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[2022] ZALAC 1
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Ruselo v Sutherland Transport and Others (PA3/20) [2022] ZALAC 1; [2022] 4 BLLR 347 (LAC); (2022) 43 ILJ 1320 (LAC) (18 January 2022)

Reportable
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Case no: PA3/20
In the matter between:
THEMBISILE RUSELO

Appellant
and
SUTHERLAND TRANSPORT

First

Respondent
TRUSTEES FOR THE TIME BEING OF
SUTHERLAND EMPLOYMENT
TRUST

Second Respondent
DAVID STEPHANUS VAN DER WESTHUIZEN N.O.

Third Respondent
IRENE MARIE VAN DER WESTHUIZEN
N.O.

Fourth Respondent
Heard:
11 November 2021
Delivered:     Deemed to be the date on which
the judgment is first emailed to the parties 18 January 2022.
Coram: Waglay JP, Coppin JA et Kubushi AJA
JUDGMENT
COPPIN JA
[1]       This is an appeal
against the order of the Labour Court (Lallie J), dismissing an

application by the appellant to make into a court order an
arbitration award, which had been granted in his favour by an
arbitrator,
acting under the auspices of the National Bargaining
Council for the Road Freight and Logistics Industry(NBCRFLI) (“the
bargaining
council”), against “Sutherland Transport”.
Leave to appeal was granted on petition to this court.
[2]      In
his application the appellant had sought an order in the following
terms: “1. Directing
that the arbitration award issued in the
matter [of]
Thembisile R Ruselo v
Sutherland Transport
dated 10 June 2016
under case number PERFBC 37810 be made an order of court in terms of
section 158 (1)(c) of the Labour Relations
Act; 2. Directing that the
citation of the First Respondent shall be corrected in terms of Rule
22 of the Labour Court Rules [to]:
THE TRUSTEES FOR THE TIME BEING
N.O. OF THE SUTHERLAND EMPLOYMENT TRUST, alternatively, substituting
the First Respondent with
the Second Respondent’s citation: THE
TRUSTEES FOR THE TIME BEING OF THE SUTHERLAND EMPLOYMENT TRUST;
and/or 3. Directing
that, in terms of Rule 22 of the Labour
Court Rules, the Third Respondent, David Stephanus Van Der Westhuizen
N.O. a trustee of
SUTHERLAND EMPLOYMENT TRUST, and the Fourth
Respondent, Irene Marie Van Der Westhuizen, a trustee of SUTHERLAND
EMPLOYMENT TRUST
be joined as Third and Fourth Respondent herein,
and/or that the First Respondent is to be substituted with their
respective citations;
4. Directing that the Respondents who opposes
the relief sought by the Applicant to be ordered to pay the costs of
this application;
5. Granting the Applicant further and/or
alternative relief.”
[3]       The court
a quo
dismissed the application, which was opposed by the trustees (for the
time being) of the Sutherland Employment Trust (“the
trust”),
effectively, on the basis that the appellant, according to the court
a quo
, did not cite the employer, that is the trust, in the
Bargaining Council so that the trust, could have become a party to
those
proceedings, and be afforded an opportunity to oppose the
appellant’s claims in that forum. In that regard the court
a
quo
, essentially, accepted and decided the application on the
version proffered by the trustees of the trust, namely, that it did
not
participate in the proceedings in that forum.
[4]       The court
a quo
found, essentially, that even though the award was subsequently
varied by the Bargaining Council to reflect the trust as the
employer,
the variation was ineffective, and that its joinder and
that of its trustees could not succeed after the award had been made,
nor
could the application to make the award an order of court.
According to the court
a quo
, since the award related to an
entity “Sutherland Transport”, which was non - existent,
there were no legal grounds
for making the award an order of court in
the absence of a respondent against whom such an order could be
enforced.
[5]       The issue for decision
in this appeal is thus, ultimately and essentially, whether
the
relief sought by the appellant was competent, and whether he ought to
have been granted alternative relief in order to render
the award
effective against the trustees (for the time being) of the Sutherland
Employment Trust, in their capacity as such.
Common cause facts
[6]       The following facts
under this heading are either common cause or are not disputed.
[7]       The appellant was
employed as a driver by an entity (the trust), when he was dismissed

on 8 October 2015 for alleged misconduct following a disciplinary
hearing.
[8]       The appellant referred
an unfair dismissal dispute to the bargaining council in which
he
cited “Sutherland Transport” as the employer. All the
necessary and relevant notices in the proceedings in that
forum were
served on the employer party, as cited, at 28 Kurland Road,
Perserverance, Port Elizabeth (now Gqeberha), which is the
(business)
address shared by the trust and the trustees.
[9]       At no stage before or
during those proceedings which culminated in the issue of the
award
did those appearing for and representing the employer party in that
forum contend or allege that the true employer, namely,
the trust was
not before, or not properly before that forum.
[10]     Following an unsuccessful
conciliation the matter was referred to arbitration where the
appellant
represented himself and where the employer party, which
still did not object to its citation as “Sutherland Transport”,

was represented by a Human Resources Administrator in its business,
including that of the trust, namely, Mrs Marionette Marais
(“Mrs
Marais”). The appellant gave evidence and three witnesses were
called to testify on behalf of the employer party,
namely, Mr Deon
Van der Merwe (“Mr Van der Merwe”), an attorney who was
also linked to and involved in the human resources
functions of the
business, including that of the trust, and who also presided at the
appellant’s disciplinary hearing, Mr
I Booysen, who worked for
the employer party’s business, including that of the trust, as
a controller, and Mrs Celeste Van
der Walt.
[11]     At the conclusion of the
arbitration proceedings, in the written award dated 10 June 2016, the

arbitrator who presided at the hearing, Mr LER Koorts, held as
follows in favour of the appellant: “41. I find that the
dismissal of the Applicant was unfair; 42. The Respondent, Sutherland
Transport is ordered to reinstate the Applicant, Mr T.R. Ruselo
in
his previous position as driver at the same remuneration and terms
and conditions of employment that presently prevails for
the position
of a driver. 43. The reinstatement is made retrospectively from 1
February 2016. The Applicant must report for duty
on Monday, 20 June
2016 at the normal starting time. 44. The Respondent must in addition
pay the amount of R 37 200 – 20
to the Applicant within
fourteen (14) days of the date of this award which is payment as a
result of his reinstatement for the
period of 1 February 2016 to 19
June 2016 (4.6 months calculated as follows: R8087 (basic salary) x
4.6 months = R 37 200 –
20).”
[12]     The appellant only got the award
from the Bargaining Council on 21 June 2016 whereupon he reported
for
duty. The employer party refused to comply with the award. The
appellant was told by Mrs Marais, the Human Resources Manager,
who
represented the employer party at the arbitration, that he was not
welcome there; that he would not be reinstated and that
the appellant
should approach the Bargaining Council for further assistance since
he saw fit to lodge a dispute with it.
[13]     The appellant approached the Legal
Aid office in Gqeberha for assistance. An application in terms
of
section 158 (1)(c) of the LRA was launched in order to make the award
an order of court. In response, and for the first time,
in an email
to the appellant’s legal representative, the representatives of
the employer party intimated that the employer
was the trust, and
contended that it was not obliged to comply with the award as the
trust had not been cited.
[14]     This caused the appellant, acting
on the advice he got from the Legal Aid office, to abandon
the
application and, instead, pursue an application in the Bargaining
Council to vary the award made by Mr Koorts so as to reflect
the
employer as the trust. That application was opposed by the trust,
which, seemingly, was represented by the same Mr Deon van
der Merwe,
who presided at the disciplinary hearing and who testified on behalf
of the employer party at the arbitration before
Mr Koorts. The matter
was dealt with by another Commissioner, Mr Samuel Baron, on the
papers that had been submitted by the parties.
[15]     In a variation ruling dated 5
August 2016, after having analysed the evidence and the arguments

presented by the parties, Mr Baron ruled as follows: “36. The
award under case number PERFBC 37810 is hereby varied to reflect
that
the Respondent is Sutherland Employment Trust and in all instances in
the award where it states Sutherland Transport are varied
to state
Sutherland Employment Trust.” In arriving at that conclusion Mr
Baron was satisfied that the employer party that
was before the
Bargaining Council all along was in fact the trust.
[16]     The trust still did not comply with
the award as varied, instead, the variation ruling was taken
on
review, seemingly by the trustees (for the time being) of the trust,
Mr and Mrs van der Westhuizen, who, respectively, are the
third and
fourth respondents in this appeal, and, seemingly, represented by Mr
Van der Merwe, as attorney. The main ground relied
upon was that the
variation had been made by a Commissioner other than Mr Koorts, and
that he had no jurisdiction to make such
a ruling because he had not
been authorised to do so by the Director of the Commission for
Conciliation, Mediation and Arbitration
(CCMA). The Labour Court
found accordingly, set aside the ruling of Mr Baron and referred the
matter back to the Bargaining Council
for re-determination before a
different panellist.
[17]     When the matter had to be dealt
with again Mr Koorts “recused” himself, and it was

attended to by another Commissioner, Mr Bulelani Busakwe. Mr Van der
Merwe, the attorney who gave evidence on behalf of the employer
party
at the original arbitration, represented the trust and took a similar
point to the one taken in the first review, arguing,
in essence, that
the Commissioner had no jurisdiction to vary the award as he not been
authorised by the Director of the CCMA to
deal with it.
[18]     Mr Busakwe, the Commissioner, in a
well-reasoned variation award dated 7 November 2017, rejected
that
argument, finding, in essence, that a panellist of the Bargaining
Council other than the one who made the original award may
in the
absence or due to the incapacity of that panellist, vary, or correct
an error in an award, or ruling, as contemplated in
section 144 of
the LRA and that no additional authorisation from the Director of the
CCMA was required to do so, since those powers
had already been
delegated to the Bargaining Councils. The Bargaining Council could
authorise a panellist to deal with a matter
previously dealt with by
another panellist where circumstances require the appointment of
another panellist. Mr Busakwe referred,
inter alia
, to the
provisions relating to the powers of accreditation published in the
Government Gazette.
[19]     In conclusion, Mr Busakwe made the
following ruling: “40. The Respondent’s contention
that I
do not have the authority to deal with this matter and/or that I was
not appointed in compliance with section 144 of the
LRA is dismissed.
41. The arbitration award of Martin Koorts in this matter dated 10
June 2016 is hereby varied, specifically any
reference to Sutherland
Transport/Employer/Respondent is with reference to Sutherland
Employment Trust.”
Mr
Busakwe too was convinced that the employer party that had been
before the Bargaining council since inception, was, in fact,
the
trust.
[20]     Instead of compliance with the
award following the second variation ruling, the trustees for
the
time being of the Sutherland Employment Trust, presumably emboldened
by their success in the previous review application, chose
yet again
to take it on review on behalf of the trust, on effectively the same
grounds that it relied on in the previous review.
[21]     Understandably frustrated with,
what appears to be technicalities utilised by the party whom
he
perceived to be his employer to avoid compliance with the award made
by Mr Koorts, the appellant brought the application which
is the
subject of this appeal. The appellant states the following in that
regard: “Therefore, instead of opposing the review,
and instead
of relying on the variation ruling during this present application
for purposes of having the award made an order of
court (which in any
case again reflecting the incorrect varied citation which was
requested by me in my variation application)
I elect to approach the
Court directly via the present section 158(1)(c) process and in
respect of Rule 22(5). This process will
ensure that the matter is
dealt with speedily and give clarity and finality to both parties.”
[22]     Significantly, the appellant
further states under oath in his application: “The matter
is
not
lis pendens
and/or
res judicata
. I withdraw all
other applications serving before this Court. The variation ruling
(even if not formally set aside, to which I
in any case hereby
consent to having reviewed and set aside and also in terms of a rule
17 consent under case no PR 257/17), also
does not impact negatively
on the court’s powers herein, since it still fails to reflect
the correct legal citation as requested
in this present application.
It accordingly does not concern the same cause of action.”
[23]     Unpacked, in essence, the appellant
contends in the application,
inter alia
, that, the variation
ruling (i.e. of Mr Busakwe) reflecting the name of the employer as
“Sutherland Employment Trust”
was, in any event, not
correct, because the trustees (for the time being) of the trust had
to be cited and on that basis conceded
to the review application that
had been brought in respect of that ruling.
Discussion
[24]    Section
158(1)(c) of the LRA pertains to the power (discretion) of the Labour
Court to make “any
arbitration award or any settlement
agreement an order of court.” And Rule 22 of the Labour Court
Rules deals with the joinder
of parties, interventions as applicant
or respondent, amendments of citation and the substitution of parties
in proceedings in
the Labour Court. Rule 22(5) provides: “if in
any proceedings it becomes necessary to substitute a person for an
existing
party, any party to such proceedings may, on application and
on notice to every other party, applied to the court for an order
substituting their party for an existing party in the court may make
such order, including an order as to costs, or give such directions

as the further procedure in the proceedings as it deems fit.”
[25]     Besides seeking to make the award
an order of court, what the appellant sought to do was to correct
the
citation of the employer party in the award. Seemingly, in the
appellant’s perception, the Bargaining Council has repeatedly

failed to do so. The difficulty confronting the appellant was to show
that the Labour Court has the power to amend the citation
of the
party in an award of the Bargaining Council in the circumstances of
this case, in particular where the award was not before
it for review
in terms of the LRA. Patently, section 158 (1)(c) and Rule 22 do not
give the Labour Court the power to do so. The
“proceedings”
referred to in Rule 22 are proceedings in the Labour Court and not
proceedings in the CCMA or a bargaining
council.
[26]     On
the other hand, it is clear that a Commissioner of the Bargaining
Council, properly seized
with the matter could, if there was an error
in the citation of a party in an award, such as a misnomer, correct
that error. Rule
27 of the Rules for the Conduct of Proceedings
before the CCMA
[1]
specifically provides: ”If a party to any proceedings has been
incorrectly or defectively cited, the Commission may of its
own
accord, by consent of the parties or on application and on notice to
the parties concerned, correct the error or defect.”
[27]     The application therefore appears
misconceived insofar as it requires the Labour Court to do
what it
does not have the power to do. But the question in this matter is
whether there was indeed an error in the citation of
the employer
party in the award of Mr Koorts that requires correction. If there
was no error, and the employer party was merely
cited by its trade
name, instead of how a trust ought strictly, conventionally, to be
cited, the question, instead, is what the
legal ramifications of such
as citation are, more particularly, whether the award would,
nevertheless, be enforceable against the
trust, through its trustees
for the time being, and its assets. The Bargaining Council itself
does not have the power to make a
declaration in that regard, but the
Labour Court does. Section 158(1)(a)(iv) of the LRA provides that the
Labour Court may make
an appropriate order, including a declaratory
order. In this matter, the appellant did not specifically ask for a
declaratory order,
but sought “further and/or alternative
relief” to the relief he specifically and in detail
articulated.
[28]     The appellant has contended
throughout, since this issue of the trust’s citation was first

raised, that “Sutherland Transport” was the tradename of
his employer, the trust. In affidavits submitted in proceedings
at
the Bargaining Council, for example, in an application by the
appellant for condonation there was effectively an admission on
oath
by Mrs Marais, the Human Resources person, who represented the
employer party at the arbitration hearing before Mr Koorts,
that even
though the employer party was the trust, “Sutherland Transport”
was its tradename.
[29]     In
terms of Rule 14 of the High Court Rules, it is permissible to cite a
firm, partnership or
association by its tradename. Even though that
Rule does not specifically refer to a trust, the High Court has since
held, in essence,
that the provisions of Rule 14 also apply to a
trust which conducts its business under a tradename, or a name other
than that by
which it is otherwise known
[2]
.
Business trusts do use tradenames, or names other than their
own, and it is often difficult for an ordinary person to know
or
ascertain whether he or she was dealing with a trust, a corporate
body, or a private individual
[3]
.
Rule 20 of the Labour Court Rules is the equivalent of Rule 14 of the
High Court.
[30]     The purpose of Rule 14 of the High
Court, and, by extension, Rule 20 of the Labour court, is,
inter
alia
, to simplify and streamline the citation of litigants and in
particular to obviate technical defences taken in regard to the
citation
of the litigating parties. While it is correct to cite a
trust in the name of its trustees for the time being, at least in the
context of Rules 14 (and 20), there is no reason why a business trust
which has conducted business under another, particular name,
or
tradename, cannot effectively be cited by that name and be liable in
terms of a judgment issued in that name.
[31]     Simply
using the trust’s name and not, at least expressly, citing the
actual trustees of
the trust, is also not fatal, since it is accepted
that reference to the trust in litigation may be understood as a
reference to
the trustees for the time being of the trust, whomever
they might be
[4]
.
[32]     While there is no specific rule
applicable to proceedings in the CCMA or Bargaining Councils
similar
to Rule 14 (High Court), and Rule 20 (Labour Court) there is no
reason why the position in those forums should be any different.

Proceedings there are required to be simple, streamlined and not
complicated by legal formality and procedure. Further, it is more

likely that an employee, even if assisted by a Union, may be more
familiar with the name generally used by his employer, rather
than
with the technical name, or true nature of the employer entity.
[33]     Although there is nothing wrong
with an employee citing an employer according to strict legal

convention, to make that the norm and to expect the kind of technical
precision in the citation of employer parties in proceedings
in the
CCMA, or in Bargaining Councils, which is not even required in High
Court litigation, would seriously undermine the legislated
nature and
purpose of proceedings in those forums. Therefore, the citation of an
employer in proceedings in those forums by its
tradename, or a name,
or names it also uses for its business, is not incorrect or fatal.
The employer would be bound by an award
made in that name.
[34]    In this application, which is the subject of
this appeal, the appellant has again made specific averments
that his
employer, the trust, utilised the trade name “Sutherland
Transport” and that his employer actively participated
in the
arbitration and sought to justify his dismissal. Mr David Van Der
Westhuizen, who deposed to the main opposing affidavit
on behalf of
the trust and the only other trustee, namely his wife, Mrs Irene
Marie Van Der Westhuizen, denies those averments
and, seemingly,
contends that it was only the name of another, separate, business
entity, “Sutherland Transport (Pty) Ltd”,
but also,
inter
alia
, that “Sutherland Transport” is “to the
best of [his] knowledge”, a non-existent entity.
[35]     It
is now trite that in application proceedings where final relief is
being sought the so-called
Plascon
Evans
rule is applicable
[5]
.
It effectively means that a genuine dispute of fact on the affidavits
is to be decided on the version of the respondent, unless
that
version does not create a real or genuine dispute of fact, or is so
far-fetched or so clearly untenable that the court would
be justified
to reject it on the papers. In such instances, the court must include
the fact, as alleged by the applicant, with
the other relevant facts
it takes into account in deciding whether or not to grant the final
relief.
[36]     The version of the trustees of the
trust deposed to by Mr Van Der Westhuizen, denying that the
trust was
also known by the tradename “Sutherland Transport”, and
the version that they, that is the trust and trustees,
were not aware
of and did not participate in the arbitration, are indeed so patently
improbable, far-fetched, and clearly untenable
that a court would be
justified in rejecting that version on the papers.
[37]     It is patently clear that the
employer of the appellant is utilising technicalities, albeit rather

crudely, in order to avoid complying with the award granted in the
appellant’s favour. It is playing something in the nature
of a
“cat and mouse” game and has been successful thus far,
although it should not have been.
[38]     It cannot be denied that Mrs Marais
and Mr Van der Merwe were at all material times actively
involved in
the human resources functions of,
inter alia
, the trust and
that they on behalf of the appellant’s employer instituted and
actively participated in the disciplinary proceedings
resulting in
the appellant’s dismissal; that Mr Van der Merwe chaired the
disciplinary hearing and proposed and/or imposed
the sanction of
dismissal; that even though the employer was cited as “Sutherland
Transport” at no stage in the arbitration
proceedings before Mr
Koorts was the citation objected to; Mrs Marais represented the
employer throughout  those proceedings
and Mr Van der Merwe was
a witness; Mrs Marias deposed  to an affidavit in proceedings in
the Bargaining Council were she
averred,
inter alia
, that the
appellant’s employer was “Sutherland Transport”,
and that she was employed as its Human Resources Manager.-
Mrs Marias
has also admitted that “Sutherland Transport” was a
trading name.
[39]     In addition, even though Mr Van der
Westhuizen contends that the trust (i.e. the employer) did
not
participate in the proceedings before the Bargaining Council
culminating in the award, neither he nor the other trustee, or
Mrs
Marias, or Mr Van der Merwe (an attorney) contend that their
opposition to the appellant’s unfair dismissal referral
and
their participation therein was unauthorised, a mere frolic of their
own, or at the behest of a non-existent entity. In fact,
there is no
explanation at all for the participation of,
inter alia
, Mrs
Marais and Mr Van der Merwe in the proceedings in the Bargaining
Council that culminated in the issue of the award by Mr Koorts.
[40]     Even though the Labour Court could
not correct the award, it did not have to, because on the
facts,
properly determined as assessed, there was nothing to correct. In
addition to making the award an order of court by virtue
of its power
to grant the alternative relief, it merely had to declare that the
award was binding on the trust, through its trustees
for the time
being, and that the court order was enforceable against them in their
capacities as such and executable against the
assets of the trust.
[41]      The Labour Court erred in the
exercise of its discretion and failed to properly assess the
conflicting versions on the central issue, and to take into account
the correct facts, having properly determined them.
[42]     The unconscionable utilisation by
the employer (that is the trust, and more particularly the
trustees
of the trust, cited respectively as the third and fourth respondents
in the application, which is the subject of this
appeal, and in the
appeal itself) of questionable technicalities and tactics to avoid
its legal obligations, is clearly deserving
of censure, at least in
terms of the costs.
[43]     In the result, the following order
is made:
43.1    The appeal is upheld;
43.2    The order of the Labour Court dismissing the
application is set aside and substituted with the following
order:
“
1.  The arbitration award issued in
the matter of Thembesile R Ruselo v Sutherland Transport, dated 10
June 2016, under case
no. PERFBC 37810 (“the award”) is
made an order of court in terms of
section 158(1)(c)
of the
Labour
Relations Act, 66 of 1995
;
2.     It is declared: (a) that at all
material times, culminating in the making of the award the name

“Sutherland Transport” was utilised by the first
respondent; (b) that the award, and by extension this court order
is
binding on and enforceable and executable against the Sutherland
Employment Trust and its assets, and its trustees for the time
being,
namely David Stephanus Van Der Westhuizen N.O, and Irene Marie Van
Der Westhuizen N.O, in their capacity as such;
3.     The Sutherland Employment Trust,
represented by its trustees for the time being, David Stephanus
Van
Der Westhuizen N.O, and Irene Marie Van Der Westhuizen N.O, are to
comply with the terms of the award, now a court order, forthwith;
4.     The Sutherland Employment Trust,
represented by its trustees for the time being, David Stephanus Van

Der Westhuizen N.O, and Irene Marie Van Der Westhuizen N.O, is to pay
the costs of the application.”
43.3    The Sutherland Employment
Trust, represented by its trustees for the time being, David
Stephanus Van Der
Westhuizen N.O, and Irene Marie Van Der Westhuizen
N.O, is to pay the costs of the appeal.
___________________________
P Coppin
Judge
of the Labour Appeal Court
Waglay JP and Kubushi AJA concur in the judgment
of Coppin JA.
APPEARANCES:
FOR THE APPELLANT:                         Mrs

E Van Staden of Legal Aid South Africa (Gqeberha) (prev. Port
Elizabeth)
FOR THE THIRD RESPONDENT:
Mr T Potgieter of T D Potgieter Attorneys
[1]
As
Published in GG38572 under GNR.223 dated 17 March 2015.
[2]
See:
Cupido
v Kings Lodge Hotel
1999 (4) SA 257
(E) at 265B-H.
[3]
See
Cupido
(above) at 264C/D-D/E and I.
[4]
See,
inter
alia
,
Hyde
Construction CC v Deucher Family Trust and Another
2015 (5) SA 388
(WCC) para 47.
[5]
See,
inter
alia
,
Fry’s
Metals (Pty) Ltd v NUMSA & others
[2003] 2 BLLR 140
(LAC) para 37.