Jacobs v CCMA [2024] C811-19 (LC)
LABOUR – Dismissal – Reinstatement – Commissioner found dismissal substantively unfair
Review against decision not to order reinstatement – Whether commissioner’s decision to decline reinstatement met review test – Commissioner reasoned that reinstating applicant would be intolerable – Category mistake and illogical – Slippage between section 193(2)(b) and 193(2)(c) not permitted where commissioner pins reasoning to intolerability alone – Award set aside – Labour Relation Act 66 of 1995.
Facts: The applicant went on leave for six days just before the employer was to roll out an automatic payment system by which customers could pay for rides on busses by smart cards. The applicant had the overall responsibility for the success of this business process, and he had assured management that adequate systems were in place to handle the roll-out. On the day, however, the smart-card system had problems. These were a PR disaster for the employer. On his return to work, the applicant was called in and accused of gross negligence. This was on the basis that no proper roll-out system was in place and that 18,000 smart cards had gone missing. The cards were later found. The employee was taken to a disciplinary hearing and accused of gross negligence and providing misleading information to the employer about the adequacy of the systems in place. He was dismissed. He unsuccessfully appealed and referred the matter to the CCMA.
Review: Having found that the applicant’s dismissal was substantively unfair, the commissioner declined to reinstate the applicant. Since reinstatement is the primary relief that the CCMA must order when a dismissal is found to be substantively unfair under section 193 of the Labour Relations Act 66 of 1995 (LRA), the question is whether the commissioner’s decision to decline reinstatement met the review test. This is a review application in terms of section 145 against the award of the commissioner.
Discussion: Reinstatement would ordinarily beckon when a dismissal is found to be substantively unfair unless certain exceptions are met. The specific exception the commissioner noted was that circumstances surrounding the dismissal were such that a continued employment relationship would be intolerable under section 193(2)(b) of the LRA. Two of the four reasons the commissioner supplied to justify her finding function as aggravating factors in determining sanction after an employee is found guilty of misconduct. They do not come across as extraneous circumstances surrounding the dismissal. The commissioner’s later reliance on the factors as evidence of circumstances surrounding the dismissal, such that a continued employment relationship would be intolerable, is a category mistake and illogical. A logical misstep of this nature cannot be the basis of a finding a reasonable decision-maker would make.
Findings: The LAC and Constitutional Court have roundly endorsed the principle that absent clear and compelling reasons rooted in solid evidence, employees whose dismissals are substantively unfair should not be denied reinstatement. Commissioners wishing to invoke an exception to this statutory rule in terms of section 193(2)(b) and (c) cannot do so in broad brush strokes, re-animating arguments proper to aggravation of sanction, or flighting circular concerns about the employer’s convenience. In circumstances such as the present one, commissioners should reinstate or devote clearly reasoned paragraphs to the circumstances in evidence surrounding the dismissal that truly make the prospect of reinstatement intolerable. It is fair that the extent of the retrospective order considers any delays in the prosecution of the review.
Order: The award of the CCMA denying the applicant reinstatement is set aside and substituted. Golden Arrow is ordered to reinstate the applicant retrospectively with effect from the date of his dismissal on the same terms and conditions that pertained at the time of his dismissal. In calculating the value of the backpay, two months’ remuneration may be excluded.
WHITCHER J
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Fenyane v Ndengane NO [2024] 19397-22 (GJ)
COSTS – Taxation – Right of appearance – Meaning of “practise” and “appear”
Taxing master not an extension of court and does not have same powers as judge and powers are considerably constrained – Taxing master is executive official performing quasi-judicial function – Candidate attorneys should not be able to appear before taxing master until they are admitted – Admitted attorneys without right of appearance can appear before taxing master – Uniform Rule 70 – Legal Practice Act 28 of 2014, s 25(3).
Facts: The applicant is a practising attorney who does not have right of appearance in the High Court. She is employed by the attorneys for LI Coal and Naledi Energy. They were mulcted with costs and the applicant was assigned to attend to the taxation by her principal. The taxing master decided that the applicant, who is a duly admitted attorney, could not appear at a taxation without a right of appearance in the Superior Courts, under section 25(3) of the Legal Practice Act 28 of 2014 (LPA).
Application: An application for a judicial review where the applicant seeks to set aside the decision of the taxing master as unlawful, unconstitutional, and invalid and that this court must order that the applicant be allowed to appear on behalf of her clients before the taxing master. The amici support the position of the applicant that the impugned decision of the taxing master be reviewed and set aside and, in addition, that section 25(5)(a)(ii) and section 25(3) of the LPA be properly interpreted to also allow candidate attorneys to appear before taxing masters.
Discussion: The review application was correctly brought in terms of Uniform Rule 53. The principle of legality applies to a taxing master. The function of a taxing master is quasi-judicial and not administrative and the Promotion of Administrative Justice Act 3 of 2000 has no application. The Legal Practice Council at the stage of admission has taken into consideration all the experience of the attorney to be admitted and has approved such admission. This elevates the capability, suitability and the expertise of the admitted attorney, as compared to a candidate attorney who has not as yet been approved by the Legal Practice Council. A candidate attorneys should not be able to appear before a taxing master, until such stage as they are admitted. Allowing an admitted attorney to appear before a taxing master, even without a certificate of rights of appearance in the Superior Courts, will hone these skills and increase an attorney’s confidence and skills.
Findings: It is clear from Uniform Rule 70 that a taxing master does not have the same powers as a judge or that a taxing master’s role is elevated to that of a judge when the taxation of the bill of costs ensues. A purposive reading of Uniform Rule 70(5A)(d) supports the argument that admitted attorneys without a right of appearance can appear before a taxing master. A legal practitioner who has been admitted to practise as a legal practitioner by a South African High Court and who does not have a right of appearance can practise and appear before any board, tribunal or similar institutions including before a taxing master, who is an executive official performing a quasi-judicial function. Employing an admitted attorney, without rights of appearance, to appear before a taxing master, as opposed to an attorney with rights of appearance, or an advocate, means a lower rate charged to clients.
Order: The words “appear” in the High Court, the Supreme Court of Appeal or the Constitutional Court, in terms of section 25(3) of the LPA, refer to appearance before judges of such courts, not to appearance before taxing masters of such courts. Any duly admitted and enrolled attorney may appear on behalf of their client before a taxing master of such courts. Each party is to pay their own costs.
DOSIO J (ADAMS J concurring)
VALLY J dissenting from para [109]
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Agri Initiative NPC v National Commissioner [2024] 23-022575 (GP)
PAIA – Police – Records of destroyed firearms – Police media statement that firearms destroyed
Applicants seeking ballistic reports that firearms were tested and results were no positives or firearm applications linked to them – Media statement, Government Gazette and destruction certificate not providing proof that the firearms were tested and no positive results recorded – Respondents have always been in control of information requested by applicant – Respondents ordered to provide the information within 30 days.
Facts: The police issued media statements that they had destroyed 24,901 firearms which include firearms voluntarily handed over during the previous two firearms amnesty periods as well as those that were either confiscated by or surrendered to the State. The destruction was reported to have taken place at Cape Gate Steel in Vanderbijlpark, Gauteng. The applicant made a request for information for the SAPS to furnish the records and/or ballistic reports for each destroyed firearm which substantiated the claim that all of the 24,901 firearms were subjected to Integrated Ballistics Identification Systems (IBIS) testing, which in turn returned no positive hits nor firearm application linked to them.
Application: The request was refused because the request “relates to confidential information, and protection of certain other confidential information, of the third party.” The applicant launched an internal appeal and was successful, but the SAPS never supplied the information and did not answer a further request and have not provided access. The applicant seeks relief in terms of the Promotion of Access to Information Act 2 of 2000 that the respondents be obliged to produce the records.
Discussion: The respondents maintain that they provided the applicant with the requested information in the form of the media statement, the Government Gazette and the destruction certificate. The respondents say it would be a protracted process to collate individual certificates in relation to destroyed firearms, because individual files are located in every province. The respondents further invited the applicant to specify firearms which are of concern to the applicant and that information pertaining to those firearms would then be made available to the applicant. The answering affidavit contained a contention that the applicant was non-specific as to information requested. The respondents cannot in the same breath say the applicant’s request is imprecise, whilst simultaneously saying the applicant has been given the requested information.
Findings: None of the media statement, the Government Gazette or the destruction certificate referenced by the respondents provide proof that the firearms were tested and that no firearms which returned positive hits or firearm applications linked to them were destroyed. It is not permitted of the respondents to say, in the application, that the requested information is not to be made available because it would result in a protracted process. This is because the respondents did not aver an impediment to producing the requested information, given that the applicant’s internal appeal succeeded. The respondents have always been in control of information requested by the applicant. It is similarly not open to respondents to raise privacy concerns in their opposition to the application.
Order: Respondents are ordered to, within 30 days, provide information which substantiates the claim that all the destroyed firearms were subject to IBIS testing, which returned no positive confirmation for involvement in the commission of any offence, nor any firearm applications linked to the firearms. The respondents are ordered to pay the costs.
MOOKI J
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