Closed or open justice, it’s a debate that’ll rage on. Allan Greenblo, editorial director of Today’s Trustee, talks about his experience of being kicked out of a Commission for Conciliation, Mediation and Arbitration court hearing, which brought the discussion to the fore.
He fully understands that conciliation and mediation proceedings should be confidential, but feels arbitration is different. And because arbitration requires the keeping of records, they automatically become public, so the whole experience points to inconsistencies.
It’s an interesting saga with a High Court judgment on ‘open justice’ at CCMA arbitrations expected soon. – Stuart Lowman
By Allan Greenblo*
The other day I was kicked out of court. Well, it wasn’t literally by the seat of my pants and it wasn’t exactly a court in the commonly-understood sense. It was an arbitration hearing at the Commission for Conciliation, Mediation & Arbitration (CCMA).
Does the principle of ‘open justice’, enshrined in our Constitution, apply to CCMA arbitration hearings? Possibly, you don’t know. Certainly, I don’t know. And it’s now evident that the CCMA doesn’t know either.
What I’d done was walk into a hearing – the matter had to do with the curator of the SA Commercial, Catering & Allied Workers Union national provident fund and its dismissed principal officer – in the same way that I’d walked on previous occasions into dozens of High Court proceedings. That’s what the media and the public do routinely.
Read also: Allan Greenblo: Opposite approaches – so which BEE “policy” is the ANC’s real one?
But not this time. I was told by the commissioner to identify myself. Handing her my business card, I explained that I was representing a publication that reports on matters pertinent to retirement funds. Counsel for the curator took umbrage.
The commissioner went into a tizz. They accused me of not having observed “relevant protocols”. When I asked what these were, the commissioner directed that I leave the room and wait in the corridor. She then also left the room, perhaps to consult with somebody.
About a half-hour later, she returned. Apparently not in the best of moods, she told me to return too. I could not stay, she said, until I had filled in a form at the CCMA legal department applying for permission to attend.
Once I had completed the form, she said, the parties should have an opportunity to object. She was aware, she said, of problematic timelines in that the permission process probably wouldn’t be concluded before the hearing had been concluded.
So down several Johannesburg blocks I traipsed, from 127 Fox Street to 28 Harrison Street, where I was courteously received by a lady in the CCMA legal department.
There was no such thing as an application form, she told me, and therefore no way in which I could apply for permission. Further, she elaborated, the CCMA had no policy on the attendance of media or the public at arbitration hearings.
Back at my desk, I lodged a complaint with the CCMA against the commissioner. First, she had given me an instruction that was incapable of fulfilment. Second, she had effectively prevented my attendance at the hearing.
A fortnight later, this response was received: “Kindly be advised that the CCMA is in the process of making a formal ruling on media access to CCMA hearings.”
Read also: ANC heavyweight Mashatile: Next step in transformation – change JSE company boards
I can understand that CCMA conciliation and mediation proceedings should be confidential, but arbitration is different. The rules of conduct for CCMA hearings, gazetted by the Department of Labour in March, do provide for confidentiality on conciliation and mediation. On arbitration, however, the rules are silent.
My argument is that a reason for the CCMA having been established to hear arbitration matters is for the parties to avert the greater expense of litigation before the Labour Court, a specialist division of the High Court.
Accordingly, the media and public should have a right of access to CCMA arbitrations – including attendance and sight of filed documents – in the same way as in the Labour/High Court.
Moreover, parties to CMMA arbitrations have rights of review and appeal. This requires the keeping of records. They automatically become public, except in the unusual circumstance of a judge specifically ordering otherwise, once the matter is referred to a higher court.
Keeping them secret at the trial stage is therefore inconsistent, and access to hearings equally inconsistent, as between the High Court and the CCMA.
At time of writing, it’s believed that a High Court judgment on ‘open justice’ at CCMA arbitrations is imminent. It concerns the dismissal by the SA Revenue Service of a senior executive. One party wants the hearing to be closed and one wants it open.
* Allan Greenblo is editorial director of Today’s Trustee, a quarterly magazine mainly for principal officers and trustees of retirement funds.
* For more in-depth business news, visit biznews.com or simply sign up for the daily newsletter.