State Information Technology Agency SOC Ltd (SITA) v CCMA

Forensic report privileged and as parties are entitled to a fair hearing and ito s 158(1)(g) of the LRA the labour court reviewed and set aside a ruling requiring employer to disclose the report. 

“At arbitration proceedings parties present evidence in order to advance their respective cases. The evidence required is one that would address the issue in dispute. The ruling to compel the applicant to provide a copy of a report (documentary evidence), which would not advance Setumu’s case, is nothing but harassment of the applicant as a party to the arbitration proceedings. Being harassed, the applicant did not enjoy a fair hearing. The applicant submitted that the report contains legally privileged information. It being a legally privileged document it should not be disclosed.9 It is not disputed that such a submission was made before the commissioner made the impugned decision. The ruling is bereft of the reasons why such a valid legal submission was rejected.
Although commissioners are not obliged to give detailed reasons, a commissioner must not leave a reviewing court guessing as to the reasons why a particular decision was made. This in itself is a reviewable irregularity. The only conclusion this Court can arrive at is that the decision was aimed at harassing the applicant and subject it to an unfair arbitration process. In my opinion, it is not just and equitable to allow this ruling to stand. Accordingly, this ruling stands to be reviewed and set aside.” [para 17]

Essence

Forensic report privileged and labour court reviewed and set aside ruling requiring employer to disclose the report which did not address the issues.

Decision

J 1048 / 19 : [2019] JOL 41968 (LC) : 2 May 2019.

Granted review application and set aside ruling.

Judges

GN Moshoana J

Hearing: 30 April 2019

Judgment: 2 May 2019

Related books

Darcy du Toit et al

Van Niekerk and Smit (Managing editors) et al Law@Work 4ed 612 pages (LexisNexis 2018) at 487, 488, 491

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at 5, 123-149, 163 – 174, 237-238, 422 – 451 

Reasons

“Another factor is that parties to the arbitration proceedings must only present relevant evidence in order to ensure a fair hearing. Nowhere in the impugned ruling does the commissioner deal with the issue of the relevance of the report for the determination of the issue in dispute – the alleged unfair dismissal. For this reason, too, this ruling cannot stand.” [para 18]

Court summary
Quotations from judgment

Note: Footnotes omitted and emphasis added

Introduction

[1] This is an application brought in terms of section 158(1)(g) of the Labour Relations Act1 (“the LRA”). The application is brought on an urgent basis. The application is opposed by the third respondent.

Background facts

[2] The third respondent, Mr Setumu (“Setumu”), was employed as a Lead Consultant: Application Development. Setumu faced allegations of misconduct. On or about 28 March 2018, he was suspended pending an investigation into allegations of what the applicant considered to be serious misconduct. Pursuant to a disciplinary hearing, Setumu was found guilty and dismissed on 4 December 2018.

[3] Aggrieved by his dismissal, Setumu referred a dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). The dispute was enrolled for con-arb on 11 January 2019. Before the commencement of the process, Setumu raised a preliminary point seeking an order that the applicant be compelled to disclose the Procurement Investigation Report dated 27 August 2018 (the so-called forensic report). The applicant made submissions to oppose the granting of such an order. After hearing those submissions, the second respondent made a ruling contained in a one-page document to the following effect:

“1 The respondent must by 14:00 today provide the applicant with a copy of the forensic investigation report drafted by Bowmans Attorneys.”

[4] The second respondent made a further ruling which is no longer a subject-matter of this review application.2 Following the rulings made, the matter was postponed to 1 April 2019 and then 3 April 2019 for the continuation of the arbitration. In the interim, the applicant failed to comply with the rulings as it was unhappy with them. On 1 April 2019, the second respondent, for reasons that are not apparent anywhere, recused himself from the matter. The matter was then allocated to another commissioner.

On 2 April 2019, the allocated commissioner issued a further ruling to the following effect:

“1. Both parties was (sic) present on even date.
2. The Respondents have failed to comply with the Ruling by Commissioner F Naidoo dated 11 January 2019 ‘Directing the Respondent to furnish the Applicant with a copy of a forensic report “see annexure A”‘.
3. The Respondent wishes to approach Labour Court on an urgent basis in terms section 158(1) of the LRA.
4. The Respondent is granted 30 days to approach Labour Court, failing which CCMA is directed to set the matter down for arbitration, before me, and notify parties accordingly.”

[5] Aggrieved by the impugned ruling, the applicant launched the present application on 26 April 2019 to be heard on 30 April 2019. The application was opposed by Setumu.

Evaluation

[6] Setumu raised a number of points in opposing the review application. The first point related to urgency. It became apparent during the submissions by Mr Tema, appearing for Setumu, that he accepted that the application should be treated as one of urgency. Therefore, it is unnecessary to consider the issue any further. However, if Mr Tema did not accept it, I do exercise my discretion to hear this application as one of urgency. In my view, in matters where the Labour Court ought to intervene and exercise its supervisory functions, urgency is inherent given the imperatives in section 1 of the LRA.3 The allocated CCMA Commissioner directed the applicant in the presence of Setumu to approach this Court within 30 days from 2 April 2019. This ruling is not a subject of review and thus it stands and is binding on the parties. That being the case, it is inappropriate for Setumu to oppose the hearing of this matter on an urgent basis.

Was condonation required?

[7] Setumu contended that the impugned decision was made on 11 January 2019, therefore the six-week period has since expired and condonation is required before this Court can exercise its jurisdiction.

Under section 158(1)(g) this Court is entitled to entertain what may be termed a common-law review. The section does not set out a time period within which to bring the review application. Accordingly, what applies in this instance is the delay rule.

The position was clarified [by the SCA] in Opposition to Urban Tolling Alliance and others v South African National Roads Agency Limited and others4 thus:

“[26] At common law, application of the undue delay rule required a two-stage enquiry.

  • First, whether there was an unreasonable delay and,
  • second, if so, whether the delay should in all the circumstances be condoned . . .”

[8] Further, the position was recently clarified by the Constitutional Court in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd5 as follows:

“[48] Legality review, on the other hand, has no similar fixed period. This Court in Khumalo endorsed the test enunciated by the Supreme Court of Appeal in Gqwetha for assessing undue delay in bringing a legality review application . . .

  • Firstly, it must be determined whether the delay is unreasonable or undue. This is a factual enquiry upon which a value judgment is made, having regard to the circumstances of the matter.
  • Secondly, if the delay is unreasonable, the question becomes whether the Court’s discretion should nevertheless be exercised to overlook the delay to entertain the application.
    . . .

[51] . . . and legality review for the purposes of delay is that when assessing the delay under the principle of legality no explicit condonation application is required. A court can simply consider the delay, and then apply the two-step Khumalo test to ascertain whether the delay is undue and, if so, whether it should be overlooked.”

[9] In the light of the above, it is not necessary for a condonation application to be launched by the applicant in the present matter.

Was there a delay and was it undue or unreasonable?

[10] Applying the two-step approach, I must first determine whether there was a delay or not. It is common cause that the impugned ruling was made on 11 January 2019.

[11] In Weder v Member of the Executive Council for the Department of Health, Western Cape6 Van Niekerk J [sic: Steenkamp J] made the following suggestion:

“[8] What, then, is a ‘reasonable time’ in the context of section 158 of the LRA? It is tempting simply to assume that it should be six weeks, by analogy to the time period provided for in section 145. At the most, it cannot be more than the 180 days provided for in PAJA; in fact, given that PAJA does not apply and that the process is closely aligned to that set out in section 145 and rule 7A, I would suggest that anything more than six weeks should at least trigger an application for condonation.”

[12] The Labour Appeal Court (“the LAC”) had an occasion to consider the suggestion by Van Niekerk J [sic] in G4S Secure Solutions (SA) (Pty) Ltd v Matinga7 and said the following, which seems to reverberate the sentiments currently echoed in Buffalo.

It said:

“[11] It is not permissible for a court to fix a certain time which it regards as a reasonable time: nor is it permissible to insist that an application for condonation should be made after a specific time. An application for condonation must be made when the delay is unreasonable and must be made at the earliest opportunity. The correct approach is that outlined by Brand JA in Associated Institutions Pension Fund v Van Zyl, followed in Collet v CCMA and others namely:

‘[46] . . . It is a longstanding rule that courts have the power, as part of their inherent jurisdiction to regulate their own proceedings, to refuse a review application if the aggrieved party had been guilty of unreasonable delay in initiating the proceedings . . .
[47] The scope and content of the rule has been the subject of investigation in two decisions of this Court. They are the Wolgroeiers case and Setsokosane . . . As appears from these two cases and the numerous decisions in which they have been followed, application of the rule requires consideration of two questions:
(a) Was there an unreasonable delay?
(b) If so, should the delay in all the circumstances be condoned?
[48] The reasonableness or unreasonableness of a delay is entirely dependent on the facts and circumstances of any particular case (see eg Setsokosane at 86G). The investigation into the reasonableness of the delay has nothing to do with the Court’s discretion. It is an investigation into facts of the matter in order to determine whether, in all the circumstances of that case, the delay was reasonable. Though this question does imply a value judgment it is not to be equated with the judicial discretion involved in the next question, if it arises, namely, whether a delay which has been found to be unreasonable, should be condoned (see Setsokosane at 86E–F).'”

[13] In my view, the LAC rejected the suggestion by Van Niekerk J [sic] to fix a period of six weeks and to insist on condonation. This present application was launched on 26 April 2019. On the facts of this case, the review application was launched 15 weeks after the decision was taken. On the facts and the circumstances of this case a delay of 15 weeks is, in my view, applying a value judgment, reasonable. The parties knew that the next time when the arbitration was to sit was in April 2019. During that intervening period, Setumu did not act on the decision by insisting on compliance before the next arbitration date.
During argument, Mr Kirsten, appearing for the applicant, submitted that in the interim period, the parties were engaged in settlement discussions. This was disputed by Mr Tema. Nowhere in the papers is this mentioned by the deponent of the applicant. However, it is common cause that after the ruling was made, the applicant’s attorney intimated that the ruling may not be complied with at the mentioned time and that a review application is being considered.

[14] If I am wrong to say the delay of 15 weeks is not unreasonable in the circumstances of this particular case, then I gravitate to the next question. The second step is for this Court to exercise discretion on whether the delay ought to be overlooked. In this regard, the court in Buffalo said the following:

“[53] . . . There must however be a basis for a court to exercise its discretion to overlook the delay. That basis must be gleaned from the facts made available or objectively available factors.
[54] The approach to overlooking a delay in a legality review is flexible . . . This entails a legal evaluation taking into account a number of factors. The first of these factors is potential prejudice to affected parties as well as the possible consequences of setting aside the impugned decision.”

[15] The available factors in this matter are that after the ruling, Setumu did not seek to take any steps in the interim to enforce the ruling. Further, Setumu accepted a ruling that the applicant should approach this Court within 30 days from 2 April 2019. Having accepted the ruling, there is thus no demonstrable prejudice to Setumu. The setting aside of the impugned decision bears no adverse consequences to Setumu. At the arbitration proceedings, Setumu only need[ed] to show that he was dismissed – a common cause fact – thus far. The onus to justify the dismissal lies with the applicant. In the circumstances, I exercise my discretion by overlooking this delay.

Is the impugned decision reviewable or not?

[16] Section 158(1B) prevents this Court from reviewing a decision made before final determination of the issue in dispute. However, if this Court forms an opinion that it is just and equitable to review a decision, it can do so. This Court has supervisory powers over the proceedings at the CCMA or bargaining councils. Of course determining what is just and equitable is a difficult horse to ride. In my view, section 138(1) of the LRA somewhat guarantees parties at arbitration a fair hearing.8 A commissioner who does not give parties a fair hearing commits a gross irregularity which would ultimately taint the award to be made. The effect of this ruling is that the applicant would be compelled to present evidence which is not required to advance its case.

[17] At arbitration proceedings parties present evidence in order to advance their respective cases. The evidence required is one that would address the issue in dispute. The ruling to compel the applicant to provide a copy of a report (documentary evidence), which would not advance Setumu’s case, is nothing but harassment of the applicant as a party to the arbitration proceedings. Being harassed, the applicant did not enjoy a fair hearing. The applicant submitted that the report contains legally privileged information. It being a legally privileged document it should not be disclosed.9 It is not disputed that such a submission was made before the commissioner made the impugned decision. The ruling is bereft of the reasons why such a valid legal submission was rejected.
Although commissioners are not obliged to give detailed reasons, a commissioner must not leave a reviewing court guessing as to the reasons why a particular decision was made. This in itself is a reviewable irregularity. The only conclusion this Court can arrive at is that the decision was aimed at harassing the applicant and subject it to an unfair arbitration process. In my opinion, it is not just and equitable to allow this ruling to stand. Accordingly, this ruling stands to be reviewed and set aside.

[18] Another factor is that parties to the arbitration proceedings must only present relevant evidence in order to ensure a fair hearing. Nowhere in the impugned ruling does the commissioner deal with the issue of the relevance of the report for the determination of the issue in dispute – the alleged unfair dismissal. For this reason, too, this ruling cannot stand.

[19] During argument, Mr Tema submitted that the findings in the report exonerated Setumu of any wrongdoing. Therefore, the question is what would Setumu use the report for to advance his case at arbitration?

[20] In his evidence before me, Setumu alleges that the report would prove inconsistent application of the disciplinary process. He testifies that the applicant is afraid that its malice would be exposed once the report is produced. I do not understand this evidence.

Firstly, Setumu has been exonerated. That being so, he is not to be compared with any of the fingered persons. How then does inconsistent application of the disciplinary process feature? In my view, it does not feature at all.

[21] He further testified that he has a constitutional right to documentation. There is no such right located in the Constitution of the Republic of South Africa, 1996 (“the Constitution”). Section 35(3) of the Constitution guarantees an accused person a right to a fair trial, which includes being provided with information. Setumu is not an accused person and does not have a constitutional right to documentation.

[22] For all the above reasons, I am of the opinion that it would be just and equitable to set aside the impugned decision.

[23] In the results, I make the following order:

Order

1. The matter is heard as one of urgency;
2. The ruling dated 11 January 2019, related to the disclosure of the forensic report, is hereby reviewed and aside;
3. It is replaced with an order that the applicant is not compelled to provide a copy of the Procurement Investigation Report dated 27 August 2018;
4. There is no order as to costs.