Contempt of the CCMA normally relates to either-

• Conduct during the proceedings; and or
• Conduct after the proceedings when a party fails or refuses to comply with a certified award requiring the performance of an act other than the payment of money.

Contempt in relation to conduct during the proceedings is governed by Section 142 (8) of the LRA, which provides that a person commits contempt of the CCMA –

• 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;

• If, after having appeared in response to a subpoena, that person fails to remain in attendance until excused by the Commissioner;

• By refusing to take the oath or to make an affirmation as a witness when a Commissioner so requires;

• By refusing to answer any question fully and to the best of that person’s knowledge and belief, and such refusal is not because the person claims he or she is prohibited from doing so due to legal privilege;

• If the person, without good cause, fails to produce any book, document or object specified in a subpoena to a Commissioner;

• If a person wilfully hinders a Commissioner in performing any function conferred by or in terms of the LRA;

• If a person insults, disparages or belittles a Commissioner, or prejudices or improperly influences the proceedings or improperly anticipates the Commissioners award;

• By wilfully interrupting the conciliation or arbitration proceedings or misbehaving in any other manner during those proceedings.

What procedures should be followed after a finding that contempt of the CCMA was committed?

A commissioner may refer the finding together with the record of the proceedings to the Labour Court for its decision which may include-

• The sanction that may ultimately be imposed includes suspension from appearing in any labour dispute resolution forum (in the case of a person other than a legal practitioner), a fine or in extreme cases, imprisonment. In the case of legal practitioners the Court may refer the matter to the Law Society or the Society of Advocates (as the case may be) to consider whether further action should be taken against the practitioner concerned.

What could be done to avoid /discourage contempt of the CCMA?

Commissioners should control the processes in such a way that the likelihood of contemptuous behaviour is minimised. When a party starts to behave in a manner that is bordering on contempt, Commissioners should not allow the situation to escalate. The attention of the party should calmly be drawn to the provisions of Section 142 and such party should be notified of the respects in which the conduct is perceived to border on contemptuous behaviour. It is generally advisable to take a short adjournment to allow a party to calm down and to consider the consequences of persisting with such behaviour. Generally, such steps have the desired effect and it is then not necessary for further measures to be taken.

For further information you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za