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[1999] ZALAC 17
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South African Commercial Catering and Allied Workers Union and others v Irvin and Johnson Limited, Seafoods Division, Fish Processing (CA10/1998) [1999] ZALAC 17; (2000) 21 ILJ 330 (LAC); [1999] 12 BLLR 1251 (LAC) (1 September 1999)
22
IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
CAPE TOWN
CASE NO 10/1998
In the
matter between
SOUTH
AFRICAN COMMERCIAL CATERING AND
ALLIED
WORKERS UNION
FIRST APPLICANT
PATRICK
NKATU AND OTHERS
SECOND TO FORTY-SEVENTH APPLICANTS
and
IRVIN
AND JOHNSON LIMITED
SEAFOODS
DIVISION
FISH
PROCESSING
RESPONDENT
JUDGEMENT
NICHOLSON JA
[1] The applicants sought an order that two of the judges, Conradie
J A and Nicholson JA, due to hear an appeal on 31 August 1999
with
Mogoeng AJA against a determination by the industrial court in terms
of section 46(9) of the Labour Relations Act, 28 of 1956,
(
>
the
Nkatu appeal
=
) recuse
themselves. The determination by the industrial court was that the
46 appellants
=
dismissal
by the respondent on 2 August 1995 did not constitute an unfair
labour practice. It is necessary to briefly set out the
background
to the present application.
[2] The respondent conducts a seafood processing operation at its
premises in Davison street, Woodstock. It has a long standing
relationship of some 15 years with the Food and Allied Workers
=
Union (
A
FAWU
@
)
and there is a recognition agreement with it as it is the majority
union. A rival union, the first applicant herein, commenced
recruiting members and on 12 January 1995 wrote to the respondent
requesting a meeting to discuss the verification of its membership.
On 20 January such a verification exercise was held and it
established that FAWU represented 49.86% and first applicant 11.17%
of the bargaining unit. A second verification exercise was held and
the corrected results established on 11 April 1995 that 55.89%
adhered to FAWU and 26.15% declared allegiance to first applicant.
There has been intense rivalry between the unions in their quest
for
membership.
[3] Applicants believed that the respondent favoured FAWU over and
above first applicant and that subsequent events bore out such
favouritism. FAWU and the first applicant are both affiliated to
COSATU and on 5 April 1995 the latter advised the respondent that
a
commission was being set up to investigate the allegations of
violence and intimidation which were being bandied about between
the
two unions. Nothing appears to have come of this though COSATU
resolved in September that the first appellant withdraw from
the
respondent in the light of its
>
one
union one industry
=
philosophy.
[4] On 15 June Patrick Nkatu (
A
Nkatu
@
),
the second applicant herein, approached the respondent
=
s
Mark Anema (
A
Anema
@
)
on behalf of the first applicant requesting permission for a lunch
time march to present a petition to the respondent. The petition
addressed the allegedly inconsistent manner of handling discipline
and demanded the immediate reinstatement of one Samuel Petersen
as
it was believed he had been unfairly dismissed. The second demand
was for the right of access for first applicant
=
s
officials to the premises of the respondent. The respondent was
given three days to respond, failing which the protesters threatened
to
>
take action
=
.
The response of the respondent was that Petersen had been dismissed
after proper compliance with the disciplinary code and that
its
attitude concerning access was a matter of public record, given the
minority status of the first applicant. The company deprecated
the
tone of the petition.
[5] On Monday 19 June the first applicant
=
s
members heeded a call for a national stay-away by COSATU. On 21 June
the respondent initiated an investigation into the absenteeism
on 19
June and called in individual workers to account for their absence.
The persons took exception to this and suggested that
those who took
part should be dealt with collectively as their action had been
collective in nature.
[6] Nkatu then obtained permission to have a meeting of the first
applicant
=
s members
during lunch on 21 June. At this meeting it was resolved to march to
the general manager
=
s
office on that day at15h00. Anema received a phone call from Nkatu
in which the latter, on Anema
=
s
evidence, demanded the reinstatement of Petersen and Maqekeza,
another employee recently disciplined, and access to the facilities
at the factory for the first applicant. If these demands were not
met then production would not continue. The march consisted of
some
200 persons who encountered three FAWU shop stewards Richard Antoni,
Ivan Jeremiah and Angeline Williams. There is a dispute
about who
the aggressors were at this stage. Antoni was subsequently killed
on 29 August 1995 while on his way home. His assailants
have never
been identified or apprehended. His statement was admitted as
evidence. The evidence of the three shop stewards painted
a picture
of the 200 members of the first applicant armed with an assortment
of weapons including sticks, metal poles, bin hooks
and knives
pushing past them and assaulting two of them including stabbing
them.
[7] Individual appellants testified that, apart from the
confrontation with the FAWU shop stewards (in which it was said that
two of the first applicant
=
s
members had been stabbed), the march was a peaceful one with the
legitimate purpose of handing a demand to Carlin, the respondent
=
s
general manager, and that there were no threats or intimidation. In
the heads of argument their counsel summarise the position
as
follows
A
when the
marchers were in the corridor, three FAWU shop stewards approached
the march from the opposite direction. A confrontation
ensued
between the marchers and two of the three FAWU shop stewards. Chaos
ensued during which
>
people
started running
=
. The
marchers split and reassembled, having armed themselves with bin
hooks and various other objects.
@
[8] The version of witnesses called by the respondent was that after
the incident involving the FAWU shop stewards members of the
crowd
of workers moved through the production areas brandishing their
weapons and any person still intent on working was coerced
out of
the factory. Management decided at about 4.30 pm that all staff
should go home. The remaining employees were given a notice
requesting them to leave the premises by 8pm which they acceded to.
[9] Following an investigation by the respondent 188 of the first
applicant
=
s members were
suspended. There was a mediation process as a result of which 134
employees were suspended for 4 months without pay
and were issued
with final written warnings. The remaining 46 employees faced
disciplinary hearings. They were dismissed and the
appeal due to be
heard on 31 August was against that finding.
[10] The dismissal of the 46 employees caused the first applicant to
call for protest action outside the respondent
=
s
premises on 25, 29 and 30 August 1995. The respondent dismissed 35
of the protesters, 17 of whom had received final written warnings
as
being part of the 134 employees mentioned above.
[11] The first applicant brought proceedings in the industrial court
for a declaration that the dismissal of the 35 constituted
an unfair
labour practice and that court reinstated 18 of them - those without
final written warnings - and confirmed the dismissal
of the 17
employees with written warnings.
[12] The first applicant appealed against the decision upholding the
dismissals of the 17 employees and the respondent cross appealed
against the refusal to confirm the dismissal of the 18 employees.
Judgement was given in that matter (hereinafter referred to as
the
Nomoyi matter) by Conradie JA, with Froneman DJP, and Nicholson JA
concurring, dismissing the appeal by the first applicant
and
upholding the cross appeal of the respondent. The nett effect of the
judgement was that the dismissal of the 35 employees by
the
respondent was confirmed.
[13] To sum up then - the Nomoyi matter dealt with conduct which
occurred later in time namely at the end of August 1995 and the
appeal was heard by the judges I have mentioned. The dismissal of
the 46 employees related to events earlier in time namely 21
June
1995 and that appeal was due to be heard on 31 August 1999. Broadly
speaking the application for recusal is directed at the
fact that
the unanimous judgement in the Nomoyi matter dealt with the events
of 21 June and other background material in setting
the scene for
the dismissal of the persons for the conduct at the end of August.
[14] The applicants do not suggest that the application addresses
any issue apart from the findings in the Nomoyi judgement. In
other
words, no other ground for recusal such as any prior relationship to
any of the parties or any improper motive was advanced.
The first
submission advanced in the applicants
=
heads of argument in the appeal proper relates to the fact that
there was no proof that each individual employee took part in the
march or shared a common purpose with those who did. The case of
individuals is also advanced on the basis that there was
insufficient
evidence to show that they participated in the said
march. The second point raised in the heads is that the work
stoppage was directed
against a refusal by the respondent to deal
with the employees collectively and that such refusal was unfair and
that no ultimatum
was ever issued. In essence the appellants
intended to argue that their conduct was justified given the
decision to discipline
them individually. The third argument
addresses the fairness of the disciplinary procedure contained in
clause 3.11 of the mediated
agreement to deal with the misconduct of
21 June. Finally applicants argue that retrospective reinstatement
is the appropriate
remedy for the unfair labour practice which took
place. None of these arguments were considered in the Nomoyi
judgement.
[15] The applicants in this recusal application have cited a number
of passages in the judgement in the Nomoyi matter to illustrate
the
submission that there is a reasonable apprehension that the two
judges whose recusal is being sought would be biased against
them in
the Nkatu appeal. It is important to bear in mind that the Nkatu
appeal deals specifically with the events of 21 June 1995.
During
the hearing of the Nomoyi matter evidence was tendered on behalf of
the respondent concerning the events which had taken
place on 21
June 1995. That evidence was uncontroverted by the appellants in
that matter, including the first applicant herein.
The failure to
contradict the evidence of the respondent as to the events of 21
June 1995 meant that the evidence of the company
had to be accepted
where it was not so inherently improbable as to warrant rejection
without controverting testimony.
[16] The applicants mention the fact that the judgement in the
Nomoyi matter referred to the suspension of
>
those
employees who had misconducted themselves in this manner
=
on 21 June 1995. After dealing with the protest demonstrations of
25, 29 and 31 August the court held that
>
It
was in this atmosphere of alarm and despondency [on 21 June 1995]
that the next demonstration occurred [ on 25, 29 30 August
1995]
=
.
[17] Richard Antoni was murdered at the Heideveld train station and
the court held as far as his killing was concerned, as follows
>
[a]ccording to
reports received from Anema, some of the staff at Woodstock were
with him at the time of his murder and identified
his assailants as
members of the group that had caused chaos in the factory on 21
June. These reports were elicited from Anema
in cross-examination,
so that what would otherwise have been hearsay, became admissible.
=
[18] With regard to the demonstrations Conradie JA held that
>
[j]udging by the
measures taken by the respondent, Anema did not, in my view,
exaggerate the effect of the demonstrations on the
morale of the
workforce and on their productivity.
=
The court also preferred the version of Catto and Anema to the
protestors
=
contention
that there was no intention to disrupt the respondent
=
s
business and that care was taken to avoid disruption by letting all
the vehicles through the protesting throng.
[19] The court in its judgement referred to the
>
upheaval
of 21 June 1995' and on another occasion stigmatized the events as a
>
frightening
eruption
=
. It described
the evidence of Zoe Holland as
>
sophistry
=
.
It also remarked that
>
compliance
with proper procedures and a regard for legal requirements was not
sufficiently high on SACCAWU
=
s
agenda...
=
. Holland was
further criticized for her behaviour after receiving information
about the High Court interdict in the following terms
A
I
find it disturbing that, despite being entitled to the day off, she
made no attempt to communicate the terms of the order to any
responsible official of SACCAWU. At the very best for Holland, she
was guilty of gross dereliction of duty. A high court interdict
is
not a trifle. A body like a trade union which, through an official,
has knowledge of such an interdict is not entitled to take
up the
stance that it will do nothing to obey the order until it has been
served. That seems to have been the SACCAWU attitude..
It behaved
irresponsibly in not immediately dispatching an official to
Woodstock to ensure that the terms of the interdict were
meticulously obeyed...
@
[20] With regard to this evidence the court held that
>
[t]his
confrontational attitude is really not out of keeping with that
displayed throughout by the demonstrators, by their leaders
and by
SACCAWU
=
s officials.
=
The court went on to hold that
>
in
the light of all these factors, the appellant
=
s
argument that the conduct of the demonstrators was not, and could
not have been seen to be, intimidatory, cannot be accepted
=
.
[21] Conradie JA held that
>
by
disrupting the respondent
=
s
business, SACCAWU could reveal itself as the more powerful and
militant union whose demands could only be rejected at the
respondent
=
s peril. It
was, it seems to me, determined to build upon the image of the
defiant union it had begun to establish in June of that
year.
=
[22] The present applicants also point out a number of passages in
which credibility findings are made in favour of the witnesses
of
the respondent and record that the judgement was
>
scathing
=
of the conduct of the appellants in that matter by stating that
>
anyone who bedevils
industrial relations in this way can expect no sympathy from the
courts.
=
[23] These, then, are the findings of which the applicants complain
to found the submission of their reasonable apprehension of
bias.
They fall into four categories. Firstly those relating to the events
of 21 June, where the appellants in the earlier proceedings
had led
no evidence at all. The allegations of the applicants are that the
judgement criticized the conduct of employees on 21
June. It is
clear from the heads of argument that applicants
=
own counsel described the circumstances as
>
chaotic
=
and appears not to challenge that certain employees misconducted
themselves. The second category relates to criticisms of the conduct
of first applicant; the third to those critical of Ms Holland
=
s
conduct and finally those dealing with credibility. Prior to dealing
with the last three categories of complaint it is necessary
to deal
with the principles governing recusal applications.
[24] Although the right to a fair trial runs throughout our common
law jurisprudence it found majestic form and content in section
34
of the Constitution of the Republic of South Africa, Act 108 of 1996
which provides for the right of everyone
>
to
have any dispute that can be resolved by application of law decided
in a fair public hearing before a court or, where appropriate,
another independent and impartial tribunal or forum
=
.
[25] It is clear from the authorities that in an application for
recusal the applicants have to show that they entertain an
apprehension
of bias on the part of the court which apprehension is
reasonable. See
Monnig and Others v Council of Review and Others
1989(4)SA 866(C) at 876B- 879I, 1992(3) SA 482(A) at 495A-D, S v
Malindi 1990(1)
SA 962 (A) at 969G-970D, BTR Industries SA (Pty) Ltd
v Metal and Allied Workers
=
Union 1992(3)SA 673 (A) at 688E-695B, Moch v Nedtravel (Pty) Ltd t/a
American Express Travel Service 1996(3)SA 1 (A) at 8H-I, Absa
Bank
Ltd v Hoberman and Others
1998 (2) SA 781
(C) at 795C -800H,
President of the Republic of South Africa and Others v SA Rugby
Football Union and Others 1999(7) BCLR 725 (CC)
(the
>
Sarfu
=
judgement).
[26] It seems clear that the decision in this matter is one to be
made by the whole court, not just the judges whose recusal is
sought. See the Sarfu judgement op. cit. page 747 A-C. There is no
rule in South Africa which lays down that a Judge, in cases
other
than appeals from his judgment, is disqualified from sitting in a
case merely because in the course of his judicial duties
he has
previously expressed an opinion in that case. See
R v T 1953(2)
SA 478 (A) at 482G-483G.
The court held in that case that in the
case of a trained judicial officer the mere possibility of bias not
based on a previous
extra judicial opinion in relation to the
case he is going to try or on his hostility or relationship to or
intimate friendship
with one of the parties or on an interest in the
case, does not disqualify him from trying the case. In that case a
magistrate,
who had convicted the female accused of contravening
section 2 of Act 5 of 1927 (the Immorality Act), had thereafter
refused to
recuse himself from trying the case against the male
accused in which the convicted female was a witness. It was held
that such
magistrate was not disqualified from trying the case.
[27] Mr Arendse, who appeared for the applicants, together with Mr
Grobler and Miss Fourie, sought to distinguish R v T (supra)
on the
basis of the decision in
S v Somciza
1990 (1) SA 361
(AD) at
366A-G
. In that case the court considered the re-trial before
the
same
magistrate of an accused, whose conviction and
sentence by that magistrate had been set aside by the High Court.
The Supreme Court
of Appeal distinguished R v T on the basis that a
different accused was being tried and that the court in Somciza
=
s
case was dealing with the same accused whose case had been referred
back to the same magistrate for the accused to give evidence.
The
magistrate had made positive credibility findings of the State
witnesses which would not engender any confidence in an accused,
who
had still to give his evidence. It is clear that in Somciza
=
s
case the magistrate was dealing with the same set of facts. In this
application the comments set out above in the judgement in
the
Nomoyi matter deal with the same personalities - for example the
members of the respondent company and the trade union officials,
in
some instances (save for the employees, who are different), but
with different sets of events. It does not seem to me that
Somciza
=
s case assists
the applicants.
[28] Reference was also made by Mr Arendse to Moch
=
s
case (supra) in which the facts were totally different. The
petitioner (appellant) had been the respondent in an application in
a Local Division for the sequestration of her estate. At a certain
stage in the proceedings before the provisional order of
sequestration
was granted, the appellant brought an application for
the recusal of the presiding Judge. The application was based on
information
she had gained concerning the strained relationship
between the presiding Judge and her attorney. The application for
the recusal
of the presiding Judge was heard by him and dismissed.
The application for a provisional order of sequestration was then
dealt
with and a provisional order granted. On the return day the
matter came before another Judge and a final order was granted,
there
having been no appearance for the appellant. An application
for leave to appeal against the provisional order of sequestration
and the refusal of the application for recusal was dismissed. It was
held that it was for the appellant (petitioner) to satisfy
the Court
that the grounds for her application were not
frivolae causae
,
i.e. that they were legally sufficient to justify the recusal of the
presiding Judge. (At 12G/H H.) It was held, further,
that it
was not necessary to deal with the presiding Judge's finding that
the application for his recusal 'was contrived and frivolous,
and
not based on a
bona fide
and honest belief of a probability
of bias on (his) part' as the way in which the presiding Judge
handled the recusal application
disqualified him, irrespective of
its merits and demerits, from proceeding with the sequestration
application: on this view it
was unnecessary to consider either the
factual proof or the legal sufficiency of the grounds for the
recusal application. (At 13D E.)
[29] The Supreme Court of Appeal found that a reading of the record
left one in no doubt that the presiding Judge found the application
for his recusal highly offending and regarded it as an assailment of
his personal integrity. (At 13E E/F.)
[30] It was in that context therefore that the Supreme Court of
Appeal held that, when during argument in the recusal application
the presiding Judge forcefully brought it home to the appellant's
counsel that she could not be believed, she at that stage already
had every reason to despair of her evidence being accepted in the
main proceedings; and having regard to the presiding Judge's
rejection in his judgment of the most material part of her founding
affidavit, effectively finding her to have been a perjurer
who had
deliberately attempted to deceive him, the appellant could have had
no confidence that her evidence in the main proceedings
had been
considered with an open mind. (At 15H/I J.)
[31] The situation in Moch
=
s
case differs
toto caelo
from this matter. The Nomoyi
judgement was delivered on appeal after a full ventilation of the
relevant issues in the industrial
court. It dealt with different
employees and different events, though the events of 21 June 1995
(relevant for the Nkatu appeal)
formed part of the background. No
reliance is placed on the manner in which the application for
recusal was dealt with in this
matter.
[32] Mr Arendse also submitted that the case of R v T was decided
under the court
=
s common
law jurisdiction and that there is a fundamental difference under
the new constitution. The difficulty I have with this
argument is
that the Constitutional Court dealt with a recusal application in
the SARFU matter in the light of the relevant sections
of the
constitution and, apart from preferring the phrase
>
apprehension
of bias
=
to a
>
suspicion
of bias
=
, approved the
test as applied under the common law.
[33] Trade unions and companies are frequent litigants in the
courts. Only the morbidly pessimistic or the unrepentant cynic would
believe that a finding against one or the other on one occasion will
necessarily imply that they are stigmatized as mendacious
on
subsequent occasions. It is one of the attributes of a trained
judicial officer that he views afresh the witnesses in each case.
It
has been held that it would be impossible to conduct the
administration of justice in a proper way if judicial officers
recused
themselves because at some prior time they expressed
unfavourable opinions in court about persons who subsequently came
before
them. See
R v Heilbron
1922 TPD 99
at 100, Law Society v
Steyn 1923 SWA 59 at 60 and Miller and Another v Magennis
1924 CPD
295
at 298
.
[34] The problem alluded to in the previous paragraph is compounded
in the Labour Court and the Labour Appeal Court. The judges
who
preside in these courts are limited in number. Of necessity judges
deal regularly with the same unions and companies and in
many
instances the same officials and office bearers. Apart from the
principles enunciated above with regard to the training of
judicial
officers to look afresh at every case, vast logistical difficulties
would attend upon recusal at the instance of a party
whose witnesses
have been disbelieved on some prior occasion.
[35] The practical problems mentioned should not, however, mask the
true enquiry in every case namely whether there is a reasonable
apprehension of bias. We have considered this question most
anxiously and can find no evidence for it. On the authority of the
case law set out above there is no basis for recusal. The adverse
findings against the first applicant and Ms Holland are, in any
event, of very little relevance in the present appeal. I have made
mention of the main points advanced by the appellants
=
counsel in the heads of argument. The first applicant and Ms Holland
play very little if any part in the events which enfolded
on 21
June. The actions were initiated by Nkatu and the officials of
first applicant only made their appearance on the scene later
in the
day. The officials of first applicant were not eye witnesses to the
actions of the employees during the march. Any positive
credibility
findings with regard to the respondent
=
s
witnesses concerning the events of 21 June were made in the context
of their evidence being uncontroverted. The application therefore
falls to be dismissed with costs, including those attendant upon the
employment of two counsel.
_________________________
Nicholson
JA
I
agree.
__________________________
Conradie
JA
I
agree.
___________________________
Mogoeng
AJA
Date of hearing 31 August 1999
Date of judgement September 1999
Appearance for applicants Adv N Arendse SC, Adv Grobler and Adv
Fourie
Appearance for respondent Adv Rose-Innes SC