Van Straaten v Wehnke NO and Others (LC) (unreported case no JR1876/21, 12-9-2023) (Moshoana J).

In terms of r 7A(6) of the Rules for the conduct of proceedings in the Labour Court (Labour Court Rules), an applicant to a review application is obliged to furnish the registrar and any other party, a copy of the record or a portion of the record, which the applicant relies on in furthering his or her review application.

Rule 7A(7) states:

‘The costs of transcription of the record, copying and delivery of the record and reasons, if any, must be paid by the applicant and then become costs in the cause.’

The question before the Labour Court (LC) was whether an applicant, who received the digital record from the registrar of the LC in terms of r 7A(5), could, without paying for a professional transcriber to transcribe the record; transcribe the record themselves, serve and file same for purposes of furthering their review application.

The applicant Mr van Straaten (van Straaten) sought to review an arbitration award, concluded under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA), wherein it was found that his dismissal was both substantively and procedurally fair.

Having received the digital record from the registrar, van Straaten transcribed the record himself, served and filed the transcribed record and thereafter filed a supplementary affidavit in accordance with the rules.

Although the review application was not initially opposed, the employer entered a notice to oppose and thereafter brought a r 11 application seeking an order, among others, that:

• The applicant be directed to have the record transcribed by a professional transcriber, who attests to the veracity to the transcription and delivers a certificate of authenticity.
• The record remains incomplete until the applicant complies with the above and once the applicant does so, the respondent will have ten days in which to file its answering affidavit.

The interlocutory was set down for hearing.

The court noted that the question before it, had to be assessed within the prism of s 34 of the Constitution, the advancement of social justice, as outlined in the preamble of the Constitution and s 1 and s 3 of the Labour Relations Act 66 of 1995 (LRA), which states that the LRA must be interpreted so as to get effect to the right to fair labour practice.

The court observed that r 7A(7) is identical to r 53(3) of the Uniform Rules of Court, hence turned to DE van Loggerenberg Erasmus: Superior Court Practice (Cape Town: Juta), wherein it was stated that –

• the rule was developed for the benefit of an applicant under circumstances where he or she does not have all the evidence at their disposal; and
• secondly, there is nothing which prevents a respondent from placing the record or parts of the record before court simply because the applicant has not done so.

Turning to the advancement of social justice, the court found that on the employer’s interpretation of r 7A(7), an applicant could lose its automatic right to review an unfavourable award, if he or she is not in a position to meet the high costs associated with professional transcribers.

In this case, van Straaten’s offer to provide the employed with the digital disc to confirm the accuracy of his transcript, was rejected by the employer for ‘unsatisfactory’ reasons, according to the court.

In pursuing its argument, the employer relied on the judgment in Osho Steel (Pty) Ltd v Ngobeni NO and Others (2020) 41 ILJ 476 (LC), wherein that matter the court held:

‘In the end however, it would lead to an untenable position for the court and the parties to a dispute, where unofficial transcribed records are simply filed and served, when there are clear rules governing that process.’

The court distinguished the facts before it, to that which served before the court in Osho. In the latter case, the applicant did not receive a digital copy of the record from the registrar – the applicant simply transcribed a digital recording which she had recorded. In casu, van Straaten transcribed a digital record given to him by the registrar of the LC. Thus, the dispute in Osho turned on an interpretation of the subrule dealing with the dispatching of the record, whereas on the facts before it, the parties in casu were addressing the subrule pertaining to the payment of the transcribed record.

As to van Straaten’s right to a fair hearing as per s 34 of the Constitution; the court found that if the interpretation of r 7A(7) was to mean that a transcribed record can only be achieved through the expensive way of instructing a transcriber to transcribe the record; then such an interpretation would unduly limit van Straaten’s right in terms of s 34.

On the correct interpretation of r 7A(7), the court found that as the LRA in an enabling legislation to the right of fair labour practice, a review contemplated in s 145 of the LRA, is effectively one exercising their right to fair labour practice. Therefore, the subrule must be afforded an interpretation, which is the least restrictive on the constitutional guaranteed right. In adopting the purposive interpretation, the court found that any transcribed record, irrespective of its creation, satisfied the record for purposes of r 7A(7). This, however, does not prevent the respondent from challenging the authenticity of the record, by transcribing the same digital record through a professional transcriber and placing that record before the court.

In conclusion the court held:

‘In summary, a transcription produced from an electronic record provided to the registrar of the Labour Court by a body contemplated in r 7A(2)(b) of the Labour Court is sufficient irrespective of its manner of creation into a useable format. An applicant for review is the primary beneficiary of a record of review. A respondent is not barred from placing before court a record it believes to be authentic. It must be remembered that a respondent also has a duty to ensure that a proper record is placed before a court of review. The contention that because the transcript has not been generated by a professional transcriber, then an incomplete record has been availed is not only against the principles discussed in this judgment, it is preposterous to the extreme. A transcription, irrespective of its manner of creation, completes a record of the proceedings sought to be reviewed and set aside. Accordingly, the present motion is doomed to fail.’

The application was dismissed with no order as to costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2023 (Dec) DR 55.