Palaborwa Mining Company Limited v Cheetham and Others (JA 7/2006) [2007] ZALAC 11; [2008] 6 BLLR 553 (LAC); (2008) 29 ILJ 306 (LAC) (30 November 2007)

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[2007] ZALAC 11
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Palaborwa Mining Company Limited v Cheetham and Others (JA 7/2006) [2007] ZALAC 11; [2008] 6 BLLR 553 (LAC); (2008) 29 ILJ 306 (LAC) (30 November 2007)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JA 7/2006
REPORTABLE
In
the matter between:
PALABORWA
MINING COMPANY LIMITED
Appellant
and
ANTHONY
JAMES CHEETHAM
First Respondent
(Applicant
a
quo
)
COMMISSION
FOR CONCILIATION MEDIATION AND ARBITRATION
Second
Respondent
(First
Respondent
a quo
)
REUBEN
HLOKWE N.O.
Third
Respondent
JUDGMENT
WILLIS
JA:
[1]
The appellant (the employer) appeals, with the leave of the court
a
quo
(
per
Revelas J), against
the order of that court in which the award of the third respondent, a
commissioner of the Commission for Conciliation
Mediation and
Arbitration (“the CCMA”) was reviewed and set aside. I shall
refer to the third respondent as “the commissioner”.
The Labour
Court made the following order:
The
dismissal of the Applicant was substantively unfair by virtue of the
second respondent’s failure to give adequate regard to
the
applicant’s personal circumstances;
The
Applicant is to be paid compensation in an amount equal to eight
months compensation; and
The
Third Respondent is to pay the Applicant’s costs
The
Second Respondent in the court
a
quo
was the
commissioner. The Third Respondent in the court
a
quo
was the
employer. The commissioner delivered his award on 13
th
April 2004. He found the dismissal of the first respondent (the
employee) to have been both substantively and procedurally fair.
The
employee took the commissioner’s decision to the Labour Court on
review. This resulted in the order of the Court
a quo
which was
given on 24
th
October 2005. The employee did not wish to be reinstated.
[2] The reasons
which the court a
quo
gave for finding the dismissal to have been unfair were that the
commissioner had adopted an “inflexible approach” and that
on
the evidence before me, the applicant did not behave in a fashion
which endangered others. His job description did not place him
in a
category where he could harm others. Furthermore, his demeanour could
not be described by anyone as being any one of those listed
in the
code. It would appear that if he was not tested for alcohol, nobody
would have noticed that he had consumed alcohol. Furthermore,
the
applicant is 58 years old and a first offender. These are all factors
which should have been taken into account but were not
.
[3] The material
facts are, essentially, common cause. The employer, which operates a
mine, has a written policy that any mine employee
– which this
employee was – found to have more than 0,05 gram of alcohol per
100 millilitres of blood while on duty may be dismissed
for a first
offence. The employee was aware of this policy. The employee, who was
company secretary, was subjected to a random alcohol
test at the main
entrance to the mine on 13
th
March, 2003. His blowing into a alcohol meter indicated that he was
probably under the influence of alcohol. He was immediately taken
to
a security control room for an alcometer test which showed that he
had 0,115 gram per 100ml in his blood. A second test, taken
twenty
minutes later, showed a reading of 0.095 gram per 100ml. The employee
admitted having consumed alcohol the previous night,
although his
accounts of how much varied from time to time. The employee tried to
challenge the accuracy of the readings but, as
the commissioner
correctly observed, the evidence as a whole was, on a balance of
probabilities, against the employee. Counsel for
the employee
conceded in this court that the employee’s guilt was not in issue
in the appeal. Furthermore, there was no cross-appeal
noted in regard
to the court
a quo’s
finding in this
regard. The employee had eight years of service with the employee. He
was 58 years’ old at the time. The level of
intoxication, above the
proscribed limit, resulted in his dismissal. His internal appeal was
unsuccessful. The employer has justified
its strict policy in this
regard by relying on its duty to ensure the safety of its employees
working at the mine. It justified its
dismissal of this particular
employee on the grounds that it had to be consistent and, although he
was a first offender, in view
of the employee’s senior and
responsible position, he should have been above reproach with regard
to this issue. When the dispute
relating to the alleged unfair
dismissal of the employee was referred to the commissioner for
arbitration, he found no quarrel with
the employer’s reasons for
dismissing him. No exceptional circumstances were raised at any stage
by the employee. He did, however,
complain that he was under a
certain amount of stress and had been taking antibiotics. The
commissioner, having found the dismissal
of the employee to have been
substantively and procedurally unfair, confirmed the dismissal.
[4] The question
of the appropriate standard in cases when the arbitration awards of
commissioners of the CCMA are considered on review
has vexed
employees and employers, lawyers, the CCMA, the Labour Court, the
Labour Appeal Court and the Supreme Court of Appeal since
the
commencement of the Labour Relations Act No 66 of 1995 (LRA). The law
reports are replete with judgments in this regard. The
difficulties
which the issue has presented have required considerable forbearance
on the part of litigants. The legal determination
of appropriate
margins of tolerance for decisions made by others is, unfortunately,
not only intellectually complex but also profoundly
dialectical. The
Constitutional Court has now spoken on the matter in the as yet
unreported case of
Sidumo
v Rustenburg Platinum Mines
(Case
No CCT 85/06). The judgment was delivered on 5
th
October, 2007. This court is indebted to counsel for the parties in
referring us to many of the cases which were considered by the
courts
before this recent judgment of the Constitutional Court. It seems
fair to say that, insofar as the appropriate standard is
concerned,
these judgments are now, essentially, of archival relevance only. It
should be recorded that the heads of argument in
this matter were
filed in August and December 2006 by the employer and employee
respectively. The Constitutional Court itself has
said that its
judgment raised “issues of importance to employers and employees
alike”. With due respect to the Constitutional
Court, it must be
observed that this statement reflects an acutely modest
understatement. The judgment is indeed of massive importance.
Whatever other consequences there may be, the task of the Labour
Courts has been hugely facilitated by the Constitutional Court’s
judgment. The standard is:
the
one in
Bato
Star
1
:
is the decision reached by the commissioner one that a reasonable
decision-maker could not reach?
These are the
ipsissima verba
of
Navsa AJ, delivering the judgment of the majority of the
Constitutional Court
2
.
Despite the fact that decision-makers, acting reasonably, may reach
different conclusions, the LRA has given the decision-making
power to
the commissioner and there it rests, unless it be concluded that a
reasonable decision maker could not reach such a conclusion.
3
Indeed, read together with
Bato
Star
, upon which the
majority decision in
Sidumo
v Rustenburg Platinum Mines
so
strongly relies, the judgment has the clear effect that the courts,
and, in particular, the Labour Courts, must defer (but not
in an
absolute sense) to the decision of the commissioner.
4
In the minority judgment of Ngcobo J, it is noted that the intention
of the LRA is that
as
far as is possible arbitration awards would be final and would only
be interfered with in very limited circumstances.
5
It needs to be
emphasised that, although different paths of reasoning were followed
in the differing judgments of the Constitutional
Court dealing with
this particular case, the court was unanimous as to the order which
should be made. Lest there be any doubt, it
is this:
the
Commissioner’s award is restored
.
6
[5]
The result in the Constitutional Court’s decision in the
Sidumo
v Rustenburg Platinum Mines
case
illuminates the reasoning. In that case, the employee was a security
officer whose duty it was to search employees leaving a
certain
point. Video surveillance revealed that he had, in 24 specifically
monitored instances, conducted only one search in accordance
with
established procedures. On eight occasions, he conducted no search at
all. Fifteen other searches did not conform to procedures.
The video
also revealed that Sidumo allowed persons to sign the search register
without conducting any search at all.
7
For this he was dismissed. The commissioner took into account the
employee’s long service, the fact that no losses appear to have
resulted from his failure to perform his duty, that the violation had
been unintentional or a “mistake” and that it had not been
shown
that the employee had been dishonest and found that the dismissal was
too harsh a sanction.
8
This resulted in the award reinstating the employee.
9
Despite robust criticisms of the commissioner’s reasoning
10
,
the Constitutional Court restored the commissioner’s award.
11
This was the dispute which travelled, with sharply differing views
among the judiciary, to the Labour Court, the Labour Appeal Court,
the Supreme Court of Appeal and, finally, seven years after the
dismissal, to the Constitutional Court.
[6] Ironically, in
Bato Star,
the
Constitutional Court referred with approval to Schutz JA’s
endorsement of Professor Hoexter’s understanding of “deference”
as entailing,
inter
alia
, “according…due
respect”, being “sensitive to the interests legitimately
pursued”, being sensitive to “the practical
and financial
constraints”, “a careful weighing up of the need for - and the
consequences of … intervention”, and “a conscious
determination
not to usurp the functions of…”.
12
The context was different. Do these considerations evaporate and
does the principle change when it comes to an employer’s decision
to dismiss? It seems that they do. The decision of the Constitutional
Court
Sidumo v
Rustenburg Platinum Mines
(Case
No CCT 85/06), does not entail a shift away only from any degree of
deference towards employers
13
.
It also:
(a) as in this
case, reduces the scope for a dissatisfied employee to take his or
her dispute further
14
;
and
(b) reduces
the potential for the Labour Courts and the Supreme Court of Appeal
to exercise scrutiny over the decisions of commissioners
who are
appointed to arbitrate in terms of the LRA
15
.
The majority
judgment in
Sidumo v
Rustenburg Platinum Mines
made it clear that the CCMA is not a court of law, although there are
similarities.
16
Nevertheless, the courts must defer to it. Ngcobo J held that the
function of the CCMA is adjudicative when commissioners resolve
labour disputes through arbitration.
17
.
Indeed, he says that the function is judicial in nature.
18
The CCMA is not, however, in Ngcobo’s opinion a court of law.
19
Nevertheless, its functions are “substantially similar in form and
substance to those performed by a court of law”.
20
Interestingly, the considerations which justify deference to
decision-makers such as members of the executive and public servants
21
are not readily apparent when it comes to commissioners of the CCMA.
The following features are important when considering the powers
and
functions of commissioners who are appointed to arbitrate in terms of
the LRA:
unlike judges,
commissioners are not subject to any comparable provisions of
section 16 of the Supreme Court Act
22
which requires that, except in special cases, judges are to conduct
their proceedings in public
23
;
Unlike courts,
the decisions of commissioner’s are not amenable to appeal
24
;
judges are
accountable to the Judicial Services Commission
25
but there is no comparable provision in the LRA or elsewhere for
commissioners
26
;
there is no
provision of law for the appointment of commissioners which is
comparable to the provisions of section 174 of the Constitution
which relate to the appointment of judges;
the norms,
traditions, practices and customs which require that a person
should,
inter alia
,
have a lengthy track record of proven competence in order to qualify
as a “fit and proper person”
27
to be appointed as a judge do not apply in the case of
commissioners;
(vi) unlike
arbitrators appointed in terms of the Arbitration Act
28
,
or, for that matter, arbitrators appointed Bargaining Council panels,
commissioners do not discharge their powers with the consent
of the
parties;
29
unlike public
servants, commissioners are not accountable to a member of the
executive branch of government
30
who, in turn, is held accountable by his or her respective
legislature
31
;
unlike public
representatives, commissioners are not answerable to an electorate
32
;
unlike private
sector employees, commissioners are shielded from the feedback and
responsiveness that are, albeit often imperfectly,
inherent in
market forces;
unlike employers,
commissioners do not have to bear the costs, economic and otherwise,
either of dismissal (on the one hand) or
of reinstatement of
compensation orders (on the other);
unlike employees,
commissioners do not have to bear the tragic consequences which
often flow from dismissal;
although there is
a Code of Good Practice for Dismissals
33
,
unlike departments of government, the CCMA has no policy guidelines
which operate to ensure consistency, predictability and reliability
in the decisions of commissioners;
unlike the
courts, the CCMA does not have, and cannot have, a hierarchical
system with binding precedent or through which guidelines
can evolve
over time.
A lawyer might
better understand the peculiar
34
position of CCMA commissioners when they arbitrate in terms of the
LRA if it were to be described as both quasi-administrative and
quasi-judicial. The position of commissioners of the CCMA has
elements of both administrative and judicial powers and functions
without,
in any conventionally understood sense, quite being either.
Furthermore, the traditional “hands off” approach of the courts
to
arbitrations has, at its root, the fact that the parties agreed
not only to submit to arbitration but also agreed upon their
arbitrator
35
.
In
Dickenson &
Brown v Fisher’s Executors
36
the following
dictum
of Lord Halsbury in
Caledonian Railways v
Turcan
37
was quoted with
approval:
The
parties have
selected
the
arbitrator as judge of fact and law, and if he be ever so erroneous
in the decision at which he has arrived it is conclusive upon
the
parties…; his award is final, and whether it be right or wrong in
point of law, it is a matter with which I am not entitled
to deal.
(emphasis added)
Indeed, the term
“compulsory arbitration” when used to refer to arbitrations
conducted by commissioners of the CCMA in terms of
the LRA, without
the agreement of the parties, is almost an oxymoron. An arbitration
is:
A
method of dispute resolution involving one or more neutral third
parties who are usually agreed to by the disputing parties and
whose
decision is binding.
38
It seems not
unreasonable to assume that the term “arbitration” was employed
in the LRA because it had gained a certain currency
and perhaps even
a certain “magic” by reason of the extraordinarily successful
contribution of a private agency, the Independent
Mediation Service
of South Africa (“IMSSA”) to labour relations, and indeed other
areas as well, in the decade which preceded
the coming into being of
the democratic order in our country. IMSSA arbitrations were
consensual. Commissioners of the CCMA have
the advantages both of
administrative decision-makers (their decisions are not disturbed
merely because a court considers them to
have been wrong) and
judicial officers (independence) but are not subject to most of the
checks and balances that are applicable
to an administrative
decision-maker or a judicial officer or even a decision-maker in the
private sector. The implications are considerable.
[7]
It is apposite, for a number of reasons, to refer to the well-known
case of
Cassell
& Co Ltd v Broome
39
which has been
referred to with approval in
S v Kgafela
40
.
Lord Denning and two other judges of the English Court of Appeal had
decided that the decision in the House of Lords in a certain
case
41
had been decided
per
incuriam
and was
ulra vires
.
The Court of Appeal went further still and said that the decision was
“unworkable” and that “judges should direct juries in
accordance with the law as it was understood
before
Rookes v Barnard.
”(the
decision in the House of Lords with which the Court of Appeal
disagreed). In the House of Lords each of their lordships delivered
a
separate Speech. The Lord Chancellor, Lord Hailsham of St Marylebone,
whose opinion prevailed, said:
In
view of their importance it is unavoidable that before entering into
the merits of the appeal I should discuss in a few paragraphs
both
the propriety and desirability of the course taken by the Court of
Appeal. I desire to do so briefly and with studied moderation.
Lord Hailsham went
on to refer to the importance of judicial precedent in a hierarchy of
courts and said that a dispute between the
Court of Appeal and the
House of Lords was “unedifying”. He then went on to say:
But,
much worse than this, litigants would not have known where they
stood. None could have reached finality short of the House of
Lords,
and, in the meantime, the task of their professional advisers of
advising them either as to their rights, or as to the probable
cost
of obtaining or defending them would have been, quite literally
impossible. Whatever the merits, chaos would have reigned until
the
dispute was settled, and, in legal matters, some degree of certainty
is at least as valuable a part of justice as perfection.
The
fact is, and I hope it will never be necessary to say so again, that,
in the hierarchical system of courts which exists in this
country, it
is necessary for each lower tier, including the Court of Appeal to
accept loyally the decisions of the higher tiers.
Lord Reid, who
concurred with Lord Hailsham (as did Lord Morris of Borth-Y-Gest,
Lord Wilberforce (on the question of precedent),
Lord Diplock and
Lord Kilbrandon) noted that the Court of Appeal chose to “attack
the decision of this House as bad law”. He
said they were “quite
entitled to state their views and reasons for reaching that
conclusion” but was dismayed that they did
not apply the decision
of the House of Lords. He described this as an “aberration”.
Later he said that “(i)t is perfectly legitimate
to think and say
we were wrong.” The point is this: courts lower in the hierarchy
may disagree with decisions of those that are
higher and may even say
so. Nevertheless, they are bound to follow the decisions in higher
courts. It has been impossible not to
have been aware that “the
chickens have been squawking” since the decision in
Sidumo
v Rustenburg Platinum Mines
.
It would be unedifying for this court to enter into the coop. In any
event, the views of at least one of the members of this court
have
been expressed elsewhere.
42
Without further ado, this court will apply the decision of the
Constitutional Court in
Sidumo
v Rustenburg Platinum Mines
.
[8]
If one compares the facts
in casu
with the
facts in the case with which the Constitutional Court was concerned,
then the obvious, inevitable and necessary conclusion
is that the
learned judge in the court
a
quo
was clearly
wrong in interfering with the award of the commissioner. The appeal
must succeed.
As was noted
earlier, the implications of the Constitutional Court’s decision
are considerable. Clearly, commissioners of the CCMA
have a weighty
responsibility to act fairly.
[9]
Counsel for the employer graciously conceded that, as this was a
difficult matter which had come before the CCMA and the Labour
Court
before the decision in
Sidumo
v Rustenburg Platinum Mines
,
it would be appropriate not to make a costs order against the
employee. This approach is to be commended.
[10]
The following is the order of this court:
The
appeal is upheld;
The
order of the court
a
quo
given in this matter on
24
th
October 2005 is set aside;
The following is
substituted for the order of the Court
a quo
:
“
The
application is dismissed.”
There is no order
as to costs either in this court or the court
a
quo
.
DATED
AT JOHANNESBURG THIS 30TH DAY of NOVEMBER, 2007
N.P.
WILLIS
JUDGE
OF THE LABOUR APPEAL COURT
PATEL JA:
[11] I have had
the benefit of reading the erudite judgment of my brother Willis JA.
I do not disagree with his conclusion and his
reasoning but do not
necessarily agree with all opinions expressed by him in paragraph [6]
of his judgment.
[12] I must add
that the question of an appropriate sanction to be visited on an
employee who is found to be intoxicated is not without
its own
difficulties.
Post
the
Sidumo
judgment, a court has to constantly remind itself that in assessing
the reasonableness or otherwise of a decision of the CCMA
Commissioner,
a court need not necessarily agree with the decision of
the Commissioner. A court sitting on review may arrive at a different
decision
or finding to that reached by the Commissioner. By way of
example, I advert to the case of
Mondi
Paper Co v Dlamini
[1996]
9 BLLR 1109
(LAC) where the court held that it is not sufficient for
the employer to establish on a balance of probabilities that the
employee
was drunk on duty. McCall J at page 1113 stated this
“
In my opinion,
the evidence goes no further than to establish that the Respondent
had consumed alcohol and was smelling of alcohol
at the time when the
tests were taken. The fact that his speech was slurred is, in itself,
not indicative of intoxication. It may
be an indication of
intoxication and it is one of the recognized methods of determining
intoxication, but unless one excludes any
other possibilities such as
tiredness or the fact that the person has a natural tendency to slur
his speech, it is not in itself
proof of intoxication. The test
carried out with the apparatus, although they tended to show a level
of about 0.08 percent are also
not conclusive, and as I understand
the evidence, ought not to be regarded by the Appellant as
conclusive, because a slightly lower
blood/alcohol level than that
would have meant a totally different attitude by the Appellant
towards the person to be disciplined.
Unless the equipment was
totally reliable and completely accurate, it would be unfair, in my
view, simply to rely on the reading
in order to determine whether a
person should be dismissed or sent home with a warning.”
The employee in
this case was a clerk in the stores. The breathalyser test found him
to be sufficiently drunk on duty and this constituted
a dismissible
offence in the employer’s disciplinary code. The apparatus to
measure his drunkenness was found to be inaccurate.
The employee’s
dismissal was deemed to be unfair and the decision of the Industrial
Court was allowed to stand. If this decision
is to be followed, the
outcome for the employee would be different. I myself have a fair
amount of sympathy for the employee but
that is not the test since
the
Sidumo
judgment.
[13]
Sidumo
enjoins a court to remind itself that the task to determine fairness
or otherwise of a dismissal falls primarily within the domain
of the
commissioner. This was the legislative intent and as much as
decisions of different commissioners may lead to different results,
it is unfortunately a situation which has to be
endured with fortitude despite the
uncertainty it may create. I have to remind myself that the test
ultimately is whether the decision reached by the third respondent
is
one that a reasonable decision – maker could reach in all at the
circumstance. On this test I cannot gainsay the decision of
the third
respondent. I therefore concur with the conclusion and order by
Willis JA.
C.N.PATEL
JUDGE
OF THE LABOUR APPEAL COURT
TLALETSI
AJA:
[14] I have had the benefit of
reading the judgments of both Willis and Patel JJA. I have a similar
reservation to that expressed
by Patel JA in paragraph [11] of his
judgment especially with regard to paragraph [6] of the judgment of
Willis JA. I concur, however,
with the conclusion and order of Willis
JA.
L.P.
TLALETSI
ACTING
JUDGE OF THE LABOUR APPEAL COURT
Counsel
for Appellant:
F.A.
Boda
Attorneys
for Appellant: Brink Cohen Le Roux Inc
Counsel
for Respondent:
F.
Venter
(heads of
argument prepared by
T.E.
Seery
)
Attorney
the Respondent: Johannes De Beer Inc
Date
of hearing: 9
th
November, 2007
Date
of Judgment: 30
th
November, 2007
1
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para
[44]
and see para
[107] of the
Sidumo
v Rustenburg Platinum Mines
case
(
supra
)
where O’Regan J is quoted, quoting, in turn, from Lord Cooke in
Associated
Provincial Picture houses Ltd v Wednesbury Corporation
[1948] 1 KB 223
(CA) at 233-4; [1947] 2 All ER 680
2
See
para [110] of the judgment
3
See
para [119] of the judgment
4
See
Bato
Star
(
footnote 1 above) at paras [46] to [48]
5
See
at para [245} of
Sidumo
v Rustenburg Platinum Mines
case
(
supra
)
6
See
at para [121] of
Sidumo
v Rustenburg Platinum Mines
case
(
supra
)
7
See
para [15] of the judgment
8
See
para [21] of the judgment
9
ibid
10
See
paras [115], [116], [284] and [285] of the
Sidumo v Rustenburg Platinum Mines
case
(
supra
).
The criticisms of the Supreme Court of Appeal and the Labour Appeal
Court were even more trenchant – see paras [16], [33] and
[51] of
Rustenburg
Platinum Mines ltd v CCMA
2007
(1) SA 576
(SCA).
11
See
para [121] of the judgment
12
See
para [46] of the Constitutional Court’s judgment in
Bato
Star
(
supra
),
Schutz JA’s judgment in
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd and Another; Minister of Environment
r
al
Affairs and Tourism and Others v Bato Star Fishing (Pty Ltd
2003 (6) SA 407
(SCA) at para [47]; Professor C Hoexter ‘The
Future of Judicial Review in South African Administrative Law’
(2000)
117 SALJ 484
at 501-2; also cited by Cameron JA in
Logbro Properites CC v Bedderson NO and Others
2003 (2) SA 460
(SCA) at para [21].
13
See,
especially, paras [61] to [79] of the judgment in which any
deference by the commissioner, in determining the fairness of the
employer’s decision to dismiss was, with emphatic resolution,
rejected.
14
For
reasons which it is hoped are clear from the preceding paragraphs in
this judgment, the test is now very much narrower and simpler.
And
see, also, footnote 42 below. Indeed, it will be rare indeed that
the courts can interfere with a dismissal which has been
confirmed
by a commissioner. It is surely difficult for a court, in the light
of two successive decisions in the same matter, by
different
persons, having different interests, to find that the decision to
dismiss was one which a reasonable decision-maker could
not
reach?
15
Again,
for reasons which, it is hoped are clear from the preceding
paragraphs in this judgment, the test is now very much narrower
and
simpler. And see, also, footnote 42 below.
16
See
paras [84] and [85] of the judgment
17
See
paras [204],[208],[212],[216],[217],[218],[229], [236] and [237] of
the judgment.
18
See
para [236] of the judgment
19
See
para [220] of the judgment.
20
See
para [236] of the judgment
21
See,
once again, para [46] of the Constitutional Court’s judgment in
Bato
Star
(
supra
),
Schutz JA’s judgment in
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd and Another; Minister of Environment
r
al
Affairs and Tourism and Others v Bato Star Fishing (Pty Ltd
(
supra
at
footnote 12) at para [47]; Professor C Hoexter ‘The Future of
Judicial Review in South African Administrative Law’ (
supra
at
footnote 12); also cited by Cameron JA in
Logbro Properites CC v Bedderson NO and Others
(
supra
at
footnote 12) at para [21].
22
No
59 of 1959
23
Section
138 (1) of the LRA appears to give the commissioner a wide
discretion to decide what he or she considers appropriate. It
is
true that section 34 of the Constitution of the Republic of South
Africa, 1996 provides that “everyone has the right to have
any
dispute that can be resolved by the application of the law decided
in a fair
public
hearing before a court or, where appropriate, another independent
and impartial tribunal or forum.” (Emphasis added). Section
34 of
the Constitution appears, however, to give the right to litigants
and not to the general public. See, however, Bosch, Molahlehi,
and
Everett’s
The
Conciliation and Arbitration Handbook
,
published by LexisNexis, Butterworths, 2004 at p145 in which they
argue that, by reason of section 34 of the Constitution,
arbitrations
held under the auspices of the CCMA should, generally,
be public. In any event, “the public gaze” is less overt when
commissioners
discharge their functions than when courts do so. The
very design of court buildings is such that public attendance is
encouraged
and the discharge by judges of the process of
adjudication is on display. The rooms in which commissioners
arbitrate are, essentially,
indistinguishable, from boardroom
offices around the country.
24
See
section 143 of the LRA which provides that arbitration awards by
commissioners of the CCMA are final. Ironically, if the director
of
the CCMA, exercises a discretion in terms of section 191 (6) of the
LRA or to refer a dispute to the Labour Court, if an employee
elects
, in terms of section 191 (12) of the LRA for the dispute to be
heard by the Labour Court, or if the dispute, in terms of
section
191(5) is one which must be heard by the Labour Court, then an
appeal lies, in terms of section 166 of the LRA to the Labour
Appeal
Court.
25
See
section 177 of the Constitution
26
See,
in contrast, section 113 of the LRA
27
See
section 174 of the Constitution
28
Compare
sections 1
and
3
of the
Arbitration Act, No. 42 of 1965
with
sections 27
,
30
and
65
,read with
sections 191(1)
and
191
(5) of the
LRA (on the one hand) and with
sections 115(1)
(b), and
133
(2)
read with
sections 191(5)
and
193
(1)of the LRA (on the other hand).
29
See
footnote 28 above
30
Compare
section 113
of the LRA, which makes the CCMA independent of the
State, political parties, trade unions and employer organizations
with
section 92
, read with section 197 (1) of the Constitution
31
See
sections 92, 133 & 152 ( read with section 156) of the
Constitution
32
Compare
section 113 of the LRA with section 19(2) of the Constitution
33
See
Schedule 8 of the LRA
34
The
adjective is here used in its original, pure and literal sense of
“particular”, “special” or “exclusively belonging
to”
rather than the more colloquial sense of being “odd”- see the
Oxford Dictionary. A lawyer might prefer the term
sui
generis
to
describe the position.
35
See,
for example,
De
Beers Consolidated Mines Ltd v CCMA & Others
(2000)
ILJ 1051 (LAC) at
[2000] 9 BLLR 995
(LAC) at paras [55] to[59]
36
1915
AD 166
at 174
37
1898
AC 256
38
Black’s
Law Dictionary, 7
th
Edition. The Oxford Dictionary, however, defines arbitration by
reference to the parties having
chosen
the
arbitrator.
39
[1972] UKHL 3
;
[1972]
AC 1027
;
[1972] All ER 801
(HL)
40
2003
(5) SA 339
(SCA) at para [3]
41
Rookes
v Barnard
[1964] UKHL 1
;
[1964]
AC 1129
;
[1964] 1 All ER 367
(HL)
42
See,
for example,
De
Beers Consolidated Mines Ltd v CCMA & Others
(2000)
ILJ 1051 (LAC);
[2000] 9 BLLR 995
(LAC) at paras [37] to [61]; and
see also
Branford
v Metrorail Services (Durban)
(2003) 24 ILJ 2269 (LAC) at 2275-2277;
[2004] 3 BLLR 199
(LAC) at
205-206. In the former case, the relevant judgment proposed
interfering with the award of the CCMA commissioner with a
result
favouring the employer, in the later the relevant judgment proposed
not interfering with the award of the CCMA commissioner
to the
benefit of the employee. Interestingly, the final outcome in both
cases would, in the light of the Constitutional Court’s
decision
in
Sidumo
v Rustenburg Platinum Mines
,
now not be possible.