Harris and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR2019/11; J1748/11) [2011] ZALCJHB 73; [2012] 2 BLLR 178 (LC); (2012) 33 ILJ 408 (LC) (26 August 2011)

Harris and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR2019/11; J1748/11) [2011] ZALCJHB 73; [2012] 2 BLLR 178 (LC); (2012) 33 ILJ 408 (LC) (26 August 2011)

The court found that the subpoenas issued by the CCMA were invalid as they were not signed by the director, nor by a person with properly delegated authority as required by section 142(2) of the Labour Relations Act. The Commissioner who signed the subpoenas was not authorised to do so, and the court lacked the power to condone or rectify this statutory defect. The application to condone non-compliance was dismissed. The court declined to award costs to the applicants, noting that the decisive point was raised late and that their success was due to a procedural lapse rather than substantive merit.

Citation
[2011] ZALCJHB 73
Parties
Applicant: Nico Harris and Five Others; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Virgil Rabie; Respondent: Eskom Holdings SOC Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 August 2011
Case Number
JR2019/11; J1748/11
Procedural Posture
Review Application / Application to Set Aside CCMA Subpoenas and Condonation for Non Compliance
Outcome
Application to set aside subpoenas granted; application for condonation dismissed; no costs order.
Judges
R Lagrange
Legal Topics
Subpoena Authority, Labour Relations Act Section 142, Arbitration Procedure, Costs Award
Labour Law Civil Procedure Subpoena Authority Labour Relations Act Section 142 Arbitration Procedure Costs Award

Case Brief

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Parties

Nico Harris and Five Others

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Virgil Rabie

Respondent

Eskom Holdings SOC Limited

Respondent

Procedural Posture

Review Application / Application to Set Aside CCMA Subpoenas and Condonation for Non Compliance

Legal Issues

  1. 1 Whether the subpoenas issued by the CCMA complied with section 142(2) of the Labour Relations Act.
  2. 2 Whether the court may condone non-compliance with the statutory requirement for signature by the director.
  3. 3 Whether the applicants are entitled to a costs order.

Ratio Decidendi

The court found that the subpoenas issued by the CCMA were invalid as they were not signed by the director, nor by a person with properly delegated authority as required by section 142(2) of the Labour Relations Act. The Commissioner who signed the subpoenas was not authorised to do so, and the court lacked the power to condone or rectify this statutory defect. The application to condone non-compliance was dismissed. The court declined to award costs to the applicants, noting that the decisive point was raised late and that their success was due to a procedural lapse rather than substantive merit.

Court Disposition

Application to set aside subpoenas granted; application for condonation dismissed; no costs order.

Orders

  • The subpoenas issued by the CCMA to the first to sixth applicants are set aside for want of compliance with section 142(2) of the Labour Relations Act.
  • The application to condone the subpoenas' non-compliance with section 142(2) of the Labour Relations Act is dismissed.