Louis Case Reports

SAFETY POLICY AND HIGH HEELS

Labour – Safety policy – Mining operation – Flat shoes required on premises – Employee wearing high heels – Seeking support from colleagues – Dismissed for gross insubordination and incitement – Dismissal substantively unfair.
Mofokeng v CCMA [2022] JR1200-18 (LC) at [14]-[38]

Tharisa Minerals operates as a mine and is regulated by the Mine Health and Safety Act 29 of 1996. The mine adopted a policy covering mine health and safety and a clause provided that appropriate shoes must be worn at all times. A risk assessment later indicated that high heels posed a safety risk and that only flat shoes must be worn when entering the mine premises. Ms Mofokeng was a human resources coordinator and, after being spotted wearing high heels, was told to comply with the policy. She approached other employees and a trade union leader with her dissatisfaction, but they ended up not supporting her. Her attempts to lobby for support were viewed as gross insubordination and incitement, resulting in a disciplinary enquiry. She was found guilty and dismissed. She approached the CCMA but the commissioner found her dismissal fair and she now approaches the Labour Court.

Moshoana J discusses section 16 of the Constitution and the freedom of speech; that employees are entitled to question the application of certain work rules; that the policy was adopted and then the risk assessment done two years later; that section 8 of the Act required an employer to consult with the health and safety committee and there was no evidence that this section was complied with when the policy was reviewed; there was no evidence of persistence and wilfulness on the part of Ms Mofokeng not to comply, nor of a deliberate and serious challenge or defiance of the policy; and there was also no evidence that she incited any of her colleagues to engage in strike action. The award is set aside and replaced with an order that the dismissal was procedurally fair but substantively unfair. The company is ordered to reinstate Ms Mofokeng with effect from 16 October 2017.

ARBITRATION AND TIME-BAR CLAUSE

Arbitration ­– Agreement – Time-bar clause – Notice of appeal of award delivered outside of time – Extension of time sought – Arbitration Act 42 of 1965, s 8.
Van Den Heever NO v N’komati Anthracite [2022] 2021-42438 (GJ) at [18]-[49]

Liviero performed opencast mining services on behalf of N’komati Anthracite. Liviero was liquidated and N’komati went into business rescue. A dispute arose, with the liquidators of Liviero contending that a substantial amount was still owing to them. The parties agreed to refer the dispute for resolution and this was converted into arbitration proceedings, with retired Judge Harms as arbitrator. The award was in favour of the liquidators and was for payment of R11,7 million. The arbitration agreement contained an appeal provision that provided that a notice of appeal shall be delivered by the appellant within ten calendar days of publication of the award, failing which the right to appeal shall lapse and the award shall not be appealable. N’Komati delivered a notice of appeal out of time. The liquidators now seek an order making the arbitration award an order of court.

N’Komati brought a counter-application in terms of section 8 of the Arbitration Act 42 of 1965 for an extension of the time period for the delivery of its notice of appeal in the arbitration and directing the applicants to nominate arbitrators for purposes of constituting an arbitration appeal tribunal.

Windell J discusses the relevant terms of the arbitration agreement; section 8 of the Arbitration Act and the power of the court to extend time fixed in arbitration agreement for commencing arbitration proceedings; whether all time-bar clauses, where arbitration is concerned, are subject to section 8; whether an appeal to the tribunal was a “future dispute”; whether the lodging of a notice to appeal constituted “a step in commencing arbitration proceedings”; that the question of undue hardship was paramount in the remedy provided for in section 8; the explanation for the notice of appeal being delivered late; and the prospects of the intended appeal. The court finds that an appropriate case for relief in terms of section 8 of the Arbitration Act has been made. The relief sought by N’komati in the counter-application is granted and the applicant’s application is dismissed.

ANTON PILLER ORDER AND AUDITORS

Anton Piller order – Obtained against former auditors – To aid execution of a judgment – Respondents complaining of breach of terms of order during execution.
Van Der Merwe v Van Wyk Auditors [2022] ZAGPPHC 522 at [26]-[91]

During 2011 Mr Van Wyk was appointed to act as auditor in all financial and tax related matters for the 1st to 21st applicants (the van der Merwe Group). This appointment was subsequently terminated. In 2021 the applicants requested all the source documents relating to the tax and financial affairs of the van der Merwe Group so that they could appoint an auditor to attend to their outstanding matters, but to no avail. This resulted in two applications to court with the second resulting in an order that the respondents hand over various specified documents. The applicants contended that the respondents deliberately thwarted the order and so obtained an Anton Piller order in the urgent court. The applicants averred that were the respondents to be given notice of the application they would be able to delete the accounting system entries from their computers which would defeat the purpose of the order. Based on these facts the Anton Piller order was granted in camera. On the return day the respondents contended, among other grounds, that unauthorised persons were permitted to be present, thus tainting the execution of the order, the consequence of which they say must lead to its discharge.

Neukircher J discusses the people present during the execution of the Anton Piller order, which included members of the applicants’ attorneys firm, the applicants’ auditor and a computer operator; the Shoba case and the requirements for the granting of an Anton Piller order; whether the Anton Piller procedure could be used in order to aid in the execution of a judgment; that the applicants rely on the respondents’ obstinate refusal to comply in full with two court orders and in particular with second order; the contention that the remedy is only available to preserve “vital evidence”; the “real threat” argument and that it appeared that certain information had been deleted; full disclosure; the scope of the order; and the respondents’ complaints about the participation of a candidate attorney, the taking of photos and a video, that keyword searches were too wide and that a software program was uploaded onto their computer system to enable the search.

The rule nisi is confirmed and the documents and items in the possession of the Sheriff pursuant to the execution of the Anton Piller order, shall be handed to the applicants. See paras [87]-[90] on the respondents’ attack on the competence and integrity of a Judge and a punitive costs order being warranted.

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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