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Labour Relations Act, 1995 (Act No. 66 of 1995)

Chapter VII : Dispute Resolution

Part C : Resolution of disputes under auspices of Commission

142. Powers of commissioner when attempting to resolve disputes

 

 

(1) A commissioner who has been appointed to attempt to resolve a dispute may—
(a) subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute,
(b) subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object;
(c) call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute;
(d) call any person present at the conciliation or arbitration proceedings or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute;
(e) administer an oath or accept an affirmation from any person called to give evidence or be questioned;
(f) at any reasonable time, but only after obtaining the necessary written authorisation—
(i) enter and inspect any premises on or in which any book, document or object, relevant to the resolution of the dispute is to be found or is suspected on reasonable grounds of being found there; and
(ii) examine, demand the production of, and seize any book, document or object that is on or in those premises and that is relevant to the resolution of the dispute; and
(iii) take a statement in respect of any matter relevant to the resolution of the dispute from any person on the premises who is willing to make a statement; and
(g) inspect, and retain for a reasonable period, any of the books, documents or objects that have been produced to, or seized by, the Commission.

 

(2) A subpoena issued for any purpose in terms of subsection (1) must be signed by the director and must—
(a) specifically require the person named in it to appear before the commissioner;
(b) sufficiently identify the book, document or object to be produced; and
(c) state the date, time and place at which the person is to appear.

 

(3) The written authorisation referred to in subsection (1)(f)—
(a) if it relates to residential premises, may be given only by a judge of the Labour Court and with due regard to section 13 of the Constitution, and then only on the application of the commissioner setting out under oath or affirmation the following information—
(i) the nature of the dispute;
(ii) the relevance of any book, document or object to the resolution of the dispute;
(iii) the presence of any book, document or object on the premises; and
(iv) the need to enter, inspect or seize the book, document or object; and
(b) in all other cases, may be given by the director.

 

(4) The owner or occupier of any premises that a commissioner is authorised to enter and inspect, and every person employed by that owner or occupier, must provide any facilities that a commissioner requires to enter those premises and to carry out the inspection or seizure.

 

(5) The commissioner must issue a receipt for any book, document or object seized in terms of subsection (4).

 

(6) The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any book, document or object before a court of law, applies equally to the questioning of any person or the production or seizure of any book, document or object in terms of this section.

 

(7) The Commission must pay the prescribed witness fee to each person who appears before a commissioner in response to a subpoena issued by the commissioner.

 

(8) Any person who requests the Commission to issue a subpoena must pay the prescribed witness fee to each person who appears before a commissioner in response to the subpoena and who remains in attendance until excused by the commissioner.

 

(9) The Commission may on good cause shown waive the requirement in paragraph (b) and pay to the witness the prescribed witness fee.

 

(10) A person commits contempt of the Commission—
(a) if, after having been subpoenaed to appear before the commissioner, the person without good cause does not attend at the time and place stated in the subpoena;
(b) if, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the commissioner;
(c) by refusing to take the oath or to make an affirmation as a witness when a commissioner so requires;
(d) by refusing to answer any question fully and to the best of that person's knowledge and belief subject to subsection (6);
(e) if the person, without good cause, fails to produce any book, document or object specified in a subpoena to a commissioner;
(f) if the person willfully hinders a commissioner in performing any function conferred by or in terms of this Act;
(g) if the person insults, disparages or belittles a commissioner, or prejudices or improperly influences the proceedings or improperly anticipates the commissioner's award;
(h) by willfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during those proceedings;
(i) by doing anything else in relation to the Commission which, if done in relation to a court of law, would have been contempt of court.

 

(11)
(a) A commissioner may make a finding that a party is in contempt of the Commission for any of the reasons set out in subsection (8).
(b) The commissioner may refer the finding, together with the record of the proceedings, to the Labour Court for its decision in terms of subsection (11).

 

(12) Before making a decision in terms of subsection (11), the Labour Court—
(a) must subpoena any person found in contempt to appear before it on a date determined by the Court;
(b) may subpoena any other person to appear before it on a date determined by the Court; and
(c) may make any order that it deems appropriate, including an order in the case of a person who is not a legal practitioner that the person's right to represent a party in the Commission and the Labour Court be suspended.
(d) The Labour Court may confirm, vary or set aside the finding of a commissioner.
(e) If any person fails to appear before the Labour Court pursuant to a subpoena issued in terms of subsection (10)(a), the Court may make any order that it deems appropriate in the absence of that person.