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Unsolved Mysteries with Robert Stack - Season 5, Episode 13 - Full Episode

Where there is no agreement however, a party must still make an application to be considered under sub-rule 3. In this respect the application must ordinarily show that there is good cause for the postponement, whether a postponement will be granted is therefore in the discretion of the court. He failed to take the Commission into his confidence, and by implication, this Court. This included that Ms Gasela had allegedly assured him on 1 October that she would attend the proceedings the following day. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. His conclusions were that a postponement should be refused in the absence of any proof that Ms Gasale was incapacitated;. Ms Rani was employed by the applicant as a Stakeholder Liaison Officer. To the extent that the review in that regard failed, the default award therefore stands. Incredibly, this assurance came about notwithstanding the fact that Ms Gasela was allegedly still to undergo a stomach operation on the same date. It is a statement of the obvious that the date allocation by the commission should be respected and complied with. It is high time that parties recognise the important role performed by the commission and give it the respect it deserves. This approach cannot be faulted in that a decision by this Court that the postponement ruling was reviewable would invariably have implied that the default award ought to be set aside. Judge of the Labour Court of South Africa. The Court takes serious umbrage when litigants deliberately seek to mislead it, or any other dispute resolution forum. This happens in some instances, even before proceedings had commenced let alone finalised. Such an affidavit was crucial in the light of the little weight that was to be attached to the copy of the medical certificate where it was not accompanied by a substantial affidavit by the medical practitioner to explain the nature of the ailment. On resumption, Mr Motaung indicated that he could not get hold of Ms Gasela despite two telephonic attempts, and could therefore not make available a copy of the medical certificate. The Commissioner had analysed whatever evidence was placed before him by both parties, correctly applied the legal principles and came to a reasoned conclusion. It is trite that a mere copy of a certificate is not on its own sufficient, as it constitutes hearsay evidence [12]. The award issued by the first respondent under case number FSBF dated 06 October is herein made an order of court in terms of the provisions of Section 1 c of the Labour Relations Act. In regards to costs, the fourth respondent was represented by a Union official and is accordingly not entitled to any legal costs. Based on the record of proceedings and the award itself, there is no basis upon which it can be concluded that Commissioner had arrived at a decision which no other reasonable commissioner would have arrived at in the light of what was before him at the time, which was that:. The commission is an institution that was created with the specific objective of not repeating the mistakes of the past. An applicant for a postponement seeks an indulgence from the Court. While it has review powers over any function performed by the commission, as a matter of policy, it should also protect the commission from practices that could gain it disrespect. The copy, for what it is worth, was issued by a medical practitioner at Medicross, Edenvale Medical Centre Gauteng. In accordance with this rule, proceedings may be postponed by agreement between the parties, and there would be no need for them to appear if the written agreement for the postponement was received more than seven days before the scheduled date. He contended that the refusal to grant a postponement was irrational and unreasonable, and that Commissioner Motake committed gross misconduct in relation to his duties as:. In the circumstances, the public interest and the quest for expeditious resolution of disputes as mandated by the LRA persuaded the Commissioner to come that decision. The application to review and set aside the postponement ruling issued by the first respondent on 02 October under case number FSBF is dismissed. Commissioner Motake issued a ruling, stating that the matter stood was down for one and a half hour for Mr Motaung to secure the required copy of the medical certificate; that the matter was previously postponed as the same witness was not available. He had not proffered a full and satisfactory as to the reason a postponement was necessary. An applicant for a postponement seeks an indulgence from the court. Accordingly, the court finds no reason to interfere with his ruling. I am satisfied that the Commissioner in arriving at his decision had elicited evidence from Mr Motaung as to why he should be granted an indulgence, and none was forthcoming. He clearly had no substantive reasons to seek a postponement. The applicant was represented at the arbitration proceedings and upon the postponement having been declined, had not participated further in the proceedings. Furthermore, in accordance with the provisions of rule 31 8 , the requirements of rule 31, and by implication, of rule 23 may be dispensed with, where an application for a postponement was brought on the scheduled date of an arbitration and where good cause exists for treating the matter as an urgent application. That application in accordance with the order of Van Niekerk J was to be considered together with the review application. She inter alia undertook to furnish Mr Motaung with a copy of the medical certificate. The application to review and set aside the rescission ruling issued by the second respondent on 20 November under case number FSBF is dismissed. I am uncertain as to whether the purpose of this approach is to intimidate Commissioners into making certain decisions or not. An acknowledgment by a commissioner that proceeding with a matter in circumstances where a postponement was declined would result in the other party not being heard was merely a statement of fact in the light of the request for a postponement. Ms Rani had been prejudiced as a result of the previous postponement and she stood to be further prejudiced if the proceedings were to be postponed yet again. On the facts, therefore, I am satisfied that with his application for a postponement, Mr Motaung was buying time to avoid the inevitable. After conciliation failed, the dispute was referred for arbitration, and was first enrolled before Commissioner Motake for arbitration on 21 August Proceedings were postponed at the request of the applicant, on the basis that its main witness was not available. This was crucial information that could have persuaded the Commissioner. Commissioner Terblanche had declined to determine the rescission application on account of lack of jurisdiction. The proceedings started late as amongst other things, Mr Motaung was granted just under two hours to locate Ms Gasela, when he knew that this was a pointless exercise. Equally so a refusal to grant a postponement involves a consideration of whether a Commissioner acted reasonably, with regard to the principles and jurisprudence alluded to elsewhere in this judgment. The fact of the matter is that this was not any ordinary matter where a default was granted in circumstances where the applicant had failed to make an appearance at all. Whether a postponement will be granted is therefore in the discretion of the Court and cannot be secured by mere agreement between the parties.{/INSERTKEYS}{/PARAGRAPH} There is no order as to costs. Furthermore, informing a party of its rights to rescind a ruling if so desired can only be unsolicited legal advice to the other party which might be wrong advice in any event , and can hardly be misconstrued as an irregularity on the part of a Commissioner. The starting point with postponements at the CCMA is its rule 23 [1] , which sets out the procedures parties are required to follow in order to postpone arbitration proceedings. Prima facie , this undertaking appears to have been made in vain. In circumstances, as in this case, where an application was brought on the date of the arbitration proceedings, such an application should only be considered if it is shown that good cause exists for treating the application as urgent. E Tlhotlhalemaje. The application must however be made timeously. Furthermore, there is no merit in the contention that the Commissioner ought to have postponed the proceedings in any event simply because they had started late. Commissioner Motake had considered the request and declined it as there were no acceptable grounds upon which postponement could be granted. This approach was correct in that rulings and awards can only be rescinded within the confines of the provisions of section of the LRA. At the time, Mr Motaung was not in possession of a copy of a medical certificate to confirm that indeed Ms Gasela was ill. The invariable conclusion to be reached in this regard is that the more Mr Motaung sought to disentangle himself out of his own self-made quagmire, the deeper he sank in it. Secondly, it must be done with 'the minimum of legal formalities' s 1. It was not sufficient for Motaung, after being granted an indulgence to find out where this witness was, to simply report back that she could not be found after two mere telephonic attempts. {PARAGRAPH}{INSERTKEYS}First Respondent. He took into account that disputes had to be resolved speedily, and that the applicant had been afforded an indulgence. Factors to be considered in this regard include the explanation for not seeking consent from the other party timeously; whether the other party was given sufficient notice of the intended application; the prejudice to the other party; whether the application is bona fide and not merely used as a delaying tactic; or whether if the request is granted, a cost order can fairly compensate the prejudice or potential prejudice to the other party. T Govender. The matter would not have been finalised on the day in question and would have been postponed in any event;. There is therefore no basis for any conclusion to be reached that the Commissioner exercised his discretion capriciously or on any wrong principle or consideration. Be that as it may, it is uncalled for, as parties are entitled to exercise their rights under the LRA without Commissioners being constantly reminded of that fact. This cannot by all accounts be a sustainable basis for reviewing the ruling. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion [5]. The rescission ruling. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. A postponement will not be granted, unless this court is satisfied that it is in the interests of justice to do so. He had in the process, attempted to abuse the CCMA proceedings, and Commissioner Motake was correct in taking a firm stand against such abuse and disrespect of proceedings. This court will not countenance conduct that is designed to interfere with the work of the commission or even hinder it in its functions. In exercising that discretion, this Court takes into account a number of factors, including but not limited to whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties, whether the application is opposed and the broader public interest. In this respect the applicant must show that there is good cause for the postponement. The fact that Commissioner Motake had suggested and endorsed that route cannot not imply that the applicant ought to have followed it. For this dispensation to be effective the commission must not be hindered in its work. These are issues on which the commission must exercise a discretion and a party who takes this for granted does so at its own peril. The CCMA is obliged to postpone the proceedings under sub-rule 2 a. The first is that arbitration proceedings must be structured to deal with a dispute fairly and quickly s 1. And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted. The commission is not obliged to succumb to unnecessary postponement requests which result in serious disruptions to its work. On securing a postponement on that date, Mr Motaung on behalf of the applicant undertook that Gasela would commit herself to the next set-down date [9]. The application before him was not bona fide and was merely used as a delaying tactic by Mr Motaung, who had failed to take the Commissioner into his confidence, and had approached the Commission ill-prepared, and with a false sense of entitlement to a further postponement. The commission plays a crucial role in the dispute resolution dispensation under the Act. If indeed Ms Gasale knew that she would be undergoing an operation on 1 October , it is improbable that she would not have informed Mr Motaung of that fact, let alone make any undertaking to attend an arbitration hearing. Second Respondent. He failed to do so at the appropriate time, and instead chose to take Commissioner Motake, Ms Rani and her representative on a joy ride to nowhere. In any event, any expectation that she would have attended the arbitration proceedings in Bloemfontein a day after her alleged stomach operation in Edenvale, is far-fetched and disingenuous. She commenced her employment with the applicant on 1 November She was ultimately found guilty of four of those, viz:.