Moolman v Commission For Conciliation, Mediation and Arbitration and Others (JA98/22) [2024] ZALCJHB 339 (22 August 2024)

FLYNOTES:

LABOUR – CCMA – Disclosure of documents – Incomplete arbitration proceedings – Documents did not serve before commissioner or Labour Court – Prematurely and erroneously found documents to be irrelevant without seeing contents or hearing evidence regarding relevancy – Appellant contended documents are critical to establishing claim to reasonable expectation of renewal of fixed-term contract – Court erred in assessing relevance of documents – No grounds to have justified early intervention – Appeal upheld.

THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JA98/22

In the matter between:

COENRAAD

JACOBUS MOOLMAN Appellant and

COMMISSION

FOR CONCILIATION MEDIATION

AND

ARBITRATION First Respondent

MOHAMED RAFFEE N.O Second Respondent

ASIA MINERALS SOUTH AFRICA (PTY) LTD Third Respondent

KUDUMANE MANGANESE RESOURCES (PTY) LTD Fourth Respondent

Heard: 20 March 2024

Delivered: 22 August 2024

Coram: Molahlehi AJP, Nkutha-Nkontwana JA & Jolwana AJA

JUDGMENT

MOLAHLEHI,

AJP

Introduction

[1] This appeal, with the leave of this court, is brought against the order and judgment of the Labour Court, which reviewed and set aside the ruling issued by the commissioner of the Commission for Conciliation Mediation and Arbitration (CCMA) on 27 February 2020 under case number GAJB10352-19. In his ruling, the commissioner directed the third and fourth respondents (respondents) to disclose documents sought by the appellant for use in the arbitration proceedings.

[2] This appeal raises the question of whether this court may validly interfere with the Labour Court’s exercise of discretion in reviewing and setting aside the commissioner's ruling in the circumstances where the arbitration proceedings are incomplete. The ruling, which was the review subject, had directed the respondents to disclose certain documents demanded by the appellant.

Background facts

[3] The background facts in this matter are fairly common cause. The main dispute before the commissioner is whether the appellant was fairly dismissed following several extensions of the fixed-term contracts by the respondents The issue that arose before the commissioner could finalise the proceedings was whether the appellant was entitled to the documents he requested to be disclosed.

[4] The appellant was employed on 4 May 2014 by Asia Minerals South Africa (Asia Minerals) as its president on a fixed-term contract of twelve months before the termination of employment. In the same year, he was seconded and appointed as chief operating officer (COO) of Kudumane Resources (Kudumane Resources), a subsidiary of Asia Minerals, on a three-month fixed-term contract expiring on 5 August 2014.

[5] The appellant was later appointed the acting Chief Executive Officer (acting CEO) of Kudumane Resources on a fixed-term contract that expired on 7 April 2015.

[6] The twelve-month fixed-term contract as president of Asia Minerals was extended on 3 May 2017. In the meantime, the appointment as acting CEO of Kudumane Resources was extended without any indication of the expiry date, except that it was indicated that it would be until further notice.

[7] The appellant's acting position with Kudumane Resources was modified in August 2015 to that of Joint Acting CEO, acting jointly with Mr Gantsho. Kudumane Resources confirmed this in January 2017. However, this position was changed six months later to that of an advisor on a twenty-month fixed-term contract that expired on 4 May 2019.

[8] The following year, in 2018, after appointing the appellant at Kudumane Resources, Asia Minerals appointed the audit firm Price Water Coopers to assist in developing a business strategy referred to as Long-Term Incentive Scheme (Incentive Scheme) for the respondents.

[9] Following the appointment of Price Water Coopers, the respondents' board held a meeting in Hong Kong, which the applicant attended. The appellant was intimately involved in the preparations for the meeting, including the relevant documents. After the board meeting, the chairman of the respondents convened a meeting with the appellant to discuss his employment contract with Asia, which was to expire on 4 May 2019.

[10] According to the Vice Chairman of Asia Minerals and the deponent of the founding affidavit, the understanding between the parties during the meeting was that the appellant’s contract with Asia Mining would not be extended.

[11] On 12 April 2019, the appellant was formally informed of the non-renewal of his employment contract with Asia Minerals and Kudumane Resources. He responded to the e-mail advising him of the company's position and contended that he had a legitimate expectation that his employment would be extended.

[12] Aggrieved by the decision not to renew his employment contract, the appellant referred an unfair dismissal dispute to the CCMA. The matter was at the arbitration hearing's first seating, postponed by agreement between the parties. Before postponing the hearing, the commissioner directed the parties to exchange bundles of documents and hold a pre-arbitration conference.

[13] After the hearing was postponed and in preparation for the next hearing, a dispute arose between the parties concerning the discovery of certain documents listed in Annexures “A” and “B.”[1] The appellant demanded the disclosure of documents appearing in those annexures.

[14] The respondent contended that the appellant was not entitled to the documents that were the subject of disclosure because they were confidential and immaterial to the appellant's case.

[15] Following the refusal to disclose the documents requested, the appellant applied to the CCMA to compel the respondents to discover the documents in question. The commissioner adjudicated the application and ordered the respondents to disclose the documents. In this regard, the commissioner directed the respondents to produce the documents required by the appellant. This ruling aggrieved the respondents who, consequently, applied to have it reviewed by the Labour Court.

[16] I pause here to indicate that the appellant's counsel conceded that document number 4 in annexure “B” may be regarded as irrelevant to the dispute. This document deals with the contract of another employee who is not a party to these proceedings. Accordingly, this document is regarded as irrelevant for this appeal, and thus, the respondents are not required to disclose it.

The commissioner’s ruling

[17] It is apparent from the reading of the ruling that in directing the respondents to discover the documents in question, the commissioner focused on protecting the confidentiality of the documents. In this regard, he referred to paragraph 15 of the appellant's founding affidavit in support of the application to compel disclosure by the appellant. The following is stated in that paragraph:

“15. To the extent that the Respondents claim that [the documents] are confidential, I have no difficulty in giving an undertaking that the documents will be used purely for the purpose of the arbitration hearing and that they will be returned to the Respondent on the completion of the hearing. The fact of the matter is that I am familiar with the documents and the contents thereof, and there can be no issue with them not being disclosed to me previously. The Commissioner can also rule that they constitute confidential

documents, as is often done in restraint of trade matters.”

[18] The commissioner further correctly rejected the contention by the respondents that one of the documents could not be discovered because it was in a draft form.

The judgment of the Labour Court

[19] It is common cause that the arbitration proceedings were incomplete when the Labour Court reviewed the commissioner's ruling. In resolving to intervene early in the incomplete proceedings, the Labour Court correctly noted the general rule that rulings or decisions made during arbitration proceedings may be subjected to review only after the main issue in dispute has been finally

determined. However, the Labour Court resolved to intervene because, in its view, it was just and equitable to do so in the circumstances.

[20] Having resolved to exercise the discretion to intervene in the incomplete proceedings, the Labour Court set aside the commissioner's ruling. It substituted it with an order that the appellant was not entitled to the documents. It set aside the ruling on the basis that the commissioner misdirected himself by failing to apply rule 29 of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA Rules).

[21] In concluding that the commissioner’s ruling deserved to be reviewed and set aside, the Labour Court reasoned that the documents were irrelevant to the dispute between the parties. This point was further emphasised in its judgment for leave to appeal.

[22] The appellant's case on appeal is that the Labour Court should have declined to intervene in the incomplete arbitration proceedings before the CCMA. The second point is that the commissioner's ruling, ordering the respondent to disclose the documents in question, was not susceptible to review because the respondents did not make out a case for gross irregularity.

[23] On the other hand, the respondents contended that the Labour Court exercised its discretion correctly in intervening earlier in the incomplete proceedings and did so in accordance with the provisions of section 158 (1B) of the Labour Relations Act[2] (LRA). They further contended that the appellant sought to compel the discovery of the documents without showing their relevance, and thus, had the respondent complied, it could have resulted in an injustice.

[24] The respondents' other point in opposing the appeal is that the Labour Court correctly held that the commissioner ignored the provisions of rule 29 of the CCMA Rules.

The issues on appeal

[25] As alluded to earlier, the main issue in this matter is whether there is justification for this Court to interfere with the discretion exercised by the Labour Court when it intervened in the incomplete arbitration proceedings that served before the commissioner of the CCMA. In this regard, the first issue to be determined concerns the nature of the discretionary power exercised by the Labour Court when it decided to intervene in the incomplete arbitration proceedings. In intervening in the incomplete arbitration proceedings, the Labour Court excised its powers under section 158 (1B) of the LRA.

[26] In considering whether to interfere with the decision of the Labour Court, this Court has to examine the nature of the discretionary

power exercised by that Court. The examination aims to determine whether there is justification for interfering with such discretion.

The standard to apply in determining whether the Labour Court exercised its power properly is found in the two well-established

categories of discretions noted and confirmed by the Constitutional Court in Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Limited and Another.[3] The distinction between the two discretions is important in various decision-making processes. At the appeal level, the distinction

determines the standard for interfering with the exercise of power by the lower court. In dealing with the test of whether the appellate Court could interfere with the exercise of discretion by the lower Court, the Constitutional Court in Trencon Construction held that:

“Therefore, the proper approach on appeal is for an appellate court to ascertain whether the discretion exercised by the lower court was a discretion in the true sense or whether it was a discretion in the loose sense. The importance of the distinction is that either type of discretion will dictate the standard of interference that an appellate court must apply.”[4]

[27] At the lower level, the distinction assists in determining the extent of the discretionary power to be exercised, including at the level of the CCMA commissioner. The value of the distinction between the two discretions was noted as follows by the full bench of the Western Cape Division in M R v N R [5] :

“The distinction between a true discretion and a loose discretion is not merely one of semantics for the type of discretion will dictate the standard of interference that an appellant court must apply. It is thus critical for an appellate court to ascertain whether the discretion exercised by the lower court was a discretion in a true sense or whether it was a discretion in a loose sense.”

[28] In Trencon Construction[6] the Constitutional Court held that:

“An appellate court must heed the standard of interference applicable to either of the discretions.”

[29] The standard for whether to interfere with the lower court's discretion on appeal is determined by the category of discretion exercised by that Court. In this context, it is widely acknowledged that the appeal Court, in assessing whether there is a valid reason to interfere with the lower Court’s exercise of discretion, is tasked with applying the standard of the specific category to which the discretion belongs. Various terminologies have been employed to describe the two categories of discretions.

[30] The first category of discretion, which is sometimes referred to as discretion in a true sense, discretion in a strict sense or unfettered discretion, is characterised by the repository's power to choose between various permissible courses or options when deciding on an issue or exercising power.

[31] It is generally accepted that where the repository of power has performed his or her function of choosing among the available options or courses, the appeal court would not be entitled to interfere with such an exercise of discretion by substituting that option with its preferred option. In other words, in the court below or in the case of a review of a ruling in mediation or arbitration proceedings, the commissioner is free to decide which of the available and permissible options or courses he or she would adopt.

[32] The definition of discretion, in the true sense, was formulated as follows in Media Workers Association of South Africa and Others v Press Corporation of SA Ltd [7] and accepted by the Constitutional Court in Trencon Construction:

“The essence of a discretion in this narrower sense (the true sense) is that, if the repository of the power follows any one of the available courses, he would be acting within his powers, and his exercise of power could not be set aside merely because a Court would have preferred him to have followed a different course among those available to him.”

[33] This means that a discretion, in the true sense, is exceptionally appealable. In other words, the appeal court would only be justified

to interfere with the exercise of power by the lower Court if it is satisfied that the discretion was exercised (1) capriciously or (2) upon wrong principles, or (3) the discretion was not exercised in an unbiased manner.[8]

[34] In Naylor and Another v Janson[9] the Supreme Court of Appeal (SCA) held that:

“Where the law has given a judge an unfettered discretion, it is not for this court (the SCA) to lay down rules which, whilst purporting to guide the judge, will only have the effect of fettering the discretion. If, therefore, there are factors which the trial court,

in the exercise of its discretion, can and legitimately does decide to take into account so as to reach a different result, a court on appeal is not entitled to interfere ─ even although it may or even probably would have given a different order.”

[35] The Constitutional Court made the same point in Florence v Government of the Republic of South Africa[10] (CC) as follows:

“Where a court is granted wide decision-making powers with a number of options or variables, an appellate court may not interfere unless it is clear that the choice the court has preferred is at odds with the law. If the impugned decision lies within a range of permissible decisions, an appeal court may not interfere only because it favours a different option within the range. This principle of appellate restraint preserves judicial comity. It fosters certainty in the application of the law and favours finality in judicial

decision-making.”

[36] In brief, interference by the appellate court with discretion in the true sense would be justified only when it is shown that it was not judicially exercised.[11]

[37] In contrast to the standard of appealability in the first category, the restrictions applicable in that category do not apply to the second category, discretion in the loose sense, in that an appeal Court has authority, in general, to substitute the decision of the lower court with its own if it concludes that the discretion was wrongly exercised. The discretion in the loose sense is sometimes referred to as discretion in the narrow sense. In M R v N R[12] discretion in the loose sense is described as follows:

“24 Where a discretion in a loose sense applies, an appellate court is equally capable of determining the matter in the same manner as the court of first instance and can therefore substitute its own exercise of the discretion if it considers that the order of the first instance court was wrong.”

[38] However, the above principle does not mean that an appeal court will readily interfere where the discretion in the loose sense applies. In other words, an appeal court will exercise caution before interfering, even when discretion is exercised in a loose sense.[13]. In this regard, the Constitutional Court in Trencon [14] observed:

“However, even where a discretion in the loose sense is conferred on a lower court, an appellate court’s power to interfere may be curtailed by broader policy considerations. Therefore, whenever an appellate court interferes with a discretion in the loose sense, it must be guarded.”

Should the review court have interfered with the ruling?

[39] As alluded to earlier, the issue in this appeal concerns the nature of the Labour Court's exercise of discretionary power to intervene in incomplete arbitration proceedings. This power is governed by section 158(1B) of the LRA.

[40] The general rule of labour law practice, which finds application in both civil and criminal proceedings, is that the Labour Court is discouraged from reviewing any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the CCMA or bargaining councils before the main issue in dispute is finally resolved. The exception to the general rule is that the Labour Court may review such a decision or ruling if it deems it just and equitable to do so.

[41] Section 158(1B) of the LRA provides:

“The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.”

[42] When section 158 (1B) of the LRA was introduced in 2014, the legislative policy considered was to regulate and avoid piecemeal processing of arbitration and mediation proceedings through reviews of interlocutory rulings made by commissioners during those proceedings. This section guides litigants to delay their challenges to interlocutory rulings pending the finalisation of the hearing. In other words, review applications are not encouraged until the award is issued and the arbitration proceedings are finalised.[15] This consideration bears significant weight when the Labour Court considers the exercise of discretion to intervene in uncompleted

proceedings.

[43] It should be noted that the legislature did not introduce a total prohibition on reviews of interlocutory rulings in arbitration and mediation proceedings but rather allowed for an exception to the general rule. As a matter of principle, interference in uncompleted arbitration proceedings through review is only permissible in exceptional

circumstances. The requirement to intervene in exceptional circumstances is underpinned by the legislative policy requiring speedy finalisation of labour disputes, which dictates that the court should not interfere with incomplete proceedings but allow a hearing to run its course. This underscores the importance of the Court's role in ensuring a fair and just resolution, which should strike a balance between the interests of all parties involved. The correct approach to adopt in this regard was set out in South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others[16] as follows:

“A case must be truly exceptional to warrant a departure from the norm that a review is appropriate only once the dispute has been finally determined in a completed arbitration hearing. This is consistent with the statutory purpose of expeditious dispute resolution, which the LRA seeks to achieve.”

[44] The courts have followed the same principle when dealing with applications seeking intervention from the court in incomplete disciplinary hearings.[17] The Labour Court has to consider whether interference in the incomplete proceedings is justified when there is still a review to come once the dispute is finally determined. The starting point in an application of this nature is not to readily interfere when such a request is made but, considering the speedy nature of the arbitration proceedings, allow the process to unfold and wait for the final resolution of the dispute.

[45] In brief, and to emphasize, section 158 (1B) of the LRA envisages a process that, by its definition, allows the Labour Court to interfere in incomplete arbitration hearings in exceptional circumstances.

[46] In general, the Labour Court can intervene in incomplete arbitration proceedings where, if allowed to stand, the ruling would cause

irreparable harm to the other party. The intervention would be justified if it is shown that the damage caused by allowing the

ruling to stand could not be adequately remedied after the finalisation of the arbitration proceedings.[18]

[47] In State Information Technology Agency (SITA) v Commission for Conciliation Mediation and Arbitration,[19] the court correctly intervened when the commissioner erred in ordering the discovery of a privileged document. The harm that the

other party would have suffered had the court allowed the ruling to stand and the privileged documents to be disclosed is that damage would not be adequately addressed upon the conclusion of the main proceedings. The court intervened earlier because the document which the applicant sought to disclose was legally privileged. The court reviewed and set aside the ruling and declared that the applicant was not compelled to disclose the copy of the document required by the respondents.

[48] Similarly, the Labour Court in South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Mediation Conciliation and Arbitration and Others[20] the Labour Court intervened earlier on the ground that the document required by the respondent was patently irrelevant to the dispute.

[49] The test for determining whether it is just and equitable to intervene and review an interlocutory arbitration ruling of a commissioner by the Labour Court differs from that of review in general. The test to apply once the Labour Court has formed an opinion to intervene

earlier before the completion of the proceedings is whether the commissioner, in issuing the ruling, committed a material irregularity. In other words, the reasonable test to determine whether a commissioner's ruling is reviewable, as envisaged in Sidumo and Another v Rustenburg Platinum Mines Ltd[21] does not apply. The threshold in matters of this nature is for the applicant first to show that the commissioner committed a gross

irregularity arising from a material error of law. To sustain a complaint about the error in law, an applicant has to show that the error in law was material.[22]

[50] Applying the above principles, the Labour Court should have declined to intervene in the incomplete arbitration proceedings because the respondents failed to show exceptional circumstances for early intervention.

[51] In the circumstances, this Court is justified in interfering with the Labour Court's decision. Accordingly, the appeal stands to succeed on this basis alone. This means that the Labour Court's decision should be set aside and substituted with the decision that the review application of the commissioner's ruling should be dismissed and the respondents ordered to comply.

Is the ruling reviewable?

[52] Furthermore, the Labour Court erred in assessing the relevance of the documents in question without the same being placed before it. There are thus no grounds to have justified the early intervention of the Labour Court. There are also no grounds justifying its finding that it was just and equitable to intervene in the incomplete arbitration proceedings. No case was made out that the

respondents would suffer irreparable harm if they were to comply with the ruling and possibly challenge it upon conclusion of the hearing.

[53] As stated earlier, the test for reviewing a ruling such as the present is not whether the ruling is one that a reasonable commissioner could have made but rather whether the commissioner committed gross irregularity as envisaged in section 145 (2) (a) of the LRA.[23]

[54] The issue to consider in this matter is if it was to be found that the Labour Court was correct in the manner it exercised its discretion of intervening in the incomplete arbitration proceedings, whether the respondents have made out a case that the commissioner committed an error of law and whether such error was material to have justified the review. The issue of whether the commissioner's conduct amounted to gross irregularity turns on whether the commissioner's ruling, based on the material before him, was legally correct in finding that the documents in issue are relevant to the determination of the dispute formulated by the appellant in his pleadings.

The law relating to discovery

[55] The purpose of discovery, as provided in the rules, is to ensure that all documents relevant to the dispute resolution are available to all the parties involved in the litigation.

[56] In civil proceedings, the question of relevance is linked to pleadings. In this respect, the Court in Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa and others,[24] held that:

"In determining relevance regard can only be had to allegations contained in the plaintiffs' particulars of claim."

[57] It is a trite principle of our law that a litigant must discover documents relevant to any pleaded issue in dispute. A document is generally said to be relevant if it contains information which may either directly or indirectly enable the party requiring it to either advance his/her case or damage the case of his/her adversary[25]. The concept of relevance was defined in Caxton and CTP Publishers and Printers v Novus Holdings Limited[26] as follows:

“By relevance is meant that the document or tape recording in question ‘might have evidentiary value’ or ‘might assist’ the party seeking production in relation to any ‘aspects or issues that might arise’ in light of the facts stated in the pleadings or affidavits.”

[58] The test to apply in determining whether a document called upon to be disclosed or discovered is relevant to any matter under consideration

was set out in the English case of Compagnie v Finance et Commerciale du Pacifique v Peruvian Guano Co (1882),[27] which was subsequently adopted and accepted as part of the South Africa law.[28]

[59] The test to apply in determining the relevancy of a document called upon to be disclosed is set out in Peruvian Guano as follows:

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit (the document) either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”

[60] The process underlying the discovery and disclosure of relevant documents is underpinned by the consideration of ensuring a fair trial. This is noted by the Constitutional Court in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as amicus curiae) In re: Masetlha v President of the Republic of South Africa and another,[29] when it said:

"Ordinarily courts would look favourably on a claim of a litigant to gain access to documents or other information reasonably required to assert or protect a threatened right or to advance a cause of action. This is so because courts take seriously the valid interest of a litigant to be placed in a position to present its case fully during the course of litigation. Whilst weighing meticulously where the interests of justice lie, courts strive to afford a party a reasonable opportunity to achieve its purpose in advancing its case. After all, an adequate opportunity to prepare and present one’s case is a time-honored part of a litigating party's right to a fair trial.”

[61] In the present matter, the Labour Court reviewed the commissioner's procedural ruling because the documents were irrelevant. The respondents' argument, which the Labour Court accepted, was that the appellant had failed to show the relevancy of the documents in question in relation to the dismissal dispute. They contended that, as indicated earlier, the contract had expired through effluxion of time, and the appellant had accepted that position in a meeting with a representative of the respondents. As indicated earlier, the court also found that the commissioner’s ruling was reviewable on the ground that the commissioner ignored the

provisions of rule 29 (3) of the CCMA Rules, which empowered him to take into account the relevancy of the documents in question as a criterion for determining whether the respondent was obliged to disclose same.

[62] In these circumstances, the starting point was to consider whether the commissioner's ruling failed to comply with the provisions of rule 29 of the CCMA Rules[30]. Rule 29, which provides as follows, governs the discovery of documents in arbitration proceedings:

“(1) At any time after the request for arbitration, either party may request a commissioner to make an order as to the disclosure of relevant documents or other evidence.

(2) The parties may agree on the disclosure of documents or other relevant evidence.”

[63] The main feature of rule 29 of the CCMA Rules, similar to those of rules 35 (3) and 35 (12) of the Uniform Rules of the High Court, is that either party may request the other party to disclose any document relevant to the issue in dispute. The central criteria for determining whether any party has to disclose any document in proceedings before a commissioner is whether such a document is relevant to an issue in dispute.

[64] Rule 29 of the CCMA Rules provides a commissioner with the freedom to determine the process relating to how the arbitration process would be conducted. The flexibility provided in terms of the broader legislative framework, also built into rule 29 of the CCMA rules, allows for discovery during the proceedings and allows the commissioner to mero motu call for the disclosure of documents. In this context, the commissioner can make an ex tempore ruling regarding the disclosure of the documents or issue a ruling without reasons, with the reasons to be included in the award in the main dispute.

[65] The rule has to be understood within the broader policy of the LRA, which commands commissioners to deal with disputes expeditiously with minimum legal formalities.[31]

[66] It follows that having regard to the broad statutory powers given to a commissioner to conduct arbitration proceedings in the manner he or she deems fair and equitable, there was no justification for the Labour Court in the present matter to have interfered with the commissioner's procedural ruling. The documents sought by the appellant are clearly relevant and would accordingly qualify to be disclosed. They were requested in the context where the appellant claimed that he had reasonable expectations of the renewal of his employment contract. According to him, the documents are intended to indicate the intention of the respondents to include him in the long-term incentive program. If finally established in evidence, this would support the claim for a reasonable expectation of continued employment.

[67] Furthermore, the Labour Court erred in reviewing and setting aside the commissioner's ruling in this matter because the respondents made no case that the commissioner committed a gross irregularity in ordering the disclosure of the documents. The commissioner had broad discretion to order or refuse the applicant's request to disclose the documents.

[68] There is no dispute that the documents in question did not serve before the commissioner or the Labour Court. Instead of allowing the issue of the documents' relevancy to be fully ventilated during the arbitration hearing, the Labour Court prematurely and erroneously found the documents to be irrelevant without seeing the contents or hearing evidence as to their relevancy.

[69] It should be noted that if, upon a proper inquiry during the arbitration hearing, it was found that the documents were irrelevant, they would be discarded and excluded from considering whether the reasonable expectation for the extension of the employment contract existed.

[70] The respondent's argument was not that the documents were irrelevant to the appellant's case but to their case. In opposing the application for disclosure, the respondents relied on confidentiality. They also contended that the appellant sought the documents for ulterior motives.

[71] The issue of whether a litigant can refuse to discover documents purely based on confidentiality was dealt with in Crown Cork and Seal Co Inc and Another v Rheem South Africa (Pty) Ltd and others,[32] where the court held that confidentiality is not in itself a ground of privilege. In Governing Body, Hoërskool Fochville and others v Centre for Child Law,[33] the court held that there was clear authority that confidentiality "does not trump the (discovery)" under rule 35 (12) of the Uniform Rules.

[72] The courts often resort to a confidentiality regime to balance the interests of parties in a dispute over discovery or disclosure. In Masetlha, the Constitutional Court held that whenever there is a claim for confidentiality over a call for discovery or disclosure of documents,

consideration of fairness comes into play. In balancing the interests of both parties, the court will consider the protection of the property of the objecting party in the form of confidential information and the need to ensure that the other party is not

hindered in presenting its case. [34] In Helen Suzman Foundation v Judicial Service Commission[35] the Constitutional Court held that:

“a court that has found the information in issue to be confidential has a discretion to make an order concerning access to it…”

[73] The CC further held that confidentiality regimes are not meant to be foolproof, as that is not the standard, but rather that they can be fashioned in as strict a sense as necessary to protect the interests of the parties.

[74] In the present matter, the commissioner accepted the respondents' concerns and made an order to address them by directing the appellant to return the documents upon the conclusion of the hearing. The courts often adopt this approach when faced with the confidentiality issue of disclosing privileged documents.

[75] The commissioner's ruling in this matter is not a model of clarity. However, the ruling is supported by the material that served before the commissioner. The commissioner ordered the discovery of the document based on the above factual background, which reveals that the respondents employed the appellant over six years. One contract’s extension was left open-ended with no expiration date. He also pleaded in the alternative that he had a legitimate expectation that that contract would be extended.

[76] The appellant contended that the documents are critical to establishing his claim to a reasonable expectation of renewal of the fixed-term contract with Asia Minerals.

Costs

[77] It is trite that in labour matters, the court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirement of the law and fairness. In determining this issue, I considered the submissions made by both parties. In the case of the appellant, it was contended that the cost of the suit should follow the result. The matter involves an individual litigant who sought to assert his right against an unfair dismissal.

[78] On the other hand, the respondent contended that they should not be burdened with costs should they be unsuccessful in opposing the appeal. According to them, the proceedings were launched with good intentions, and they did not delay in the prosecution thereof.

In my view, the requirements of the law and fairness do not dictate that costs should follow the results. It appears to me that fairness favour that no order as to costs should be made.

[79] In the result, the following order is made:

Order

1. The appeal is upheld.

2. The judgment of the Labour Court is set aside and replaced with the following order:

i.The review application is dismissed, and the respondents are to comply with the ruling issued by the commissioner that they should disclose the documents requested by the appellant except for document number 4 in -Annexure “B”.

3. There is no order as to costs.

Molahlehi AJP

Nkutha-Nkontwana JA and -Jolwana JA concur.

APPEARANCES:

For the Appellant: Adv GA Fourie SC Instructed by: Brian Bleazard Attorneys For the Respondent: Ms T Makamu Instructed by: Maserumule Attorneys

[1] See: Caselines page 002-187 where Annexure "A" and “B” listed documents for discovery by the first respondent. The documents listed in Annexure “A namely: “1. The Agreement between AML and SRK in 2019 to review the strategic plan and the budget for the Financial Year 2020.

2. The Financial year 2020 Budget presented at the 2019 meeting of Directors of AML. Annexure "B” listed documents of the second respondent, namely: 1. The ACR Long Term Incentive documents as reviewed in March 2019 ss for the ApifI2019 for the April 2019 Board Meeting of Directors of KMR; 2. The extracts from the Minutes of the Meeting of Directors of KMR of April 2019 dealing with the Long-Term Incentive Scheme; 3. The Technical Service Agreement; between Kudumane Manganese Resources (Proprietary) Limited and Kudumane Investment Holding

Limited dated 2 May 2012; 4. The contract of employment between KMR and Sechaba Letaba and the settlement agreement between Sechaba Letaba and KMR; The KMR FY2020 Letter of Intent issued by the KMR JCEOs dated 10 January 2019, dealing with the company strategy and the budget planning process; The KMR FY2020 Production and Sales Guidance document issued in the KMR JCEOs dated 10 January 2019; 5. The KMR FY2020 Letter of Intent issued by the KMR JCEOs dated 10 January 2019, dealing with the company strategy and the budget

planning process; 6. The KMR FY2020 Production and Sales Guidance document issued in the KMR JCEOs dated 10 January 2019; 7. The RDP and Life of Mine Plan (LOM) for KMR developed during the last quarter of 2018 and the first quarter of 2019.

8. The Budget for Financial Year 2020 as presented to the Board of Directors of KMR together with the Salaries Budget for KMR for 2020.”

[1] See: Caselines page 002-187 where Annexure "A" and “B” listed documents for discovery by the first respondent. The documents listed in Annexure “A namely:

“1. The Agreement between AML and SRK in 2019 to review the strategic plan and the budget for the Financial Year 2020.

2. The Financial year 2020 Budget presented at the 2019 meeting of Directors of AML.

Annexure "B” listed documents of the second respondent, namely:

1. The ACR Long Term Incentive documents as reviewed in March 2019 ss for the ApifI2019 for the April 2019 Board Meeting of Directors of KMR;

2. The extracts from the Minutes of the Meeting of Directors of KMR of April 2019 dealing with the Long-Term Incentive Scheme;

3. The Technical Service Agreement; between Kudumane Manganese Resources (Proprietary) Limited and Kudumane Investment Holding

Limited dated 2 May 2012;

4. The contract of employment between KMR and Sechaba Letaba and the settlement agreement between Sechaba Letaba and KMR;

The KMR FY2020 Letter of Intent issued by the KMR JCEOs dated 10 January 2019, dealing with the company strategy and the budget planning process; The KMR FY2020 Production and Sales Guidance document issued in the KMR JCEOs dated 10 January 2019;

5. The KMR FY2020 Letter of Intent issued by the KMR JCEOs dated 10 January 2019, dealing with the company strategy and the budget

planning process;

6. The KMR FY2020 Production and Sales Guidance document issued in the KMR JCEOs dated 10 January 2019;

7. The RDP and Life of Mine Plan (LOM) for KMR developed during the last quarter of 2018 and the first quarter of 2019.

8. The Budget for Financial Year 2020 as presented to the Board of Directors of KMR together with the Salaries Budget for KMR for 2020.”

[2] No. 66 of 1995, as amended.

[3] 2015 (5) SA 245 (CC). The categorisation c seems to have its firm establishment in Ex parte Neethling and Others 1951 (4) SA 331 (A) at 335D-E.) However the Court in that case did not draw a distinction between the two categories of discretion but held that an appeal court will be justified to interfere with the decision of the of the court a quo only if it is satisfied that the discretion was exercised capriciously or upon the wrong principle or the court a quo had no substantive reasons for its conclusions. This position was considered in Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd and Another, 1989 (4) SA31 (T) where the Court held that discretions fall into two categories, namely (i) discretion closely connected to the Judges control, the conduct and the submission (ii) where the discretion relates to the matters hearing the character and being ‘equally appropriately determinable by the court of first instance and the court of appeal.

[4] Trencon Construction (Id fn 3) at para 83.

[5] [2023] ZAWCHC 15 (13 February 2023) at para 20.

[6] Trencon Construction (Id fn 3) at para 87.

[7] [1992] ZASCA 149; 1992 (4) SA 791 (A) at 800D-E.

[8] See:

MWASA v Press Corporation of SA Ltd (Ibid) at 800 D-E, a discretion in the true sense was referred to as a narrow discretion.

[9] 2007 (1) SA 16 (SCA) at para 14.

[10] 2014 (10) BCLR 1137 (CC) at para 113.

[11] See: Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council and Another 1999 (4) SA 799 (W) and Giddey NO v JC Barnard and partners [2006] ZACC 13; 2007 (5) SA 525 (CC).

[12] M R v N R (Id fn 5) at para 24.

[13] See: Giddey No v J C Barnard and Partners 2007 (5) SA 525 (CC).

[14] Trencon Construction (Id fn 3) at para 87.

[15] See:

DEPACU obo Mphela and Others v Commission for Conciliation, Mediation and Arbitration and Others [2020] ZALCJHB 232 (22 October 2020).

[16] (2020) 41 ILJ 493 (LC) at para 14. In both their heads of argument, the parties agreed that the Labour Court can intervene in uncompleted arbitration proceedings, only in exceptional circumstances.

[17] See: Booysen v Minister of Safety and Security and Others [2011] 1 BLLR 83 (LAC) at para 54, where it was held; “To answer the question that was before the court a quo, the Labour Court has jurisdiction to interdict any unfair conduct including

disciplinary action. However, such an intervention should be exercised in exceptional cases. It is not appropriate to set out the test. It should be left to the discretion of the Labour Court to exercise such powers having regard to the facts of each case. Among the factors to be considered would in my view be whether failure to intervene would lead to grave injustice or whether justice might be attained by other means. The list is not exhaustive.”

[18] See: Zondo and Another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC); Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC), where the court at para 17 of its judgment said: “Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters generally best dealt with in arbitration proceedings consequent on any allegation if unfair dismissal and if necessary, by this court in review proceedings under s 145.”

[19] [2019] 9 BLLR 962 (LC).

[20] [2021] ZALCJHB 23 (1 Match 2021).

[21] [2007] 12 BLLR 1097 (CC).

[22]

SASCOC (Id fn 20) at para 7.

[23] Section 145(2) (a) of the LRA provides: “(2) A defect referred to in subsection (1), means— (a) that the commissioner— (i) committed misconduct in relation to the duties of the commissioner as an arbitrator; (ii) committed a gross irregularity in the conduct of the arbitration proceedings; or (iii) exceeded the commissioner’s powers; or (b) that an award has been improperly obtained.”

[23] Section 145(2) (a) of the LRA provides:

“(2) A defect referred to in subsection (1), means—

(a) that the commissioner—

(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or

(iii) exceeded the commissioner’s powers; or

(b) that an award has been improperly obtained.”

[24] 1999 (2) SA 279 (T) at p. 325 H-I.

[25] See: Swissborough (Ibid) at p. 317 G-H.

[26] [2022] All SA 229 (SCA).

[27] 11 QBD 55.

[28] See: Rellams (Pty) Ltd v James Brown and Hamer Ltd 1983 (1) SA 556 (N).

[29] 2008 (5) SA 31 (CC) at para 25.

[30] Rule 29 of Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration, 2015 (GNR.223 of 17 March 2015).

[31] See: SASCOC (Id fn 20) at para 12.

[32] 1980(3) SA 1093 (W) at 1099, G.

[33] 2014 (6) SA 561 (GJ). In Alfred Crompton Amusement Machines Ltd v Customs and Excise Comrs (No 2) [1973] 2 All ER 1169, the court held that the confidentiality of documents sought to be discovered was but one of the factors to be considered. The court further held that absent additional grounds, confidentiality alone was insufficient.

[34] Masetlha (Id fn 29). See also: Crown Cork (Id fn 32) and Centre for Child Law v The Governing Body of Hoërskool Fochville [2015] 4 All SA 571 (SCA) and the English case of Re Barlow Clowes Gilt Managers Ltd [1991] 4 All ER 385 where it was held that the court in dealing with the issue of confidentiality will weigh up the competing interests for and against disclosure.

[35] 2018 (4) SA 1 (CC).