CCMA – LEGAL REPRESENTATION
Labour – Legal representation – CCMA – Commissioner refusing to allow employer to be represented by attorney – Senior employee able to lead his witnesses and cross examine – Not in anyway incompetent to conduct arbitration proceedings – CCMA Rule 25(1)(c).
Goodrock Chemworks v CCMA [2022] ZALCJHB 211 at [27]-[43]
Facts: Mr Macala had been in the employ of Goodrock Chemworks for over 15 years, with an unblemished disciplinary record. At a disciplinary hearing, the chairperson acquitted Mr Macala of three charges and found him guilty on the fourth charge and recommended his summary dismissal. This charge was for using the company car to go to a supermarket and for using the gate remote instead of the biometric system when he did so. At the CCMA, the Commissioner refused to allow Goodrock to be legally represented and found in favour of Mr Macala.
Application: Goodrock seeks to review and set aside the award of the Commissioner at the CCMA who found that the dismissal was procedurally fair and substantively unfair and ordered Mr Macala’s reinstatement coupled with remuneration equivalent to three months’ salary. The Commissioner found that nothing in Goodrock’s disciplinary code and procedure prescribed dismissal as a sanction for a first offender who used a company vehicle without any authority.
Discussion: Goodrock’s contention that the Commissioner ought to have allowed it to be legally represented as the dispute was complex and in the public interest; that AMCU’s shop steward was legally trained and very familiar and experienced in conducting arbitration proceedings; that if their experienced attorney who specialised in labour law had participated, the outcome would have been different; Goodrock’s contentions on various alleged gross irregularities in how the arbitrator dealt with evidence presented; and Rule 25(1)(c) of the CCMA Rules on legal representation.
Findings: The commissioner correctly found that for the contravention Mr Macala was found guilty of, as a first offender, Goodrock’s disciplinary code did not prescribe dismissal as an appropriate sanction. Goodrock was the drafter and custodian of its policies and can blame no one but itself. The senior employee of Goodrock at the CCMA was able to lead his witnesses and cross examine and it cannot be said that he was in anyway incompetent to conduct arbitration proceedings. During the proceedings, Goodrock’s attorney had been available in another room for the senior employee to consult with. The commissioner was correct to dismiss the Goodrock’s application on legal representation.
Order: The review application is dismissed.
SETHENE AJ
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DEFAMATION AGAINST DAILY MAVERICK
Delict – Defamation – Allegations against online news service – Allegations of a racist agenda and that they produced fake propaganda – Award of R100,000 and order for publication of retraction.
Daily Maverick v Modiba [2022] 33428-2020 (GJ) at [22]-[38]
Facts: The Daily Maverick online news service published four of Mr Modiba’s article, which he had submitted, unsolicited, as a guest contributor. His further articles were considered unfit for publication. He then posted various messages on Twitter, including that he stopped writing for Daily Maverick because “they only publish articles where you criticise black leaders /ANC, or EFF”. The Independent Online (IOL) digital newspaper later published an article that referenced an interview with Mr Modiba stating that Daily Maverick recruited him and other unnamed students to produce fake propaganda.
Application: The applicants seek default judgment for R500,000 arising out of defamation. Mr Modiba has not attended proceedings, despite being served personally by the sheriff and being invited to the Caselines file.
Discussion: The requirements for defamation; that a reasonable reader would understand Mr Modiba’s words to mean that Daily Maverick and its journalists lack integrity, are unethical, and drive a secret agenda to tarnish the reputation of specific individuals and organizations by deliberately engineering fake news about them; that the allegations were believed and taken seriously by the EFF, IOL and the Information Communication & Technology Union, which released a statement calling for the closure of Daily Maverick.
Findings: The applicants have proved the elements of defamation. Costs on an attorney-and-client scale are justified by Mr Modiba’s obstinate attitude and recalcitrance, which forced the applicants to incur unnecessary costs of coming to court to seek redress.
Order: Mr Modiba is ordered to pay the Daily Maverick R100,000. He is ordered to remove the defamatory statements within 24 hours and to issue an unconditional retraction on all the platforms where the defamatory statements were originally published, with equal prominence.
MATOJANE J
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SLIP AND TRIP AT COURT
Delict – Slip and trip – At magistrate’s court – Floor wet from cleaning contractor – Liability of principal for independent contractor – Reasonable steps to guard against foreseeable harm to the public – Insufficient to merely appoint contractor.
Swarts v Minister of Public Works [2022] ZAECQBHC 21 at [51]-[64]
Facts: Mr Swarts, an attorney with many years standing, was at the Gqeberha Magistrates’ Court when he slipped and fell on water located on the floor in the building’s passageway, injuring his left shoulder.
Claim: Mr Swarts contends that the defendants or their employees or cleaning contractor were negligent and claims damages allegedly arising out of the incident in the amount of over R2,8 million.
Discussion: The Minister seeks to disavow liability on the basis that there was a contract with Sky Ground to provide cleaning services at the court building, which contract was in place at the time of the incident; the liability of a principal for the wrongs committed by an independent contractor or its employees; whether warning signs had been utilised to alert persons walking in the vicinity of the wet passageway; whether the cleaning services were monitored; the approach to “slip and trip” incidents; and whether the defendants discharged their legal duty by the appointment of Sky Ground.
Findings: The defendants were satisfied to merely content themselves with the appointment of Sky Ground to perform the cleaning services at the court building and to sit back and do no more. This was insufficient to amount to reasonable steps to guard against foreseeable harm to the public.
Order: The defendants are found liable for such damages as agreed or proved.
BANDS AJ
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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
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