Eskom Holdings SOC Limited v National Union of Mineworkers and Others (JR701/18) [2023] ZALCJHB 293 (15 September 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR701/18

In the matter between:

ESKOM HOLDINGS SOC LIMITED

Applicant

and

NATIONAL UNION OF MINEWORKERS

First Respondent

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA (NUMSA)

Second Respondent

SOLIDARITY

Third Respondent

WERNER PAUL KRUGER N.O.

Fourth Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Fifth Respondent

Heard: 14 September 2023

Delivered: 15 September 2023 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 15 September 2023.)

REASONS FOR POSTPONEMENT

PHEHANE, J

Introduction

[1] On 14 September 2023, I handed down the following order:

‘1. The matter is postponed sine die;

2. The applicant is to pay the wasted costs occasioned by the postponement.’

[2] This matter was specially allocated to be heard afresh on 14 September 2023 following the recusal judgment per Mkhwisibo AJ dated 24 May 2023.

[3] At the start of the proceedings, Mr. Mkhatshwa for the applicant, directed the Court to the record of the arbitration proceedings, being page 214 of Volume 4 of the Bargaining Unit Pleadings. It transpired that this portion of the record is not contained in the Court file. This, despite paragraph 3 of the order in the aforesaid judgment by Mkhwibiso AJ, which reads as follows:

‘The applicant is directed to ensure that the record in the Court file is the complete record that the parties intend to rely upon at the hearing of the review application’.

[4] In paragraph [4] of the aforesaid judgment, Mkhwibiso AJ stated that the record that was before him when he heard argument was inconsistent

with the record before the parties.

[5] I proceeded to inform the parties of the record that was before me. Mr. Orr for the first and second respondents informed the Court that the record in his possession differs from what is before the Court; this was the same issue before Mkhwibiso AJ and in the circumstances, the matter could not proceed as it is vital that the parties and the Court refer to the same record before them. Finally, that the applicant ought to pay the costs occasioned by the postponement.

[6] Mr. Mkhwibiso informed the Court that his instructing attorney had attended at Court before the hearing date to ensure that the record in the Court file is complete. He suggested that the parties should attend at Court to ensure that a complete record is in the Court file and that no order as to the payment of costs should be made against the applicant.

[7] This matter has a long history and a voluminous arbitration record. The matter concerns an interest review. The impugned arbitration award dated April 2018 extends the bargaining unit in the applicant to managerial employees. A related dispute by the third respondent at the fifth respondent is stayed pending the outcome of this matter. The parties are not to blame for the delay in finalizing this application. That being said, when this matter was specially allocated for a fresh hearing and given the order by Mkhwibiso AJ as quoted above, it was incumbent upon the applicant to ensure that a proper and complete record is before the Court. For this reason, I ordered that the matter be postponed sine die and that the applicant pay the wasted costs occasioned by the postponement.

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. M. Mkhatshwa Instructed by: Nkosi Sabelo Inc. For the 1st and 2nd respondent: Adv. C. Orr SC Instructed by: Ngako Attorneys