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[2007] ZALAC 26
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Takalani Home for the Mentally Disabled v Commission for Conciliation Mediation and Arbitration and Others (JA 5/06) [2007] ZALAC 26 (15 November 2007)
IN
THE LABOUR APPEAL COURT
OF
SOUTH AFRICA
CASE
NO: JA 5/06
In the matter between:
TAKALANI HOME FOR THE MENTALLY DISABLED
Appellant
and
THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
1
ST
Respondent
HONNORAT, E N. O (cited in his capacity
as Commissioner of the Commission for Conciliation, Mediation and
Arbitration)
2nd Respondent
NEHAWU obo DAWN KGOLE
3rd Respondent
_______________________________________________________________________
Before: Willis JA, Patel JA and Sangoni AJA
Heard: 09 NOVEMBER 2007
Delivered:
15 NOVEMBER 2007
_______________________________________________________________________
J U D G M E N T
_______________________________________________________________________
PATEL
JA
PATEL JA
:
[1] This is
an appeal brought, with leave of the court
a
quo,
by the appellant, Takalani Home
for the Mentally Disabled (“Takalani”) against an order
dismissing an unopposed review
application brought by Takalani
challenging an order made by the second respondent in his capacity as
Commissioner of the first
respondent, The Commission for
Conciliation, Mediation and Arbitration (“CCMA”).
In terms of this order the third respondent, Dawn Kgole (“Kgole”)
was reinstated in the employment of Takalani, as
a care worker. Her
primary duty was to provide care to the Takalani’s mentally ill
patients.
[2]The record of the proceedings
before the CCMA is not before us. It appears that the court below
also laboured under the same
disadvantage when the review was
considered. The brief background that I set out below is culled
from the award of the second
respondent. It is as follows:
On the 22
nd
February
2003, Kgole was on duty in one of the wards. The ward was divided
into 3 cubicles. Kgole and one Lehlokwana were responsible
for one
of these cubicles within the ward. A parent of one of the children
from the ward visited the said ward 15 minutes before
1.00pm, and
discovered that the child was unattended to and was eating his own
faeces.
The matter was reported to the
sister in charge, Sister Ndukwana, who came to the ward, found
Kgole not to be there, and then
gave the child a bath.
According to Takalani it was
understood that workers had to stagger their lunch breaks so that
at least one worker per cubicle
remained on duty. On the day in
question, Kgole and Lehlokwana went on lunch break at the same time
leaving the cubicle unattended.
Kgole suggested that there was
nothing wrong with her taking her lunch break at that time provided
that there were other care
workers in the ward to watch over the
unattended cubicle. She also disputed that the child was eating his
own faeces.
When Kgole returned to work
after being off for 2 days, she was summoned to attend a
disciplinary hearing on 27 February 2003.
The hearing was later
postponed to 3 March 2003.
[3]
On
3 March 2003, pursuant to a disciplinary hearing chaired by the
appellant’s deputy chair person Mr Mahopo, Kgole was dismissed
for negligence perpetrated against physically and mentally disabled
people entrusted to her. Kgole referred an unfair dismissal
dispute
to the CCMA. The conciliation proceedings failed to be resolved and
the matter was referred for arbitration proceedings
before the 2
nd
Respondent. The 2
nd
Respondent found that the dismissal
was both substantively and procedurally unfair and ordered the
reinstatement of Kgole.
[4]Takalani applied to review
and set aside the award in terms of section 145 of the Labour
Relations Act 66 of 1995 (“LRA”).
The Notice of Motion
called for the production of the record of the arbitration
proceedings but no record of the
viva voce
evidence was
furnished by the second respondent. The court below, per Kruger AJ,
dismissed the review application. The learned
judge found that there
was nothing wrong with the arbitration hearing, and there was no
reason to interfere with it on review.
Owing to the absence of the
record the learned judge was not in a position to evaluate the
evidence. His judgment is premised
essentially on the evaluation of
the reasoning of the second respondent. I might mention that no
record of the disciplinary hearing
is included in the record before
us.
[5]Application was thereafter
made by Takalani in terms of section 166(1) of the LRA and Rule 30 of
the Labour Court for leave to
appeal against the whole of the
judgment of Kruger AJ. Leave to appeal was duly granted and that is
how the matter serves before
us.
[6]I shall briefly deal with the
rules dealing with review applications. Rule 7A of the Rules of the
Labour Court deals comprehensively
with review applications in the
following terms:
'7A Reviews
(1) A party desiring to review a decision or proceedings of a body or
person performing a reviewable function justiciable by the
court must
deliver a notice of motion to the person or body and to all other
affected parties.
(2) The notice of motion must -
(a) call upon the person or body to show cause why the decision or
proceedings should not be reviewed and corrected or set aside;
(b) call upon the person or body to dispatch, within 10 days after
receipt of the notice of motion, to the registrar, the record
of the
proceedings sought to be corrected or set aside, together with such
reasons as are required by law or desirable to provide,
and to notify
the applicant that this has been done; and
(c) be supported by an affidavit setting out the factual and legal
grounds upon which the applicant relies to have the decision
or
proceedings corrected or set aside.
(3) The person or body upon whom a notice of motion in terms of
subrule (2) is served must timeously comply with the direction
in the
notice of motion.
(4) If the person or body fails to comply with the direction or
fails to apply for an extension of time to do so, any interested
party may apply, on notice, for an order compelling compliance with
the direction.
(5) The registrar must make available to the applicant the record
which is received on such terms as the registrar thinks appropriate
to ensure its safety. The applicant must 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.
(6) The applicant must furnish the registrar and each of the other
parties with a copy of the record or portion of the record,
as the
case may be, and a copy of the reasons filed by the person or body.
…
It is clear that the Rules
provide for the lodging of a complete record of the proceedings
before the decision of the second respondent
could be reviewed. The
applicable rules of the CCMA and in particular Rule 36(1) obliged the
CCMA to keep a record of any sworn
testimony given in any proceedings
before the Commission and any arbitration award made by a
Commissioner. In terms of Rule 36(2),
such a record may be kept by
legible hand-written notes or by means of an electronic recording
[7]In this matter all that was
discovered as the record of the proceedings was the arbitration award
and the documents before the
2
nd
respondent, and that
unfortunately is all that we have at our disposal to adjudicate this
matter. Clearly the first and second
respondent failed to lodge the
record as contemplated by the aforesaid rules of the CCMA.
[8]The appellant appears to have
adopted a
non possumus
position
apropos
the obtaining
of a complete record since as is evident from Rule 7A(4) the
appellant could have compelled the second respondent
to furnish the
record and applied for the postponement of the hearing in the court
below until such time as the first and second
respondents complied
with their statutory obligation (see
Uee-Dantex Explosives (Pty)
Ltd v Maseko & Others
(2001) 22 ILJ 1905 at 1909-1910).
Despite this option being available to the appellant, it proceeded
with the review application.
Ex facie the papers before us there is
no documentary evidence that the record could not be constructed
because the tapes or the
manuscript notes of the second respondent
had gone astray. Submissions made from the bar in this respect have
little or no value.
It cannot be gainsaid that the appellant had a
right to take the matter on review but in exercising such right the
appellant cannot
flout the rules or for that matter ignore them. An
appellant does so at its peril.
[9]It is trite law that the
failure to keep and provide a proper record may in certain
circumstances be an adequate ground for the
setting aside of an
arbitration award and remitting the matter to the CCMA for the
hearing of the matter
de novo
(see
Shoprite Checkers Ltd v
Commission for Conciliation, Mediation & Arbitration & Others
(2002) 23 ILJ 943 (LC) at para 16 and 17). As pointed out earlier
this was indeed an option available to the appellant in the
court
below. The record however shows that the appellant proceeded with
the review application without exercising this option.
This is most
unfortunate since this is one of those matters which would have been
properly ventilated, both in the court below
and before us if the
complete record was available.
[10]This court has held over and
over again that a review is impossible without a record, and has
dismissed matters if the applicant
is unable to furnish a transcript
of the record. In the case of
JDG Trading (Pty) Ltd t/a
Russells v Whitcher NO & others (2001) 22 ILJ 648 (LAC)
this Court found that in the absence of the transcribed proceedings
before the commissioner, the court a quo was in no position
to
adjudicate properly the review application before it and ought
accordingly to have dismissed it. Further the court found that
the
court a quo was not entitled to have interfered at all with the order
made by the commissioner without having the full record
of the
proceedings since like in this case ‘a multifaceted’
attack was made on the findings of the Commissioner. The
learned
Judge of Appeal went on to say at para [9]:
“
Clearly these attacks
could not be properly assessed without having regard to such
evidence, which as I proceed to indicate, was
not or not properly
available to Lyster AJ”
The Court after adverting to
Rule 7A (supra) concluded that the court below should have dismissed
the review application and accordingly
substituted that as being the
appropriate order.
[11]In the matter before us,
clearly Kruger AJ did not have the record of the arbitration
proceedings before him and thus there
was not enough information
before him to firstly proceed with the review application and
secondly to dismiss the application. Counsel
for the appellant
however attempted to dissuade us from following the above decision
and adverted to the case of
Department of Justice v Hartzenberg
(2001) 22 ILJ 1806 (LAC) in which case this court in the absence of a
complete record remitted the matter for a rehearing. In
that case
the reason for the non availability of a complete record was properly
before the court. We have no information as to
why the record was
not before the Kruger AJ and what efforts were made by the appellant
to obtain the record.
[12]Counsel for the appellant
also sought to persuade us that the appeal should proceed in its
favour by merely assessing the probabilities
which emerge from the
award of the second respondent. In my view this would be a dangerous
course to follow since the award does
not traverse the factual
evidence in any detail for us to select a conclusion “which
seems to be the more natural, or plausible,
conclusion from amongst
several conceivable ones, even though that conclusion be not the only
reasonable one” (see
Govan v Skidmore
1952(1) SA 732(N)
at p.734). Moreover probabilities are closely allied to credibility
findings since facts elicited by evidence
only become such facts if
the evidence given in support of such fact is reliable and credible.
[13]I now turn to consider the
prejudice to the parties should the matter be remitted for a complete
rehearing. The third respondent
was dismissed after a disciplinary
hearing on the 3 March 2003. The third respondent was reinstated on
9 September 2003. The matter
is before us on appeal some 4 years
after the dismissal. The fundamental consideration behind the
enactment of the LRA includes
a commitment to expeditious and
efficient dispute resolution which is transparent and accountable. In
my view the reluctance or
tardiness on the part of the first and
second respondents and the appellant is inconsistent with this. In
the recent constitutional
court
case of
Sidumo and
COSATU v Rustenburg Platinum Mines Ltd,
the Constitutional
Court Case No CCT 85/06
,
reconfirmed this objective.
[14]Finally, there are too many
cases in the Labour Court where litigants simply do not comply with
the rules. Applicants ultimately
run the risk of having their
applications dismissed. There is merit in the position adopted by
counsel acting on behalf of the
third respondent that where an
applicant in the position of the appellant persists with review
proceedings despite the success
of its review depending on the
production of the record, it must deal with the consequences thereof.
It is the duty of legal practitioners
to acquaint themselves with the
relevant rules of the court and to provide their clients with proper
advice and instructions. In
the present matter, Takalani has not
shown what, if any, steps had been taken to obtain the record.
Furthermore I am uncertain
as to whether Takalani was aware that the
rules made provision for the compelling of the production of the
record.
[15]
This
in my view is not a case where the issues are so narrow that the
Labour
Court
could
have
proceeded without the record.
The outcome of the decision is important since firstly, Kgole was
dismissed for a serious charge and secondly because the decision
affects the lives of other people, namely the patients in general.
The Court accepts that the appellant has a fundamental right
to
review. However in this case and in the absence of agreed facts, the
exercise is impossible because no record exists. I am mindful
of the
decision in
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA
& others
[2003]
5 BLLR 416
(LAC); (2003) 24 ILJ 931 (LAC),
where
the Labour Court
held that since the company had not sought a postponement to enable
it to make attempts to “reconstruct”
the record, it
dismissed the matter with costs. The Labour Appeal Court noted the
stage had not been reached when it could be concluded
with confidence
that the record could not be reconstructed. The order dismissing the
review application was set aside and replaced
with an order
postponing the matter.
[16]As pointed out earlier, the
Constitutional Court has recently dealt with the review function of
the Labour Court in the case
of
Sidumo(
supra)
.
The majority of the Court per Navsa AJ, held that the standard to be
applied when a decision by a commissioner on a dismissal
dispute is
sought to be reviewed is the following:
“
Is the decision
reached by the commissioner one that a reasonable decision-maker
could not reach?”
In my view when this test is
applied it would seem most unlikely that a rehearing would have a
different result from that which
the appellant seeks to review. Upon
a conspectus of all that is before us, the appellant has made no
allegations which, if true
would make it likely that another
Commissioner would come to a different conclusion.
[17]It is not in dispute that
the appellant relies on donations to continue with its work. Counsel
for the third respondent, as
is his wont, properly conceded that in
the event we were disposed to dismissing the appeal, then and in that
event the third respondent
would not be seeking an order for costs.
[18]In the premises the
following order is made:-
The appeal is dismissed.
____________
Patel JA
I agree,
____________
Willis JA
I agree,
_____________
Sangoni AJA
Appearance
:
For the Appellant: Mr S Snyman
Instructed by: Snyman Attorneys
For the Respondent: Adv F A Boda
Instructed by: Thaanyane
Attorneys
14