Amalgamated Beverage Industries Limited v Sibiya and Others (DA8/2001) [2002] ZALAC 28 (7 December 2002)

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[2002] ZALAC 28
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Amalgamated Beverage Industries Limited v Sibiya and Others (DA8/2001) [2002] ZALAC 28 (7 December 2002)

6
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
CASE NO.:
DA8/2001
In
the matter between
AMALGAMATED
BEVERAGE INDUSTRIES
LIMITED APPLICANT
and
M.N.
SIBIYA FIRST RESPONDENT
B.V. GAZU SECOND RESPONDENT
A.Z. NENE THIRD RESPONDENT
A.M. ZONDO FOURTH RESPONDENT
M.I. NDWANDWE FIFTH RESPONDENT
________________________________________________________________________
JUDGMENT
________________________________________________________________________
Nicholson JA
The five
respondents worked for the appellant as casual labourers for an
extended period from the late eighties to the end of 1997.
They
contend that they were unfairly dismissed by the appellant. Their
dispute was referred for arbitration before a Commissioner
of the
Commission for Conciliation Mediation and Arbitration (“CCMA”)
in terms of the Labour Relations Act, 66 of 1995 (“the
Act”).
At the commencement of the arbitration on the 28 July 1997 it was
agreed that three of the respondents would proceed
with their
disputes and that the remaining two respondents would stand over for
determination later.
The case of the three
respondents was that they worked continuously for the company for
five days a week on a nine hour day and
had done so for a number of
years prior to 1997. They contended that although they were
designated by the company as casual workers
they “worked like
permanent employees”. When the dispute was referred to the CCMA
for conciliation they sought the following
relief namely
“re-employment as permanent employees”.
The relief sought
before the Commissioner was “the reinstatement of all respondents
on a permanent basis alternatively compensation.”
The
Commissioner held that the applicants had not been dismissed within
the meaning of section 186 of the Act. Various schedules
were
handed in indicating the hours worked by the respondents and the
Commissioner found that, except in isolated instances, they
were
employed for not more than three days in any week.
The Commissioner held
as follows: “what has happened is that the employer has failed to
continue to offer employment to the applicants
as it is entitled to
do, given the nature of the relationship which is
sui generis
.”
The respondents brought a review application in the Labour court in
which they asked that in terms of section 145 alternatively
section
158(1)(g) of the Act they be granted the following relief - the
parties being referred to as in the court below:
“Holding that all of the Third
Respondent’s ruling to dismiss the Applicant’s application on
21
st
July 1998 under Case No. KN 3754 is open to review.
Reviewing, correcting and setting
aside the Third Respondent’s ruling issued on the 21
st
July 1998 under Case No. KN 3754 in terms whereof the Third
Respondent erroneously and inadvertently held that :-
2.1 “The Applicant
worked for not more than three (3) days in a week”.
“That the
Applicants were not dismissed”.
Joining and holding severally
liable for costs the First, Second and Third Respondents (“The
Respondents”), the one paying
the others to be absolved.
Granting applicants such further
and/or alternative relief.”
The deponent to the
founding affidavit, the first respondent herein, after citing the
parties and recording the circumstances of
the arbitration hearing
and the award made, contended, in paragraph 8, that the Commissioner
erred in finding that the respondents
had not established that they
worked continuously for five days per week for the company.
At paragraph 20 first respondent alleged that the commissoner’s
finding on page 39 of his award to the effect that the respondents
were not dismissed was wrong for two reasons which were then
enumerated. Two confirmatory affidavits were filed by second and
fifth respondents respectively.
In the Labour Court
the application for review was successful and the award of the
Commissioner was set aside and substituted with
an order that the
present respondents were dismissed by the present appellant. The
matter was referred back to the CCMA for a
determination as to
whether the dismissal was fair and the present appellant was ordered
to pay the respondents’ costs. The
application for review was out
of time but the court condoned the late filing and for the purposes
of this appeal it is not necessary
to go into that matter at all.
The grounds for review in terms of Section 145 are well known and
have been dealt with in a large number of cases. They include
corruption, misconduct and gross irregularity in the conduct of the
arbitration proceedings and where a Commissioner exceeds his
powers.
The decision of the arbitrator can also be set aside if it is not
rationally related to the purpose for which the power
was given from
an objective view
Shoprite Checkers (Pty) Ltd v Ramdaw N.O. and
Others
2001 (4) SA 1037
(LAC) paragraph [26],
Pharmaceutical
Manufacturers Association of SA and Others: In re: Ex parte
application of the President of the RSA and Others
2000(3)BCLR
241 (CC) or if it is not justifiable as to the reasons given. See
Carephone (Pty) Ltd v Marcus N.O. and
Others
(1998) 11 BLLR
1093
(LAC) at 1103C.
A gross irregularity can occur patently
where for example the right to cross-examination is denied or
latently where the reasoning
is so flawed that one must conclude
that there has not been a fair trial of the issues.
See Toyota SA
Motors (Pty) Ltd v Radebe and Others
(2000) 21 ILJ 340 (LAC
).
It follows that an
applicant for review must make out a case by alleging and proving
one of the grounds which I have enumerated.
It is trite law that an
applicant seeking to review a commissioner of the CCMA must bring
himself within the provisions of section
145. Such an applicant
must not only allege but he must also prove why he maintains that
the commissioner’s award falls to be
set aside on the grounds set
out in section 145.
In
Naude and
Another vs Fraser
[1998] ZASCA 56
;
1998 (4) SA 539
(SCA) Schutz JA held at page
563 E -G:
“It is one of
the fundamentals of a fair trial, whether under the Constitution or
at common law, standing co-equally with the
right to be heard, that
a party be apprized of the case which he faces. This is usually
spoken of in the criminal context, but
it is no less true in the
civil. There is little point in granting a person a hearing if he
does not know how he is concerned,
what case he has to meet. One of
the numerous manifestations of the fundamental principle is the
sub-rule that he who relies on
a particular section of a statute
must either state the number of the section and the statute, or
formulate his case sufficiently
clearly so as to indicate what he is
relying on...”
The respondent’s
attorney made no mention of what section, sub-section or ground he
was relying on in bringing the said review
and at no place in the
founding affidavits is there mention of any of the grounds set out
in Section 145.
Mr Jafta, who appeared
for the respondents, maintained that the use of the words
“erroneously and inadvertently” in the Notice
of Motion were
sufficient indication of the grounds of review relied upon. A
perusal of the above-mentioned grounds - set out in
section 145 and
the cases referred to - reveal that this falls lamentably short of
alleging any ground whatsoever.
In the appellant’s
reply to the application for review the appellant informed the
respondent that firstly; the application for
review was out of time
and there was no application for condonation and secondly, that the
attention of respondents and their attorney
was drawn to the fact
that they had “failed to set out in their affidavits any grounds
for review, which grounds are contained
in
section 145
of the
Labour
Relations Act, and
, as such, there is no basis on which this Court
is in a position to adjudicate this matter.”
In reply to this the respondents allege that the “grounds for
review are set in the Notice of Motion as indicated in Annexure
A.”
The Notice of Motion that I have quoted is then annexed. Alerted as
they now were to the late filing of the review the respondents
launched an application for condonation and in dealing with the
prospects of success of the review application, the only ground
relied on was that the Commissioner made “ an obvious error”.
In answering the
application for condonation the appellant said the following:
“11.1 I am informed by First Respondent’s attorney that the
grounds set out in these paragraphs are not grounds on which this
Court can review the decision of the Third Respondent.
11.2 The Applicants
have applied for a review in terms of
Section 145(2)
of the
Labour
Relations Act which
sets out the grounds on which a review can be
claimed. The incorrect conclusions alleged to have been reached by
the Third Respondent
do not fall within the meaning of a defect as
referred to in section 145 of the Act. In fact, I am advised, the
allegations are
tantamount to an appeal and not a review.”
Despite the fact that the respondents and their attorney were
specifically alerted to the deficiency in their papers they did

nothing to amend or supplement the affidavits filed in this matter.
In
Naude’s
case
op cit
Schutz JA went on to say that
another manifestation of the requirement that a party be apprised of
the case he faces is that he
must set out in his founding affidavit
the case that he seeks to advance. At page 563 H- 564A he said:
“The case that
the respondents sought to make on appeal was not squarely raised in
his founding affidavit. That lacking, he tried
to piece that case
together out of statements in the appellant’s answering
affidavit.”
The respondents failed
dismally to allege or make out any grounds whatsoever for reviewing
the arbitration award of the Commissioner.
The application for
review in the Labour Court ought to have been dismissed on that
ground alone. The appeal in this matter must
therefore be upheld.
I make the following
order:
The appeal is
upheld with costs
The judgment of the Labour Court
is set aside and replaced with the following order
“The application is dismissed with costs.”
________________________
NICHOLSON JA
I
agree.
_________________________
ZONDO JP
I agree.
_______________________
MOGOENG JA
Appearance
for Appellant: Adv J J Gauntlett SC instructed by Barkers
Incorporated.
Appearance for
Respondent: Mr Jafta of Jafta and Company.
Date of hearing: 14
May 2002.
Date of judgment: 7
December 2002