Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v Commission for Conciliation Mediation and Arbitration and Others (DA15/02) [2003] ZALAC 3; (2003) 24 ILJ 931 (LAC); [2003] 5 BLLR 416 (LAC) (28 March 2003)

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[2003] ZALAC 3
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Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v Commission for Conciliation Mediation and Arbitration and Others (DA15/02) [2003] ZALAC 3; (2003) 24 ILJ 931 (LAC); [2003] 5 BLLR 416 (LAC) (28 March 2003)

IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD
IN JOHANNESBURG
Case no: DA15/02
In the
matter between:-
LIFECARE
SPECIAL HEALTH
SERVICES
(PTY) LTD t/a EKUHLENGENI
CARE
CENTRE APPELLANT
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION &
ARBITRATION 1
ST
RESPONDENT
NGCOBO HM (COMMISSIONER) 2
ND
RESPONDENT
MZULWINI TV 3
RD
RESPONDENT
_______________________________________________________________
JUDGMENT
_______________________________________________________________
COMRIE AJA:
[1] The third respondent was
formerly employed by the appellant (Lifecare) as a residential health
care worker. On 25 February 2000,
in the course of an unprotected
strike, he allegedly misconducted himself
vis
a vis
other
non-striking workers. This led to a disciplinary enquiry and to his
dismissal on 2 August 2000.
[2] The
fairness of the dismissal was challenged in arbitration proceedings
held in Durban before the second respondent, who is a
commissioner of
the first respondent. The arbitration was heard during January and
March 2001. No less that twelve witnesses testified,
six per side.
The commissioner’s award, dated 26 March 2001, was adverse to the
appellant.
[3] On 4
May 2000 the appellant launched a review application in the Labour
Court. The notice of motion called in the usual way for
the
production of the record of the arbitration proceedings. In an
“additional” founding affidavit the deponent stated that:-
“
1. The taped recordings
obtained from the CCMA via the Labour Court are incomplete. The six
tapes received were numbered 5-11. Enquiries
made with the CCMA
Administrator, Ms Melly Benjamin, revealed that the above mentioned
six tapes were the only ones available as
received from the
commissioner. This therefore means that there are at least four tapes
missing. This is so despite the fact that
the hearing continued from
where tape number 11 ends.
Evidence of three witnesses
(Graham Foley, Shamla Samuels and Joyce Mazibuko) for the Applicant
was not captured in the available
tapes. Evidence of Mzulwini’s
four witnesses (Bheki Mbatha, Mandla Msomi, Emanuel Makhanya and
Evelyn Cele) was also not captured
in the tapes. This could be on
account of the apparently missing tapes.
One of the tapes, number 9, has
in the middle of Mzulwini hearing a different hearing
recorded...........”
[4] The commissioner’s
handwritten notes were also received. The deponent stated that they:-
“
.........cannot be regarded as
a comprehensive reflection of the arbitration hearing. This is based
on the fact that they amount to
a summary, that includes an
interpretation of what was said at the time which was reduced to a
concise meaning as understood by the
receiver
(commissioner)................”
[5] The material placed before the
Labour Court by the appellant,
qua
applicant, was :
a typed transcript of the
tape-recorded evidence, to the extent that the cassettes were
available; and
the handwritten notes kept by the
commissioner in respect, it would seem, of the evidence which was
missing. These notes, running
to 48 pages, were
not
transcribed.
[6] In his answering affidavit the
third respondent accepted that the typed transcript was an incomplete
record of the evidence led
at the arbitration. The third respondent
stated further:-
“
33.2 Commissioners do not keep
copious and detailed notes of hearings.
33.3 The proceedings are recorded
and Commissioners listen to evidence that is led. Awards are usually
handed down without transcribed
recordings being made available to
Commissioners beforehand........”
I interpose that it is certainly
true that commissioners are encouraged to make use of electronic
recording equipment whenever possible.
[7] The review came before
Ngcamu
AJ
in the Labour
Court. It appears that the third respondent raised an objection
in
limine
in that
the appellant had failed to provide a complete record of the
arbitration proceedings. The learned judge pointed out that
only a
portion of the record had been transcribed but not the commissioner’s
handwritten notes. He regarded himself as bound by
the decision of
this Court in
JDG
Trading (Pty) Ltd t/a Russell’s v Whitcher N.O. and Others
(2001) 22 ILJ 648 (LAC)
[2005] ZALC 1
; ;
[2001] 3 BLLR 300
(LAC)
in which Labour Court rule 7A was considered and applied.
Ngcamu
AJ
said:-
“
The applicant is obliged to
have transcribed the handwritten notes if the record is incomplete.
This has not been done”.
There being no application for a
postponement in order to have the handwritten notes transcribed, the
objection was upheld and the
review was dismissed with costs.
[8] The appellant appeals with
leave granted by the Court
a
quo.
The third
respondent has filed a notice abiding the decision of the Court, in
the interests of saving costs.
[9] I turn immediately to the
judgment of
Goldstein
AJA
in the
JDG
Trading
case
on which the Court
a
quo
relied. That
case, like the present, arose out of a CCMA arbitration which was
taken on review to the Labour Court in terms of
section 145
of the
Labour Relations Act 66 of 1995
. Procedurally, such reviews are
governed by Labour Court
rule 7A
, the terms of which are set out in
the judgment of
Goldstein
AJA
. It will be
seen that an applicant for review must in the notice of motion call
upon the person or body, whose decision or proceedings
are under
review, to deliver to the registrar “the record of the proceedings
sought to be corrected or set aside together with
such reasons.....”
See sub - rules (1) and (2). [Compare uniform
rule 53
(1).]. Sub -
rule (5) then obliges the applicant to “make copies of such
portions of the record as may be necessary for the purposes
of the
review and certify each copy as true and correct”. Copies are
distributed to the parties and to the registrar. Sub - rule
(6). Sub
- rule (7) deals with the costs of transcription of the record,
copying and delivery. By sub - rule (8), as is well known,
an
applicant then has an opportunity to amend, add to or vary the notice
of motion and to supplement the supporting affidavit.
[10] Furnished to the registrar in
that case were the commissioner’s handwritten notes, “6 recorded
cassette tapes of the arbitration
proceedings” as well as a
“[b]undle of documents submitted at arbitration hearing
(exhibits)”. The applicant failed to transcribe
either the
handwritten notes or the cassettes.
Goldstein
AJA
said:-
“
[12] In terms of
rule 7A(5)
,
(6) and (7) the appellant was obliged to have transcribed the
handwritten record and also the contents of the cassette tapes.
Arguably,
if the latter proved to be complete, it may have proved
unnecessary to transcribe the handwritten notes. The appellant failed
to
have either the handwritten record or the tapes transcribed.
[13] In the absence of the
transcribed record of the proceedings before the first respondent,
the court
a quo
was in no position to adjudicate properly on the application before
it and ought accordingly to have dismissed it”.
[11] It is manifest that
JDG
Trading
is
distinguishable from the present case. In
JDG
Trading
there was a record ( whether it consisted of the handwritten notes or
the cassette tapes or both) which the applicant, in breach
of the
rule, had simply failed to transcribe. There was no suggestion that a
material portion of the record was lost. Nor was it
a case where the
issue was so narrow that the Labour Court could have done without the
record. It was further unnecessary for
Goldstein
AJA
to decide
what precisely constituted the “record of the proceedings”; hence
he said at para 12:-
“
Arguably, if the latter proved
to be complete, it may have proved unnecessary to transcribe the
handwritten notes”.
[12] This
brings me to the question: what comprised the record of the
arbitration proceedings before the commissioner in the present
appeal? It was that record which in terms of
rule 7A
the applicant
for review (Lifecare) was obliged to transcribe and distribute. I
have mentioned earlier that the arbitration was heard
during January
and March 2001, the award itself being dated 26 March 2001. According
to the rules then applicable, the first respondent
was obliged to
keep a record of any evidence given in an arbitration hearing, and of
any award or ruling made by a commissioner.
The rules provided:-
“
The record may be kept as
handwritten notes or an electronic recording.”
Since the commissioner made use of
an electronic recording, the desirable form, the probable inference
is that he chose that form
as the “official” record, and that his
handwritten notes were no more than bench notes kept for the
tribunal’s convenience,
as is the invariable practice among
magistrates and Judges. Though we have no definite statement to that
effect from the commissioner
himself, the parties appear to be in
substantial agreement that the electronic recording constituted the
record. I shall proceed
upon that basis.
[13] It follows that what Lifecare
was obliged to place before the Labour Court in terms of
rule 7A
was
a transcript of the electronic recording of the arbitration
proceedings, which was the “record” for the purposes of the
review.
Lifecare complied with that obligation as far as the
circumstances permitted, given that it caused to be transcribed and
distributed
all the cassette tapes which were said by the CCMA to be
available.
Rule 7A
itself imposes no obligation upon an applicant for
review additionally to transcribe and distribute an informal note of
the proceedings,
such as a commissioner’s benchnotes. Nor can
rule
7A
be interpreted so as to require an applicant to do the impossible.
The Court
a quo
accordingly erred in dismissing the application for want of
compliance with
rule 7A.
[14] This is not to say that much
purpose was served by placing the
untranscribed
notes before the Court
a quo
. It is
properly to be expected in that Court, as in this Court, that
handwritten documents will be accompanied by typewritten
transcriptions
or copies. The commissioner’s handwriting affords
ample reason for the settled practice.
[15] How should the Court below
have dealt with the matter? This is not a case such as
Department
of Justice v Hartzenberg
2002 (1) SA 103
(LAC);
[2001] 9 BLLR
986
(LAC)
where most of the record of the evidence before the Industrial Court
was indisputably lost and where a reconstruction of the record
was
not considered to be feasible. That stage has not been reached yet in
the instant matter, and may never be reached. I point out
that we
have no affidavit from Ms Benjamin regarding the CCMA’s storage and
record keeping system at Durban or that deligent search
was made for
the missing tapes. The commissioner has not indicated how many
cassette tapes he handed over to the CCMA. No attempt
has been made
to reconstruct the missing part of the record using the
commissioner’s benchnotes as a starting point. Lifecare’s
rejection of those notes was premature inasmuch as they constituted a
valuable source for the purpose of reconstruction.
[16]
Ngcamu
AJ
recorded in
his judgment that: “There is no application before me to have this
matter postponed in order to have the handwritten
notes transcribed”.
The learned Judge had earlier said that: “the applicant is obliged
to have transcribed the handwritten notes
if the record is not
complete”. Transcribing the commissioner’s notes, as though they
possibly constituted an alternative record,
was not of itself the
solution. In my view the Court should have suggested to the parties
that the matter be postponed in order:
(a) to make the enquiries
referred to in the previous paragraph; and (b) insofar as might prove
necessary, to attempt a reconstruction.
The latter would at least
have been required for the part of tape 9 which was over-recorded,
and may be required in respect of other
tapes. It is not possible to
speculate how Lifecare’s legal representative in the Court a quo
would have reacted to such a suggestion
had it been proffered from
the bench.
[17] A
reconstruction of a record (or part thereof) is usually undertaken in
the following way. The tribunal (in this case the commissioner)
and
the representatives (in this case Ms Reddy for the employee and Mr
Mbelengwa for the employer) come together, bringing their
extant
notes and such other documentation as may be relevant. They then
endeavour to the best of their ability and recollection to
reconstruct as full and accurate a record of the proceedings as the
circumstances allow. This is then placed before the relevant
court
with such reservations as the participants may wish to note. Whether
the product of their endeavours is adequate for the purpose
of the
appeal or review is for the court hearing same to decide, after
listening to argument in the event of a dispute as to accuracy
or
completeness.
[18] I
appreciate that reconstructing parts of the record some two years
after the event will be time consuming and may prove frustrating.
However, the situation is not all bleakness. In addition to the
commissioner’s handwritten notes, Mr Mbelengwa filed a full closing
argument of nine typewritten pages which should prompt his
recollection. Those concerned are expected to cooperate. With the
requisite
cooperation, there is reason to hope that a fair
reproduction will be feasible.
[19] When
it appeared that there were difficulties with regard to the record,
it was the obligation of Lifecare, as the reviewing
party, to
initiate the enquiries and steps which have been set forth in this
judgment. It should not have been left to the Labour
Court at first
instance, and to this Court on appeal, to resolve problems which were
other than residual or intractable.
[20] The
appellant does not seek costs either on appeal or in the Court below.
[21] In the result the appeal
succeeds with no order as to costs. The order granted by the Court
a
quo
is set aside
and replaced by the following order:-
“
(i) The
application is postponed
sine die
for investigation and, insofar as
may be necessary, reconstruction of the record of the arbitration
proceedings.
(ii) No order as to costs.”
____________________
R.G.
COMRIE
ACTING
JUDGE OF APPEAL
I
agree.
________________
RMM
ZONDO
JUDGE
PRESIDENT
I
agree.
______________________
A.N.
JAPPIE
ACTING
JUDGE OF APPEAL
Appearance:
For the
appellant: Adv A.T. Myburg
Instructed
by: Messrs Deneys Reitz - Sandton
For the
respondent: No appearance
Date of
hearing: 5 March 2003
Date of
judgment: 28 March 2003