it impossible for Bakker to meet the Applicant’s case. One wonders for instance what would have been the relevance of allegations of infidelity against Bakker, or the issue on non-payment of his bonus to the extent that his dismissal is alleged to have been based on incapacity or retrenchment.

[37] The Court is equally placed in an invidious position of having to determine whether certain evidence as identified in the pleadings is relevant or not. It can not be expected of this court to make such a determination as the full facts of this case have not been ventilated at the arbitration proceedings. The court cannot make such a determination in a vacuum, and this goes back to reasons advanced elsewhere in this judgment as to why courts should be reluctant to intervene in uncompleted proceedings.

[38] Notwithstanding the task made more difficult for this court or the Commissioner by the Applicant, at most, it can be said that the parties are in agreement that the basis for the dismissal is the letter of 09 July 2012[23]. To the extent that this is the case, it follows that only evidence pertinent to the reasons specified in that letter will prima facie have relevance to the fairness or otherwise of the dismissal. This in my view is in accordance with the provisions of section 188 (2) of the LRA, which provides that ‘Any person considering whether or not the reason for dismissal is fair or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act’

[39] In this case, it was common cause that the parties had not concluded a pre-arbitration minute. When requested to make a ruling in respect of the admissibility of evidence, the Commissioner was obliged when called upon to do so, to make a ruling in respect of the scope of the evidence to be led, and to exercise her discretion in that regard on a prima facie view of relevance[24].

[40] To the extent that the Commissioner had disallowed the impugned evidence sought to be adduced, and had further clarified in her ruling what evidence would be required in the event that the Applicant relied on either allegations of poor performance or operational requirements for the dismissal, and it being further  common cause that the basis of the dismissal is the letter of 9 June 2012, it cannot be said that the ruling made by the Arbitrator under those circumstances is one that a reasonable decision maker would not have made in the light of the material as placed before her.  

[41] The Applicant’s contention that grave injustice would occur if it were precluded from leading the impugned evidence is misplaced. The evidence identified by the Commissioner in her ruling[25] is indeed the basis of her prima facie findings on relevance. There is no basis therefore to conclude that in coming to that decision in the light of the material and submissions before her, the Commissioner exercised her discretion in that regard unfairly or capriciously.

[42] Having had regard to the facts and circumstances of this case, and more particularly the submissions made before the Commissioner, there is no basis for a conclusion to be reached that her ruling will result in a grave injustice, or a prevention of a fair trial of the issues, or impact negatively on the audi alteram partem rule.

[43] The only concern raised with ruling is that at paragraph 4.21, the Commissioner referred to the letter of 9 June 2012 and concluded that it did not make reference to issues surrounding poor performance or operational requirements, insofar as the Applicant in this case might rely on it in pursuing either ground as a basis for the dismissal. In this judgment, it has been stated that both parties acknowledge this letter as being the basis of a dismissal.

[44] To the extent that the Commissioner had in one way or the other made these findings and other findings that have a bearing on the merits of the dispute without the full facts having been ventilated, and further it being common cause that the full merits of this case have not been dealt with, it is my view that it would be iniquitous to allow her to conclude those arbitration proceedings.

[45] In regards to the issue of costs, and having had regard to the requirements of law and fairness as called upon by the provisions of section 162 of the LRA, I am of the view that the First Respondent should not be burdened with costs in circumstances where he was compelled to oppose this application. To this end, the following ruling is made;

Costs:

(i) The application to review and set aside the in limine ruling of the Second Respondent is dismissed.

(ii) The dispute between the parties is to be re-scheduled for arbitration before a Commissioner other than the Second Respondent.

(iii) The Applicant is ordered to pay to the First Respondent, the costs of this application.

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant: Adv. G van der Westhuizen

Instructed by: Lancaster Kungoane Attorneys

On behalf of the Respondent: D Cartwright of David Cartwright Attorneys

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