Automobile Association of SA v Govender NO and Others (DA23/99) [2000] ZALAC 19 (20 September 2000)

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[2000] ZALAC 19
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Automobile Association of SA v Govender NO and Others (DA23/99) [2000] ZALAC 19 (20 September 2000)

IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO:
DA 23/99
IN
THE APPEAL OF:
AUTOMOBILE
ASSOCIATION OF S.A.
Appellant
AND
COMMISSIONER:
S.M. GOVENDER N.O.
First Respondent
NUMSA
Second
Respondent
VINO
NAIDOO
Third
Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOFFE
AJA:
After an
internal disciplinary inquiry the third respondent was dismissed
from the appellant’s employ. This resulted in arbitration
proceedings. At the conclusion thereof, first respondent found that
the third respondent should be reinstated and that he be furnished
with a final warning on certain terms. This resulted in proceedings
being launched by appellant in terms of s 145(2) and s 158(1)(g)
of
the Labour Relations Act, 66 of 1995 (“the act”). In those
proceedings appellant sought an order reviewing and setting
aside
the first respondent’s award.
In its founding
affidavit, appellant pointed out that it had not been able to obtain
a copy of the record of the arbitration proceedings.
The appellant
relied upon three grounds for the review of the first respondent’s
award. They were:
the first
respondent’s failure to make a full and proper record of the
proceedings;
the first
respondent’s alleged misconduct during the arbitration;
the absence of
a legal nexus between the evidence led at the arbitration and the
first respondent’s finding.
The review
application came before Landman J on 15 June 1999. On 17 June 1999 he
handed down the following order: “
It is hereby ordered:
1. That
judgment will continue to be reserved until at least, the notes of
the commissioner relating to the evidence of Mr Naidoo
and Mr Lala
have been transcribed.
The
applicant is to file the transcription with the Registrar by 20 July
1999.
3.1 The
commissioner is directed to render assistance with the transcription
of the notes.
3.2 The
commissioner is to file a report regarding any mechanical recording
of the arbitration proceedings.
The parties
are at liberty to file further heads of argument by the 31 July
1999, if they so wish.”
Pursuant hereto
relevant portions of Mr. Naidoo’s and Mr. Lala’s evidence were
transcribed and the first respondent filed a
report on the absence
of the mechanical recording.
It is apparent
from the first respondent’s report that he does not have an
independent recollection of the method of recording
the proceedings
during the arbitration. He states that he caused an investigation
to be made and that no recording of the proceedings
was found. He
concludes by making the inference that
“there was no mechanical
recordings of this Arbitration”
Thereafter
Landman J delivered a judgment. In the course thereof he referred to
the absence of a transcript of the evidence and
the appellant’s
averment that the proceedings had been mechanically recorded. He
noted the first respondent’s report. He
then went on to hold that
he had decided to deal with the matter on the available evidence.
Landman J then proceeded to find
that the first respondent’s
finding, that third respondent lacked the necessary mental intention
to commit the misconduct complained
of, was justifiable. He had
however, difficulty with the sanction imposed by the first
respondent. In view hereof he made the
following order:
“
Paragraphs
2,3 and 4 of the award of the commissioner is reviewed and set
aside. The matter is remitted to the first respondent
to consider,
after hearing such evidence as the parties may tender, whether the
applicant (AA) should be ordered to re-instate
Mr Naidoo
retrospectively to the date of the arbitration award if there is
satisfactory expert evidence that the circumstances
giving rise to
the conduct are unlikely to re-occur; or; if the evidence is to the
contrary whether the applicant (AA)should be
ordered to re-employ Mr
Naidoo in a position where he does not interact with the public and
does not drive an AA vehicle if this
be reasonable feasible; or were
the compensation should be ordered.
The
application to make the award an order of court is postponed sine
die.
In the event
of a dispute arising regarding the sanction which the first
respondent may impose, the parties may re-enroll this application,
suitably amplified, for decision by this court.
The
applicant (AA) shall pay the applicants costs incurred in this
matter since 17 June 1999".
The appellant
now appeals against the judgment and order of Landman J.
As already
alluded to, the review was based on three grounds. On a reading of
the judgment, it appears that the learned Judge dealt
with two of
them, namely the first and the third ground set out in paragraph 2
above. He does not appear to have considered the
second ground,
namely the alleged misconduct of first respondent.
The misconduct
by the first respondent of which the appellant complains is set out
in para 11 of the appellant’s founding affidavit
in the following
terms:
“
11.1 it is
at the outset accepted that Section 138 (General Provisions for the
Arbitration Proceedings), clothes the presiding commissioner
with a
wide discretion as to how the presiding commissioner disposes of
matters that become before him/her.
11.2 Notwithstanding
this concession, it is submitted that the presiding commissioner
misconducted himself and acted in a grossly
irregular fashion and for
the following reasons:
11.2.1 He
failed to remain impartial
11.2.2 More
particularly the First Respondent, notwithstanding the Third
Respondent’s representation by a senior Numsa official,
took
complete control of the Third Respondent’s evidence in chief and
closing argument.
11.2.3 This
extended to the asking of leading questions concerning the issue of
the Third Respondent’s mental state at the time
of the various
incidents.
11.3 The
First Respondent continuously stated to the Third Respondent’s
legal representatives the questions that he (the commissioner)
required to be asked of the Third Respondent.
11.4 During
closing argument the First Respondent interrupted the Third
Respondent’s representative and again began asking the Third
Respondent leading questions.
11.5 The
First Respondent by way of example asked the Third Respondent:
11.5.1 You
did not really intend to damage the image of the AA, did you?
11.5.2 You
did not know the effect that the pills would have on you, did you?
11.5.3 You
did not intend to do any of the things that you did, did you?
11.6 I
objected to the First Respondent’s line of questioning and conduct
to no avail.
11.7 The
First Respondent severely curtailed and cut short my attempts to
fully cross-examine inter alia the Third Respondent
11.8 The
First Respondent adopted a one-sided inquisitorial role that was
blatantly biassed towards the Third Respondent.
11.9 It was
clearly evident from the leading questions put to the Third
Respondent as also the “questions” put to the Third Respondent’s
representative that he had at this early stage already decided on the
judgment that he intended giving as also the reasoning thereof.
11.10 The
commissioner’s “leading” of the Third Respondent as also his
representative was clearly aimed at providing a factual
basis for a
preconceived legal finding.
11.11 The
Commissioner at the time did not only obstruct my attempts to fully
canvas issues but was also dismissive. At times I was
told by the
Commissioner that he had no intention of hearing me on aspects that I
would submit were of pertinence and importance:
“This is of no
relevance”. In essence I was told in as many words to “sit down
and be quiet”.
11.12 These
issues related inter alia pertinently to the following issues”
11.12.1 A
full examination of Dr. Lala’s supposed expertise in the field of
psychiatry and the prescription and effect of drugs
that may or may
not have been prescribed and may or may not have been taken by the
Third Respondent.
11.12.2 It
should also be mentioned that notwithstanding the curtailment of my
cross-examination Dr Lala conceded that he was not
qualified to give
the evidence tendered and in terms of which the Commissioner reached
a finding.
11.12.3 I
was refused the chance to address these aspects fully in argument.
On this and other aspects was asked/told by way of example:
“What’s
this got to do with it” and “Carry on with the next thing” and
“This is not relevant”.
11.13 In
addition the Commissioner insisted upon the expert evidence of Dr
Hoosen on one occasion and said he could not make a decision
without
this critical evidence. The matter was postponed to accommodate this
directive from the Commissioner yet when the matter
proceeded he
reneged on this directive and made a decision on the medical evidence
without Dr Hoosen’s evidence which resulted
as an unfair finding in
view of this.”
The appellant’s
founding affidavit is deposed to by its general manager, human
resources and development. The deponent to the
affidavit
represented appellant in the arbitration proceedings and obviously
has personal knowledge of what occurred there.
The first
respondent did not depose to an affidavit dealing with the
allegations contained in applicant’s founding affidavit.
The
closest he comes to dealing with the serious allegations contained
therein is in the final paragraph of his report. He there
states
the following:
“The Applicant makes much of the fact that
it’s allegations regarding the recording of the proceedings is not
challenged by me
or the CCMA. In this regard, I take this
opportunity to make mention of the fact that it is not the policy of
CCMA or Commissioners
to engage in time consuming and expensive
litigation. In opposing what often seems to the spurious Review
proceedings, but rather
to leave matters in the capable hands of this
Honourable Court and are prepared to abide the decision
thereto.”
(sic).
The second
respondent filed an opposing affidavit on it’s behalf and on
behalf of the third respondent. The affidavit is deposed
to by the
second respondent’s regional legal officer one Ms E Chinnsamy.
She states
in
the affidavit that she has no personal knowledge of the facts giving
rise to the arbitration proceedings nor was she a participant
at the
arbitration hearing. Accordingly the factual averments made by the
appellant as set out above were uncontroverted before
the court a
quo.
In the absence
of an answer from the first respondent or, at least, by the second
and third respondent, the court a quo was obliged
to accept the
facts set out by the appellant in it’s founding affidavit. These
facts reflect adversely upon the first respondent.
They create the
impression that first respondent was biased against appellant in
favour of the third respondent.
S138(1) of the
act provides as follows:
“
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
disputes with the minimum of legal formalities”
The section
confers a discretion upon the commissioner to determine the procedure
to be adopted at the arbitration. He may determine
upon an
adversarial process or an inquisitorial process.
He may even
determine upon a hybrid of the two processes. His discretion is
only limited by the objective of the section, that
is, to determine
the dispute “fairly and quickly” and “with the minimum of
legal formalities.” (See Brassey, Commentary
on The
Labour
Relations Act, A7:49
. Whatever procedure the commissioner
determines upon, it must be of such a nature and, the conduct of the
commissioner in applying
that procedure must be of such nature, that
it does not create a suspicion of bias in the minds of the parties.
See Mutual and
Federal Insurance Co Ltd. v CCMA and Others (1997)12
BLLR 1610 (LC) at 1619 -1620. As was held in President of the
Republic of
South Africa and Others v South African Rugby Football
Union and Others 1999(7) BCLR 725(CC) at 747D:
“
A
cornerstone of any fair and just legal system is the impartial
adjudication of disputes which come before the courts and other
tribunals.
This applies, of course, to both criminal and civil cases
as well as to quasi-judicial and administrative proceedings. Nothing
is more likely to impair confidence in such proceedings, whether on
the part of litigants or the general public, than actual bias
or the
appearance of bias in the official or officials who have the power to
adjudicate on disputes.”
It is not clear
what procedure first respondent adopted at the arbitration. Clearly
if the adversarial procedure was adopted his
conduct was such as to
create the reasonable apprehension of bias alluded to. If the
inquisitorial process was adopted by him,
he did not sufficiently
guard against creating the reasonable apprehension of bias in the
mind of the appellant.
In the
circumstances the first respondent committed misconduct in relation
to his duties as an arbitrator and committed a gross
irregularity in
the conduct of the arbitration proceedings and the award ought to
have been set aside. See Dickenson & Brown
v Fisher’s
Executors
1915 AD 166
at 175 - 6, Hyperchemicals International (Pty)
Ltd. and Another v Maybaker Agrichem (Pty) Ltd. and Another
1992
(1) SA 89
WLD at 99F - 100B.
The learned
judge in the court a quo failed to consider this ground of review in
his judgment. He erred in this regard. He should
have considered
it and upheld it. It is not necessary to consider the appellant’s
further grounds of review.
The arbitration
proceedings are to be commenced de novo, before a different
commissioner.
In the result
the following order is made:
The appeal is
upheld with costs
The judgment
and the order of the court a quo is set aside and substituted with
the following:
The arbitration
proceedings are set aside. The arbitration is to commence de novo
before a different commissioner.
___________________
M
M JOFFE
ACTING
JUDGE OF APPEAL
I
agree
___________________
R
M M ZONDO
JUDGE
PRESIDENT
I
agree
___________________
M
T R MOGOENG
JUDGE
OF APPEAL
Counsel
for Appellant: Adv. G D Doubell
Attorneys
for Appellant: Wright Rose-Innes Inc
Representative
for 2
nd
and 3
rd
Respondents: Mr Brett Purdon
Attorneys
for 2
nd
and 3
rd
Respondents: Chennells
Albertyn & Tanner
Date
of hearing: 24 August, 2000
Date
of judgment: 20 September 2000