MTamila v Samancor Western Chrome Mines and Others (J 1541/23) [2023] ZALCJHB 324 (23 November 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

CASE NO: J 1541/23

In the matter between:

BERKERLY M’TAMILA Applicant And

SAMANCOR

WESTERN CHROME MINES First Respondent

UASA – THE UNION Second Respondent

NICOLAAS

JACOBUS NAUDE Third Respondent

COMMISSIONER STEYN FOURIE N.O. Fourth Respondent

COMMISSION FOR CONCILIATION, MEDIATION AND ARBITATION Fifth Respondent

Delivered: 23 November 2023

(The reasons was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 23 November 2023.)

REASONS FOR ORDER

VAN NIEKERK, J

[1] On 22 November 2023, I dismissed the present application, with no order as to costs. These are my reasons for that order.

[2] The applicant was previously employed by the first respondent. He was dismissed after a disciplinary hearing and on 27 July 2022, he referred a dispute to the CCMA in which the substantive and procedural fairness of his dismissal were contested. The matter was ultimately referred to arbitration. At the time, the applicant was represented by the second respondent (UASA) and in particular by a union official, the third respondent. The third respondent acted as the applicant’s representative at a pre-arbitration conference. At the conference, on 18 January 2023, the third respondent signed a pre-arbitration minute. In short, the applicant contends that the pre-arbitration minute had been signed in circumstances where its terms were in direct conflict and in contradiction with the terms of his referral to the CCMA, and that the third respondent concluded the minute without the applicant’s knowledge. UASA withdrew as the applicant’s representative after the applicant had addressed a letter to UASA regarding the conduct of the third respondent. The matter ultimately came before the fourth respondent (the Commissioner).

[3] In a ruling dated for October 2023, the commissioner records that the issue that served before him was whether ‘the purported pre-arbitration minute concluded between the respondent and the UASA official on behalf of the applicant is binding or not.’ The arbitrator refers to affidavits submitted by various persons and submissions made on behalf of both the applicant and the first respondent. In his analysis of the parties’ submissions, the Commissioner records that will 20 of the CCMA rules regulates the framework of the pre-arbitration conference and obliges both parties to hold such a conference and to file a pre-arbitration minute. The commissioner records further that generally, the CCMA will hold parties to a pre-arbitration minute and although not specifically requested, in effect, the applicant was seeking the variation or rescission of the pre-arbitration agreement and to supplement that agreement. The Commissioner concluded that the relief sought by the applicant was not contemplated by the framework of section 144 and that the matter was to be set down for an arbitration hearing in terms of the signed pre-arbitration agreement. The Commissioner suggested that should the applicant intend to pursue the matter in this court, he should give the CCMA an indication to this effect.

[4] In these proceedings, on the one hand, the applicant seeks to set aside the pre-arbitration agreement on the basis that it was ‘deceitfully signed’ by the first and third respondents. On the other hand, the applicant seeks to review and set aside the ruling issued by the Commissioner directing that the matter be set down for an arbitration hearing to be conducted in terms of the existing pre-arbitration agreement, and to interdict the arbitration proceedings scheduled for 23 November 2023, pending the conclusion of ‘a proper pre-arbitration agreement’.

[5] At the hearing of the application, and in response to the court pointing out that the nature of the relief sought was far from clear, the applicant’s representative initially pursued the remedy of review. The applicant’s representative could not explain why application had not been filed in accordance with Rule 7A, and why there was no record (in circumstances where the ruling makes clear reference to affidavits filed by the parties). While the founding affidavit makes scant reference to what might be generously construed as averments of reviewable irregularities on the part of the Commissioner, there is no reference to the basis for review nor are any doubt grounds for review articulated. On this basis alone, the application stands to be dismissed.

[6] To the extent that the applicant sought a substantive order that the pre-arbitration agreement be set aside, the court raised with the applicant the issue of jurisdiction and invited the applicant’s representative to point to a provision in the LRA or any other legislation that confers jurisdiction on this court to determine the validity of a pre-arbitration agreement concluded under the auspices of the CCMA. The Constitutional Court had occasion recently to recall that this court is a creature of statute and that its jurisdiction can be invoked only by reference to specific jurisdiction-conferring provisions (see Baloyi v Public Protector and Others 2021 (2) BCLR 101 (CC)). The applicant was unable to point to any statutory provisions that confer jurisdiction on this court to set aside pre-arbitration agreements concluded under the auspices of the CCMA. This court has no inherent power of supervision over the CCMA and its processes; the scope of intervention limited to the remedy of review, and in a few instances, appeal. To the extent that the applicant has

sought to invoke the remedy of review, this is a matter that has been dealt with and determined above. To the extent that the applicant

relies on the submission that the terms of the Commissioner’s ruling contemplate a referral to this court of the dispute about the validity of the pre-arbitration agreement, that is not a basis on which this court might acquire jurisdiction. It seems to me that the dispute concerning the validity of the pre-arbitration agreement is a matter internal to the CCMA and that it ought properly to be dealt with on that basis. In any event, as the first respondent’s counsel points out, there are a host of factual disputes regarding the conclusion of the pre-arbitration agreement, none of which are suitable for determination by way of motion proceedings.

[7] In short, the applicant has failed to make out a case for the relief he seeks either by way of an application to review and set aside the Commissioner’s ruling that the arbitration proceeds on the basis of the existing pre-arbitration agreement, or by way of an application to declare invalid or otherwise set aside that agreement.

[8] In relation to costs, the rule applicable in this court is that the court ought to be loath to make orders for costs against individual employees who in good faith seek to vindicate what they perceived to be their rights. For the purposes of section 162, the requirements of the law and fairness are best served by each party bearing its own costs.

[9] For these reasons, the application was dismissed with no order as to costs.

André van Niekerk

Judge of the Labour Court of South Africa