Qavile v Commission for Conciliation Mediation and Arbitration and Others (PA2/02) [2002] ZALAC 21; (2003) 24 ILJ 153 (LAC); [2003] 1 BLLR 1 (LAC) (4 October 2002)

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[2002] ZALAC 21
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Qavile v Commission for Conciliation Mediation and Arbitration and Others (PA2/02) [2002] ZALAC 21; (2003) 24 ILJ 153 (LAC); [2003] 1 BLLR 1 (LAC) (4 October 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
Case
No: PA 2/02
In
the matter between
QAVILE,
SC Appellant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION First Respondent
DE
KOCK, C, N.O. Second Respondent
DAIMLER
CHRYSLER (SA) (PTY) LTD Third Respondent
JUDGMENT
Du
Plessis AJA
:
In
September 1999 the Appellant was dismissed from the service of the
Third Respondent after a disciplinary inquiry relating to
the
unauthorised use of a company vehicle.
Contending
that the dismissal was substantively unfair, the Appellant referred
the dispute to the First Respondent (the CCMA).
The matter was
referred to arbitration before the Second Respondent (the
arbitrator). The arbitrator found the dismissal to have
been unfair
and ordered the Appellant’s reinstatement.
In terms
of section 145 of the Labour Relations Act, 66 of 1995 (“the Act”)
the Third Respondent (the employer) applied to the
Labour Court to
review and set aside the arbitrator’s award. The Labour Court
reviewed and set aside the reward. It further
remitted the matter
to the CCMA “for a fresh arbitration before another Commissioner
on the issue of the appropriateness of the
sanction” of dismissal.
With the
leave of the Labour Court the Appellant noted an appeal to this
Court against the whole of that court’s judgment and
order. When
the matter was called before us Mr Gauntlett for the Third
Respondent argued
in limine
that the order of the Labour
Court is not subject to appeal and for that reason alone that the
appeal must be dismissed. Due to
a misunderstanding between counsel
and the Court, counsel made submissions only as regards the point
in
limine
. Accordingly this judgment deals only with that point.
If needs be, the matter can be set down again for argument on the
other
issues raised in the appeal.
In terms
of section 166 of the Act a party has a right of appeal (subject to
leave being granted) against “any final judgment
or final order
of the Labour Court”. Mr Gauntlett submitted that the Labour
Court’s order in this case was not a final order.
Mr
Gauntlett developed the argument as follows: A review by the Labour
Court of arbitration proceedings under the auspices of the
CCMA is
governed by section 145 of the Act. Section 145(4) of the Act
provides:
(
4)
ྭྭ
If
the award is set aside, the Labour Court may—
(a) determine
the dispute in the manner it considers appropriate; or
(b) make
any order it considers appropriate about the procedures to be
followed to determine the dispute.
By
remitting the matter to the CCMA, counsel’s argument continued, the
Labour Court did not determine the dispute between the parties
in
terms of section 145(4)(a). It made an order in terms of section
145(4)(b) about the procedure to be followed to determine the
dispute
and thus, by definition, did not determine the dispute. Once it is
accepted that the Labour Court did not determine the
dispute between
the parties, it follows, so the argument concluded, that the order it
made cannot be final.
In order
for us to deal with counsel’s argument it is first necessary to
determine the nature of the dispute before the Labour
Court.
Section 145(1) of the Act provides:
“
A
party to a dispute who alleges
a
defect in any arbitration proceedings
under the auspices of the Commission may apply to the Labour Court
for an order setting aside the arbitration award ...”
(Underlining
supplied)
As is
evident from the underlined words the issue before a labour court in
review proceedings primarily is whether there has been
a defect in
the arbitration proceedings. Only if it determines that issue in
favour of the party seeking the review and sets aside
the arbitration
award, may the labour court determine the underlying dispute between
the parties to the arbitration (Section 145(4)(a)
of the Act quoted
above.). The labour court is not obliged however to determine the
underlying dispute after it has set aside the
arbitration award. It
has a discretion to make an order in terms of section 145(4)(b)
instead.
In this
case the Third Respondent followed exactly the procedure envisaged
in section 145(4): Its first prayer in its notice of
motion in the
Labour Court was for that Court to review and set aside the
arbitrator’s award. In its second prayer the Third
Respondent
sought from the Labour Court such order as it “deems appropriate
for the further conduct of the proceedings” regarding
the
underlying dispute about the fairness or otherwise of the
Appellant’s dismissal.
It is
clear from the provisions of section 145 and also from the notice of
motion in this case that the issue before the Labour
Court was
whether the arbitrator’s award should be reviewed and set aside.
Only after it so acted could, and did, the Labour
Court exercise a
discretion not to determine the underlying dispute but to remit it
to the CCMA. Accordingly, counsel’s argument
that by remitting
the matter to the CCMA the Labour Court did not determine the
dispute before it cannot be upheld. The Labour
Court determined the
review dispute and then exercised a discretion as to the
determination of the underlying dispute.
It
remains to decide whether the Labour Court’s judgment and order
was final. In terms of section 20(1) of the Supreme Court
Act, 59
of 1959 “a judgment or order” of a high court is subject to
appeal. Mr Gauntlett’s argument proceeded on the basis
that the
words “final judgment or final order” in section 166 of the Act
bear essentially the same meaning as do the words
“judgment or
order” in section 20(1) of the Supreme Court Act. As we did not
have the benefit of full argument on this point,
I specifically
refrain from deciding whether the words in the two acts bear the
same meaning and have the same practical effect.
It is for present
purposes sufficient to state that if a judgment or order has the
following attributes, it will clearly be final
within the meaning of
section 166 of the Act: If it is “final in effect and not
susceptible of alteration
by the
Court of first instance”; if it is “definitive of the rights of
the parties”; if it has “the effect of disposing of
at least a
substantial portion of the relief claimed” in the proceedings in
respect of which the judgment was given or the order
made. (See
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A)
at
532J to 553A; See also
Steenkamp v South African Broadcasting
Corporation
2002 (1) SA 625
(SCA)
.)
The
Labour Court’s order reviewing and setting aside the arbitrator’s
award was final and not susceptible to alteration by the
Labour
Court. It is definitive of the rights of the parties as regards the
alleged defect in the arbitration proceedings and the
review of the
arbitrator’s award. The order disposes of the main relief claimed
in the review application, namely to review
and set aside the
arbitrator’s award.
In the
result it is concluded that the judgment and order of the Labour is
subject to appeal and the Third Respondent’s argument
in limine
cannot succeed.
Due to
the misunderstanding to which I have made reference, we have not had
the benefit of argument on the costs relating to the
point
in
limine
. In the circumstances the costs must be reserved to be
determined when the matter proceeds.
The
following order is made:
1 The
Third Respondent’s point
in limine
is dismissed. It is held
that the judgment and order of the Labour Court is subject to appeal.
2 The
costs are reserved.
B.R.
du Plessis
Acting Judge
of the Labour Appeal Court
I agree.
R.M.M
Zondo
Judge President of
the Labour Court
I agree.
D.M.
Davis
Acting Judge of
the Labour Appeal Court
Date
of hearing: 26 September 2002
Date
of Judgement: 4 October 2002
For
appellant: Adv P.N. Kroon
Instructed by:
Drake, Flemmer & Orsmond Inc.
For
respondent: Adv J.J. Gauntlett SC
Instructed by:
Linde, Dorrington & Kirchmann Inc.