Section 143(1) of the Labour Relations Act 66 of 1995, provides that an Arbitration award issued by a Commissioner is final and binding. However, in instances where the parties are not satisfied with an award/ruling the parties have a right to approach the labour court to review the award. Central to a review application is a record of the proceedings at the CCMA. When the record of proceedings at the CCMA is lost, incomplete, or of such poor quality that it renders the proceedings inaudible, parties often find themselves at a proverbial crossroads. The central question arises: must the parties undertake the difficult task of reconstructing the record, or should the matter be remitted to the CCMA for a fresh hearing?
The Labor court case in Sol Plaatjie Local Muncipality v South African Local Bargaining Council & Others (PR 192/15) 2017 ZALCPE1 offers some guidance in this regard. The Applicant sought inter alia an order directing the parties to hold a meeting to reconstruct the record, noting that certain parts of the recordings had been lost. The court ultimately dismissed the application and held that the application was an abuse of process.
The approach of the court under such circumstances is regulated by Paragraph 11.24 of the Practice Manual of the Labour Court which provides;
“ If the record of the proceedings under review has been lost, or if the recording is of such a poor quality to the extent that tapes are inaudible, the Applicant may approach the Judge President on the further conduct of the review application. The judge will allocate the file to a judge for direction which may include the remission of the matter to the body whose award or ruling is under review or where practicable a direction to the effect that the relevant parts of the record must be reconstructed”.
It must be noted that, the Practice Manual is deemed to be binding and all parties who litigate in the labor courts are obliged to adhere to the Practice Manual. The court further held that in instances where the entire record has been lost and it has been established that that the record is necessary for the court to determine the review application the parties should attempt to reconstruct the record. Where the reconstruction of the trial proves to be impossible , the applicant should approach the respondent for the consent to remit the matter back to the CCMA for a hearing de novo.
Where such consent is given the applicant may approach the Registrar for an order to be made by a judge in terms of Rule 17(3) of the Labor Court, where the respondent refuses to consent to remit the matter to the CCMA, the applicant may approach the Judge President for a direction on the further conduct of the review application.
The court emphasized that parties should exhaust all available remedies before approaching the court to make a determination on the reconstruction of lost records.
The court held that an applicant seeking such a direction should set out in detail what steps have been undertaken to ensure that a record necessary for the review application has been placed before the court, and why the available record is inadequate to proceed with the review and that the parties have done what they could to place a proper record before the court but are unable to do so.
In Toyota SA Motors (Pty) Ltd v CCMA & Others (2015) ZACC 40, It was held that the party seeking a review has an obligation to initiate steps for the reconstruction of the trial record when it is apparent that there are problems with the trial record. In Baloyi v MEC Health & Social Development Limpopo & Others [2015] ZACC 39 the Constitutional Court found that the Labor Court had erred on deciding the matter on review based on a defective record, the court held that the Labor Court should have remitted the matter to the CCMA for a rehearing.
It is submitted that the issue of the reconstruction of lost records although a subject of numerous judgements in the past however the matter appears to be settled in law. It is apparent from the cases referred to above, that upon the discovery of the trial record being lost parties should attempt to reconstruct the trial record. Where the reconstruction of the trial proves to be impossible parties may by mutual consent elect for the matter to be remitted to the CCMA for a fresh hearing. In the event where consensus cannot be reached between the parties, the applicant may approach the court to decide on the issue.
