Commission for Conciliation, Mediation and Arbitration and Another v Dyasi and Another (P 71/2020) [2020] ZALCJHB 238 (26 September 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: P 71/2020

In the matter between:

COMMISSION FOR CONCILIATION, MEDIATION

AND

ARBITRATION

First

Applicant

ANTHONY MARE N.O Second

Applicant

and

EUGENIO DYASI

First

Respondent

LYNTON

MCGILL

Second Respondent

Heard:

25 September 2020 (Decided on the papers)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 26 September 2020 at 10:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] Following an ex parte application, this Court (Per Lallie J) had issued an order on 14 August 2020 in the following terms;

1. “The First and second Respondents appear in the Labour Court on 25 September 2020 at 10h00 in terms of section 142(10(a) of the Labour Relations Act 66 of 1995, as amended, (the LRA), as they have been found guilty of contempt of the first applicant, by the second applicant, to show cause if any, why the second applicant’s finding of contempt of the first applicant should not be confirmed for failing to comply with subpoenas issued by the first applicant under case number ECEL 2579 13, dated 27 June 2018 in respect of the arbitration proceedings held on 30 July 2018.

2. The respondents may explain their conduct by way of affidavit on the date of the hearing or before that date (although this will not excuse them from being present in Court.)

3. In the absence of providing an explanation to the satisfaction of this Honourable Court, or failing to appear despite being properly served, the Court should confirm the second applicant’s finding of contempt in respect of the respondents and further order that;

a. On confirmation of the second applicant’s finding of contempt, the respondents be incarcerated for such period as this Honourable Court deems appropriate; alternatively, that the respondents be fined in an amount this Honourable Court deems appropriate; alternatively, that the respondents be dealt with in a manner deemed appropriate by this Honourable Court; and

b. The respondents be ordered to appear for questioning before the first applicant, on a date to be determined by the first applicant, at the arbitration hearing under CCMA case number ECEL 2579 – 13 until excused by the first and second applicants

4. Any sanction imposed by this Honourable Court, pursuant to the confirmation of the second applicant’s findings of contempt, be suspended on condition that the respondents comply fully with paragraph 3(b) above.

[2] Upon receipt of a copy of the order, only the second respondent had filed an affidavit. A copy from ‘Expert Tracing’ was filed by the applicants which indicate that this entity was unable to locate the first respondent or his whereabouts despite a search.

[3] The first respondent however in his affidavit averred that he had previously responded to subpoenas in the matter before the CCMA and was excused. He denied having received further subpoenas in July 2018, but was willing to co-operate with the CCMA in an attempt to resolve the matter even though he has no documentary material relevant to the facts of the case.

[4] According to the applicants, and more particularly as can be gleaned from the second applicant’s contempt ruling, the respondents are critical witnesses in a dispute currently before the second applicant. They were previously employed by Wholesale Housing Supplies Limited, an entity that was alleged to have unfairly dismissed six members of SACCAWU.

[5] The matter before the second applicant has a long history dating back to 2014, which was previously before another Commissioner, the late Mr Mrwebi. Another Commissioner, Mr Nduzulwana took over the matter in October 2017. It subsequently came to another Commissioner (Randall), and resulted being before the second applicant who had to hear it afresh. At the proceedings before the late Commissioner Mrwebi, the respondents had testified. But as a consequence of the matter having to be heard afresh, the respondents

were then required to avail themselves again.

[6] For the purposes of the proceedings before the second applicant, the respondents were then properly served with the subpoenas to attend the re-scheduled hearing. It is averred that the respondents failed to respond to three subpoenas. When the arbitration hearing scheduled for 30 July 2018, again, the respondents failed to make an appearance at the hearing, resulting with contempt proceedings being initiated against them. In his ruling issued on 15 August 2018, the second applicant had granted

the respondent an opportunity to make submissions to the first applicant within 14 days as to the reason why their conduct did not amount to contempt. It appears that the respondent did not file any submissions, resulting in this matter being referred to this Court for confirmation of the contempt finding.

[7] I have had regard to the first respondent’s submissions in his affidavit, and even though he has indicated an intention to cooperate with the applicants, his explanation as to why he had not responded previously to the subpoenas is not convincing in view of a return of service issued on 4 July 2018 by the Sheriff as attached to the founding affidavit. A similar return of service in respect of the second applicant was also issued by the Sheriff.

[8] Under the provisions of section 142(8)(a) to (i) of the LRA, a person who has been subpoenaed and without good cause fails to appear before the Commissioner, or, if having appeared in response to a subpoena, fails to remain in attendance, commits contempt of the Commission. In this case, the requirements for a contempt finding were made.

[9] In the light of the above, there is no basis in law or otherwise why the contempt findings of the second applicant should not be confirmed, in the light of three subpoenas issued to the respondent which they had failed to respond to. Equally so, despite two opportunities being granted to them to explain their conduct (first by the second applicant in his ruling, and second, through the order granted by Lallie J), the respondents have not done so.

[10] The first respondent’s affidavit as already concluded falls short of a satisfactory explanation, and his undertakings in the light of his previous conduct is not any assurance that the same conduct will not be repeated. On the other hand, the respondents’ conduct appear to demonstrate wilfulness on their part not to comply with the subpoenas. To the extent that the second respondent had also not bothered to file any submissions, a confirmation of the ruling is even more appropriate. Equally appropriate is a sanction of incarceration for a period of 3 (three months), which will serve as a deterrent for any such future conduct on the part of the respondents.

[11] Accordingly, the following order is made;

Order:

1. The Second Applicant’s finding of contempt in respect of the First and Second Respondents issued on 15 August 2018 is confirmed.

2. The First and Second Respondents are to be committed to imprisonment for a period of three (3) months for contempt of court.

3. The First and Second Respondents are ordered to appear for questioning before the First Applicant (CCMA), on a date to be determined by the CCMA, at the arbitration hearing under CCMA case number ECEL 2579 – 13, until excused by the CCMA and the Second Applicant.

4. The sanction imposed as in paragraph 2 above, shall be suspended on condition that the First and Second Respondents comply fully with paragraph 3 above.

5. There is no order as to costs

______

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa