South African Broadcasting Corporation (SOC) Limited and Others v Mkhize and Another

On 17 October 2018, the first respondent (Ayanda Mkhize) was dismissed by the first applicant (SABC) for misconduct. She disputed the fairness of the dismissal and an arbitration hearing was set down for 21 August 2019 at the CCMA. On 5 August 2019, the senior convening commissioner issued subpoenas under section 142 of the Labour Relations Act requiring the second, third, fourth and fifth applicants (who were SABC employees/managers, including very senior managers in the cases of the second and fifth applicants) to attend the arbitration hearing and produce documents. The subpoenas were issued following proper written motivations in terms of Rule 37 of the CCMA rules. On 15 August 2019, the applicants launched an application to have the subpoenas set aside, arguing they were an abuse of process, unnecessary, and prejudicial, particularly to senior managers who would need to spend two days at the CCMA.

• Whether the Labour Court has jurisdiction to set aside subpoenas issued by the CCMA under section 142 of the LRA outside of a review application
• Whether the Labour Court has general supervisory authority over CCMA decision-making
• What is the appropriate legal basis for challenging CCMA subpoenas
• Whether subpoenas issued in compliance with procedural requirements can be set aside on grounds of abuse of process without a review application
• The scope of the Labour Court's jurisdiction under sections 157 and 158 of the LRA

The application was dismissed with costs awarded to the first respondent (Ayanda Mkhize).

The binding legal principles established are: (1) The Labour Court has no general supervisory jurisdiction over CCMA decision-making; (2) Section 158 of the LRA confers powers on the Labour Court, not jurisdiction - jurisdiction is regulated by section 157; (3) An applicant seeking relief in the Labour Court must identify a specific provision in the LRA (or other law) conferring jurisdiction on the court to hear the matter; (4) There is no provision in the LRA conferring jurisdiction on the Labour Court to supervise the manner in which the CCMA exercises its statutory powers outside of specific mechanisms such as review under sections 145 and 158(1)(g); (5) Where CCMA subpoenas have been issued in compliance with all procedural requirements of section 142 of the LRA and Rule 37 of the CCMA rules, they cannot be challenged in the Labour Court on grounds of abuse of process without bringing a proper review application under section 158(1)(g); (6) The fact that similar orders have previously been granted does not itself create jurisdiction where none exists.

The court made several important non-binding observations: (1) If the Labour Court were to exercise supervisory powers over the CCMA director's discretion, it would need to clarify whether intervention would be justified simply because the court would have reached a different conclusion (which would amount to an impermissible appeal) or only on review grounds; (2) Review under section 158(1)(g) is available where the decision is not one a reasonable decision-maker could reach, where the director misconceived the nature of the enquiry, or on legality or common-law review grounds; (3) There is no reason why reviews could not be brought on an urgent or expedited basis, dispensing with the usual forms and service requirements; (4) The CCMA director is required under section 142 to consider written motivations and make rational and reasonable decisions when issuing subpoenas; (5) Any abuse of section 142 can be addressed directly with the presiding commissioner before or during the arbitration hearing; (6) Arbitrators have sufficiently broad statutory powers to deal with abuse of the arbitration process, including improper use of subpoenas, and can vary the terms of subpoenas having regard to the circumstances of each case; (7) In extreme cases, abuse of the subpoena process may amount to contempt of the Commission and be liable to sanction; (8) A person subpoenaed may seek direction from the arbitrator as to how they should make themselves available; (9) The issuing of a subpoena is an interlocutory matter that the presiding arbitrator can manage.

This case is significant in South African labour law as it clarifies the limits of the Labour Court's jurisdiction and the proper procedure for challenging CCMA subpoenas. It establishes that the Labour Court does not have general supervisory powers over CCMA decision-making and that challenges to procedurally compliant subpoenas must be brought by way of review under section 158(1)(g) or dealt with by the presiding arbitrator. The judgment reinforces the principle that jurisdiction must be specifically conferred by statute and cannot be assumed. It also confirms the role of arbitrators in managing their own processes and dealing with potential abuses of process, including the improper use of subpoenas. The case provides important guidance on the separation of powers between the Labour Court and the CCMA, and on the appropriate remedies available to parties challenging CCMA decisions.