Coates Brothers Limited v Shanker and Others (DA 22/2002) [2003] ZALAC 12; (2003) 24 ILJ 2284 (LAC); [2003] 12 BLLR 1189 (LAC) (29 September 2003)

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[2003] ZALAC 12
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Coates Brothers Limited v Shanker and Others (DA 22/2002) [2003] ZALAC 12; (2003) 24 ILJ 2284 (LAC); [2003] 12 BLLR 1189 (LAC) (29 September 2003)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
CASE
NO: DA 22/2002
REPORTABLE
In
the matter between:
COATES
BROTHERS LIMITED
Appellant
and
RAJENDRA
SHANKER
First Respondent
COMMISSION
FOR CONCILIATION MEDIATION AND ARBITRATION
Second
Respondent
CHEMICAL
WORKERS ENERGY PAPER PRINTING WOOD & ALLIED WORKERS’ UNION
Third
Respondent
RATHILALL
DEONARANE SINGH
Fourth
Respondent
JUDGMENT
WILLIS
JA
:
[1]
The appellant (to whom I shall refer as “the employer”) appeals,
with the leave of the court
a
quo
(
per
D. Pillay J),
against the following order made by it on 23 October 2002:
“
The
ruling is set aside for want of reasons therefor.
The
late referral for conciliation to the CCMA is condoned.
There
is no order as to costs. ”
The
ruling referred to was one by a CCMA Commissioner ( who is the first
respondent but to whom I shall refer as “the commissioner”)
condoning the late referral of a dispute by the fourth respondent
concerning his alleged unfair dismissal (by the employer) to the
CCMA. I shall refer to the fourth respondent as “the employee.”
[2] The employee
was dismissed by the employer on 7
th
May, 2001. An internal company appeal confirmed the dismissal on 21
st
May, 2001. The employee purported to refer his dispute concerning
his alleged unfair dismissal to the CCMA on 6
th
June, 2001. The CCMA informed the employer on 14
th
June, 2001 that the referral was defective in that:
the referral form
had not been signed at all; and
there was no
proof that it had been sent to the employer.
For reasons which
are not clear, the conciliation was nevertheless set down for hearing
on 30
th
July, 2001. At that hearing, the employer objected on the basis that
there had not been a proper referral. A CCMA commissioner (who
is
different from the one who made the ruling which has been challenged
in this case) made a ruling that the employee should properly
refer
the dispute to the CCMA. The employer received a copy of the second
referral, properly signed on 13
th
August, 2001. It was apparently filed with the CCMA on 14
th
August, 2001. It seems the CCMA lost this document and yet another
form was submitted to the CCMA on 6
th
September, 2001. It is clear that, whatever calculation is made, the
matter was properly referred to the CCMA well out of time. The
only
explanation given for the delay was “an oversight.” The
application for condonation for the late filing of the referral
of
the dispute was heard on 24
th
October, 2001. The commissioner’s ruling was dated on 5
th
November, 2001 but received by the employer on12
th
November, 2001. The entire ruling, including reasons reads as
follows:
“
APPLICATION
FOR CONDONATION
Reason for
ruling:
The applicant has
shown good cause in terms of
section 191(2)
of the
Labour Relations
Act, 1995
, in that:
The
application is 68 days. (
sic
)
The degree of
fault in submitting the referral is low.
The applicant has
provided a reasonable explanation for the delay.
The prejudice is
not significantly different.
The applicant may
(have) prospects of success in the main dispute.
The application
for condonation is granted.”
After the
application to review his decision had been filed the commissioner
filed the following:
“
COMMISSSIONER’S
REASONS
I have read
through the notice of motion and supporting affidavit in the above
mentioned review application.
I
have nothing further to add to my condonation ruling dated 5
th
November 2001.
I abide the
decision of the Honourable Court.”
[3] The judgment
of the court
a quo
which was given
ex
tempore,
is
correctly
critical of the
commissioner’s ruling.
Ex
facie
the record, he
did not apply his mind to the matter. In
National
Union of Metalworkers of SA & Others v Fibre Flair CC
(2000)
21 ILJ 1079 (LAC), this court referred to the relevant principles
that apply in determining whether or not a court should interfere
with the exercise of discretionary powers. Apart from the fact that
it seems,
ex facie
the record, that the commissioner failed to apply his mind to the
matter, it would seem further that he acted for insubstantial
reasons,
that he did not exercise a judicial discretion and, if he
did exercise a discretion at all, he did so improperly or unfairly.
The
court
a quo
was therefore correct in setting aside the commissioner’s ruling
granting condonation.
Ms
Reddy
, who appeared
for the employee, conceded that this was so. The learned judge in the
court
a quo
then went further: she decided that she would, herself, condone the
late referral to the CCMA for conciliation. The learned judge
in the
court
a quo
found,
“As the evidence is purely circumstantial, there are some prospects
of success on the merits.” This clearly influenced
her decision.
She also took into account the fact that the employer’s objection
on 30
th
July, 2001 was “technical”. Among her reasons, the learned judge
also said: “There is no explanation why the applicant insisted
on
the application being signed or why it did not ask that the defect be
remedied when the matter was set down on 30 July 2001 or
at any time
before that.” In this regard she erred. There was an explanation:
the employer had been led to believe, by the CCMA
itself, that the
original referral was fatally defective for want of signature by the
employee.
[4]
Having regard to the following line of cases:
Premier, Mpumalanga and Another v Executive Committee, Association of
State Aided Schools, Eastern Transvaal
1999
(2) SA 91
(CC) at para [50];
Commissioner,
Competition v General Council of the Bar of South Africa and Others
2002 (6) SA 606
(SCA) at paras [14] and [15];
Johannesburg
City Council V Administrator Transvaal and Another
1959
(2) SA 72
(T) at 76D-G;
National
Union of Metalworkers of SA and Others v Voltex (Pty) Ltd t/a
Electric Center and Others
(2000)
12 ILJ 1173 (LC) at 1183C-G,
Mr
Watt-Pringle
, who
appeared for the employer, accepted that the court
a
quo
did indeed have
a discretion, at common law, to decide whether to condone the late
referral, despite the fact that the LRA did
not pertinently confer
such a power upon it.
Mr
Watt-Pringle
also
fairly conceded that as his client had sought the relief in its
Notice of Motion that “condonation for the late referral of
the
dispute to the second respondent be refused”, he could not fairly
submit that the employee could not ask for the converse in
the event
that the court
a quo
set aside the commissioner’s decision for want of reasons.
Mr
Watt-Pringle
submitted
that the need for
expedition and the fact that the court
a
quo
was in as good a
position as the commissioner to decide the issue of condonation
justified the exercise of a discretion by the court
a
quo
in this matter.
In the
Voltex case
Van der Riet AJ
reviewed and set aside the decision of a commissioner to refuse
condonation but nevertheless referred the matter
back to the CCMA for
consideration as “All the information necessary to decide the issue
properly is not before me.” (at 1183H).
In this case, the employer
succeeded in its application to have the order of the commissioner
granting condonation set aside but
immediately thereafter had its
very success negated by the order of the court
a
quo
to decide,
itself, to grant condonation. I am a little uncomfortable with this.
It offends my sense of logic. I know of no comparable
case in which
an applicant simultaneously both succeeded and failed on the question
of identical relief. I also disagree with the
court
a
quo
’s
evaluation of and,
following from that, the weight given to the employee’s prospects
of success. I furthermore am of the view that
the learned judge in
the court
a quo
may have erred in so far as she may have suggested that
circumstantial evidence is somehow “lesser evidence.” In the
light of
Mr
Watt-Pringle
’s
concession, which appears to be correct, that the court
a
quo
did indeed have
a discretion to decide whether or not to grant condonation (and his
stance that it would be desirable, in this case,
that the issue of
condonation be settled without having to refer the matter back to
the CCMA), it is unnecessary for me to deal
further with the accuracy
of the court
a quo
’s
evaluation of the prospects of success and the weight given thereto
or to dwell on the learned judge’s degree of emphasis on
the
relevance of circumstantial evidence. All that has to be considered
is whether or not this court may interfere with the court
a
quo
’s discretion
to grant condonation on the basis that it was not judicially
exercised, according to the tests ordinarily applied.
I emphasise
that
Mr Watt-Pringle
,
despite an
invitation to do so, declined to take up the point raised by this
court as to whether a court may exercise its power of
discretion to
negate an order which it is otherwise compelled to make. In other
words, the point raised by this court was not so
much whether the
court
a quo
has
the power, generally and in appropriate circumstances, to make an
order granting condonation but whether it could do so fully
aware
that this would negate and frustrate the very relief sought by an
applicant and upon which it succeeded. As both parties seem
content
not to deal with this issue, I shall take the cue from them. Counsel
for both parties are adamant that they did not wish
the matter to be
referred back to the CCMA for a decision on whether or not
condonation should be granted. Practical considerations
seem to
prevail. It may be that a similar stance was adopted in the court
a
quo
. Different legal
representatives were involved and therefore we shall never know. If
such a stance was adopted, it makes the decision
of the court
a
quo
very much more
easily understandable. It would be desirable that if such situations
occur in future, the Labour Court should record
the agreed stance
taken by legal representatives as to the approach which they
considered should be adopted by the court.
[5] I have
referred in para [3] above to the case of
National
Union of Metalworkers of SA & Others v Fibre Flair CC
in which were summarised the relevant principles with regard to the
interference with a discretion which is to be judicially exercised.
An appellant must show, in an appeal from a decision in a lower
court, that the court
a
quo
“acted
capriciously, or acted upon a wrong principle, or in a biased manner,
or for insubstantial reasons, or committed a misdirection
or an
irregularity, or exercised its discretion improperly or unfairly.”
Mr Watt-Pringle
conceded that the
only basis upon which he could argue that the discretion of the court
a quo
could
be interfered with was that of a misdirection. This was confined to
the following: did either (i) the court
a
quo’s
error with
regard to the lack of explanation by the employer for its stance on
the absence of the employee’s signature or (ii)
the court
a
quo
’s possible
error with regard to the evaluation of and weight given to the
prospects of success, amount to a misdirection which
would warrant
interference?
[6] In
S
v Pillay
1977
(4) SA
531
(A), the court, albeit in a somewhat different context, had to
consider the meaning of a “misdirection” such that it vitiates
the decision of the court
a quo
. The Appellate
Division referred to
S
v Dhlumayo and Others
1948
(2) SA 677
(A) at 702 in which it was said “no judgment can ever be
perfect and all-embracing” and said “a mere misdirection is not
by
itself sufficient to entitle the Appeal Court to interfere” but
that the misdirection “must be of such a nature, degree or
seriousness
that it shows that the Court did not exercise its
discretion at all or exercised it improperly or unreasonably”. As I
have said
earlier, the Court
a
quo
erred in its
finding in regard to the lack of explanation for its stance on the
absence of a the employee’s signature and I accept
that it may have
erred in its findings as to the prospects of success and the weight
given thereto. Let it be assumed, in favour
of the employer, that
these errors were made by the court
a
quo
. They would not,
however, constitute misdirections of such a kind that they would
warrant interference with the discretion exercised
by the court
a
quo
. The court
a
quo
did not exercise
its discretion improperly or unreasonably; such errors as may have
been made were not serious within the context
of the issues which
were before the learned judge.
[7]
There is no reason why costs should not follow the result.
[8]
The appeal is dismissed with costs.
DATED
AT JOHANNESBURG THIS 29
th
DAY of SEPTEMBER, 2003
N.P.
WILLIS
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
C.R.NICHOLSON
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
C.N.
JAFTA
ACTING
JUDGE OF THE LABOUR APPEAL COURT
Counsel
for Appellant:
C. E.
Watt-Pringle SC
Attorneys
for Appellant: Deneys Reitz Inc
Attorney
for Respondent: Shanta Reddy
Attorneys
the Respondent: Shanta Reddy Attorneys
Date
of hearing: 9
th
September, 2003
Date
of Judgment: 29
th
September, 2003