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[2014] ZALAC 54
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Sasol Infrachem v Sefafe and Others (JA58/12) [2014] ZALAC 54; [2015] 2 BLLR 115 (LAC); (2015) 36 ILJ 655 (LAC) (21 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 58/12
In the matter between:
SASOL
INFRACHEM
Appellant
and
SEFAFE
DANIEL
First Respondent
NATIONAL BARGAINING
COUNCIL
FOR
THE CHEMICAL INDUSTRY
Second
Respondent
SINGH
ASHMINI
Third
Respondent
Heard:
14 May 2014
Delivered:
21 October 2014
Summary:
Review
of arbitration award- Condonation for the late filing of record
granted. Reasonable apprehension of bias- arbitrator failing
to
disclose business interests with employer and recuse herself from the
arbitration proceedings. Test of reasonable apprehension
of bias
restated. Two stage inquiry into whether arbitrator bias in not
disclosing his/her interests in one party. Arbitrator should
first
enquire whether to disclose his/her interests with one of the
parties. The second leg of enquiry is whether a reasonable,
objective
and informed person would on the facts reasonably apprehend bias.
Evidence showing that arbitrator shareholder of a company
doing
business with appellant- a reasonable litigant would reasonably
apprehend bias on the part of the arbitrator - failing to
disclose
such relationship and recuse herself from the proceedings vitiated
the entire proceedings before her- Labour Court’s
Judgment
upheld. Appeal dismissed with costs.
CORAM: TLALETSI DJP,
MOLEMELA
et
COPPIN AJJA
JUDGMENT
COPPIN AJA
[1] This is an appeal
against the judgment and order of the Labour Court (“
Boda
AJ
”), in terms of which an award of the third respondent
(“
the arbitrator
”), acting under the auspices of
the second respondent, was set aside in its entirety and the matter
was referred back to
the second respondent for a fresh hearing before
a different arbitrator. The Labour Court granted the appellant leave
to appeal
to this Court.
[2] Besides an issue of
condonation, the merits of the appeal essentially turns on whether
the Labour Court correctly found that
the arbitrator had failed to
disclose a business relationship with the appellant and whether the
Labour Court was correct in setting
aside the award in its entirety
on the basis of the facts concerning the relationship which the
arbitrator disclosed in an affidavit
placed before the Labour Court
and by referring the matter to the second respondent for a fresh
hearing.
[3] I shall first set out
the background, then deal with the issue of condonation and lastly
with the merits.
Background
[4] The first respondent
was employed as a Crime Control Officer by the appellant. His duties
entailed,
inter alia,
the investigation of and the prevention
of crimes on the premises of the appellant. He had, approximately, 22
years of service
at the time of his dismissal by the appellant,
following upon a disciplinary enquiry on or about 22 March 2007,
where he was charged
and found guilty of neglecting to perform his
duties as crime control officer, more particularly, for failing to
respond promptly
to an armed robbery that had taken place at the
appellant’s premises on 6 February 2007.
[5] The first respondent
challenged his dismissal and the matter was referred to the second
respondent for resolution. There, the
first respondent contended that
his dismissal by the appellant was both procedurally and
substantively unfair.
[6] The third respondent
(“the arbitrator”) was appointed to arbitrate the unfair
dismissal dispute between the appellant
and the first respondent. At
the conclusion of the arbitration, the arbitrator found in her award
that the first respondent’s
dismissal was substantively fair
and “procedurally fair, save for the fact” that the
Chairperson of the Disciplinary
Enquiry “at times”
prevented the first respondent from “properly cross-examining
certain witnesses and putting
his version forward”. The
arbitrator, effectively, confirmed the dismissal, but awarded the
first respondent compensation
equivalent to one month’s salary
(that is about R11 776,28, less tax deductions) for the procedural
unfairness, further recorded
that “
the Chairperson did not
act in a biased manner
” and made no costs order.
[7] Unhappy with this
outcome at the arbitration, the first respondent brought an
application in the Labour Court to review and
set aside the
arbitration proceedings and the arbitrator’s award. In an
affidavit supplementing his founding papers in the
review
application, the first respondent contended,
inter alia
, that
it has since come to his knowledge that a certain company PAS
Automation Services (Pty) Ltd (“
PAS
”) was a
preferred contractor of the appellant; that it was owned by the
arbitrator’s husband and that the arbitrator
conducted her
consulting services business from the same premises as PAS. The first
respondent averred that these facts were not
disclosed by the
arbitrator and were not known to him at the time of the arbitration.
He contended that the third respondent should
have disclosed the
facts linking her to the appellant and should have recused herself
and not presided as arbitrator in his matter,
because of the
closeness of the relationship between herself and the appellant which
gave rise to a reasonable apprehension of
bias.
[8] When the matter
initially came before the Labour Court and this point was raised, the
arbitrator was given an opportunity by
the court to respond to the
allegations of non-disclosure and reasonable apprehension of bias.
Consequently, the arbitrator delivered
an affidavit in which she gave
details of the link between herself and PAS and the link between the
latter and the appellant.
[9] Having considered the
facts, the law and the submissions of the appellant and the first
respondent, the Labour Court concluded
that the arbitrator ought to
have made disclosure of the facts at the outset of the arbitration.
In essence, the Labour Court also
found that a reasonable
apprehension of bias on the part of the arbitrator had been shown;
went on to declare the arbitration proceedings
“
null and
void
” and further ordered that the arbitration be conducted
afresh before another arbitrator. The parties were ordered to pay
their own costs.
[10] The appellant sought
leave to appeal to this Court against the Labour Court’s order.
It was,
inter alia
, contended that the Labour Court erred in
finding that the arbitrator had to disclose the link between herself
and PAS and between
the latter and the appellant; and further, in
finding that a reasonable apprehension of bias on the part of the
arbitrator had
been proved. It also disputed the finding that the
arbitrator had interests that required disclosure and contended that
even if
there had been a failure to disclose, this did not
automatically result in a reasonable apprehension of bias. The
appellant contended
that the Labour Court had, accordingly,
wrongfully set aside the arbitration proceedings and the arbitrator’s
award.
[11] The Labour Court
commented in its judgment granting the appellant leave to appeal to
this Court, that as the case was “
a difficult one,
especially because of the mixture of the facts, some favouring one
party, some favouring another …
”, it was in the
interests of justice to grant leave to appeal. The costs of the
application for leave to appeal were ordered
to be costs in the
cause. The order granting leave to appeal was handed down on about 12
October 2012.
Condonation
[12] At the outset of the
appeal hearing, the appellant applied in terms of a written
application for condonation for the late service
and filing of the
appeal record. The application was opposed by the first respondent.
[13] It is not disputed
that the Labour Court had handed down its order granting the
appellant leave to appeal on 12 October 2012
and that, the record had
to be lodged within 60 days of that date in terms of Rule 5(8) of
this Court. The record of proceedings,
accordingly, had to be lodged
by the appellant on or about 4 January 2013. However, the appellant
only lodged the record on 24
June 2013, which is about 115 days later
[14] In terms of Rule
5(17) of this Court, if the appellant fails to lodge the record
within the prescribed period, the appellant
will be deemed to have
withdrawn the appeal, unless the appellant has within that period
applied to the respondent, or to the respondent’s
representative, to consent to an extension of the time period and
such consent had been given. If the consent is refused, the appellant
may by notice of motion supported by affidavit, which had also been
delivered to the respondent, apply to the Judge President in
chambers
for an extension of the time.
[15] It was not disputed
that the appellant did not apply to the respondent or to the
respondent’s representative within the
prescribed period for an
extension of the period for the lodging of the appeal record, and did
not apply to the Judge President
in chambers within that period for
an extension of the time within which to lodge the record as
contemplated in Rule 5(17). It
is only on 15 April 2013, about 67
court days after the prescribed period had expired, that the
appellant, in a letter to the respondent’s
attorney, sought
consent for the extension of the period for the lodgement of the
appeal record. The first respondent’s attorney,
by letter dated
17 April 2013, informed the appellant’s attorneys that such
consent was refused.
[16] The application for
condonation, which the appellant consequently launched, was issued
and served on the first respondent’s
attorneys on or about 25
June 2013. This was 116 court days after the prescribed period and
more than two months after the respondent
(or his attorneys) had
refused to consent to an extension of the prescribed period.
[17] Notwithstanding the
provisions of Rule 5(17), this Court is empowered in terms of Rule
12(1) to hear and determine a condonation
application for the late
filing of the record. The rule provides that this Court may for
“
sufficient cause shown
” excuse the parties from
compliance with any of its rules.
[18]
The factors to be taken into account when considering an application
for condonation are trite.
[1]
In
Melane
v Santam Insurance Co Ltd,
[2]
it was stated:
‘…
the
basic principle is that the Court has a discretion, to be
exercised judicially upon a consideration of all the facts, in
essence, it is a matter of fairness to both sides. Among the facts
usually relevant are the degree of lateness, the explanation
thereof,
the prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually
decisive, for
that would be a piecemeal approach incompatible with a true
discretion, save of course that if there are no
prospects of success
there would be no point in granting condonation. Any attempt to
formulate a rule of thumb would only serve
to harden the arteries of
what should be a flexible discretion. What is needed is an objective
conspectus of all the facts.
Thus a slight delay and a good
explanation may help to compensate for prospects of success which are
not strong. The importance
of the issue and strong prospects of
success may tend to compensate for a long delay. The respondent's
interest in finality must
not be overlooked.
’
[19] Ms Mohsina Chenia of
Cliffe Dekker Hofmeyr Inc is the deponent to the appellant’s
founding affidavit in the condonation
application. She advances the
reasons for the delay. At the time the notice of appeal in this
matter was served, she was representing
the appellant but was then
employed at a different firm of attorneys, namely Glen Marais Inc.
She was employed at the latter firm
until the end of February 2013
and only joined Cliffe Dekker Hofmeyr Inc as Director after that.
[20] Ms Chenia explains
that on 5 November 2012, her secretary at Glen Marais Inc had sent
correspondence which she had not seen
or approved of to the
representative of the appellant informing the appellant that the next
step in the appeal process was to await
a directive from the Labour
Court with regard to the filing of heads of argument and the hearing
of the appeal. The advice to the
appellant was incorrect because the
record still had to be compiled. Ms Chenia mentions that on 16
November 2012, a further letter
was sent to the first respondent’s
legal representatives without her knowledge and consent informing
them that the appellant
was awaiting a directive from the Labour
Court. Ms Chenia was also unaware that her secretary at Glen Marais
Attorneys had diarised
the matter accordingly i.e. erroneously on the
basis that a directive from the Labour Court was being awaited.
[21] Ms Chenia explains
that during January 2013, she was on leave and acted in the Labour
Court. After that she and her team were
busy preparing to move from
Glen Marais Inc to join Cliffe Dekker Hofmeyr Inc. The move was
marked by delays and much turmoil.
It was only by about 22 February
2013 that she and her team managed to move the majority of their
files over to Cliffe Dekker Hofmeyr
Inc. It was an arduous process to
establish which files had to remain with Glen Marais Inc and which
ones had to be transferred
to Cliffe Dekker Hofmeyr Inc. The process
involved some 200 files and she believes that the file in this matter
had remained in
storage.
[22] It was only on 26
March 2013, after the first respondent had sent a letter to the
second respondent informing it that the appellant
had failed to
comply with Rule 5(17) of this Court and asking the second respondent
to set the matter down for arbitration, that
she became aware of the
true state of affairs pertaining to this appeal. She realised that
the record had not been attended to
and urgently arranged for the
compilation of the record. The contents of the file in the matter
were sent to the transcribers on
5 April 2013, as soon as it had been
uplifted, with a request that the record be compiled urgently.
[23] Ms Chenia avers that
on 15 April, she sent a letter to the first respondent’s
attorneys of record in which she explained
the situation and
requested an indulgence. A response from the first respondent’s
attorneys was received on 17 April 2013
in which they refused to
grant an indulgence to the appellant. The compilation of the record
took some time. Various enquiries
were made by her secretary
regarding progress with the compilation of the record. She furnishes
details of the dates and the measures
that were employed to secure
the record. By 17 May 2013, the transcribers were still requesting
various documents from Ms Chenia
for the compilation of the record.
On 24 May 2013, more documents were requested, which were dispatched
to the transcribers on
27 May 2013.
[24] In the meantime, the
first respondent attempted to set the matter down for arbitration.
From 27 May 2013 there were several
more requests by the transcribers
for various documents that were responded to. According to Ms Chenia,
the location and retrieval
of documents were difficult. On 3 June,
the transcribers informed Ms Chenia’s office that the record
was being processed.
Payment for the preparation of the record
entailed another delay. After payment was effected on 14 June 2013,
the record was ready
to be collected and was collected from the
transcribers late in the afternoon of that day and was only given to
Ms Chenia’s
secretary on 18 June 2013. The application for
condonation could not be finalised on 18 June 2013 due to Ms Chenia
being ill and
was only finalised on 21 June 2013.
[25] Ms Chenia avers
further that the first respondent would not be prejudiced if
condonation for the late filing of the record
is granted. She
disavowes any dilatoriness and ascribes the delay in the filing to
“an extremely unfortunate administrative
error” by her
former secretary at Glen Marais Inc and to the move of her department
from those attorneys. She contends that
unless the appeal is
reinstated, the prejudice to the appellant would be substantial. She
mentions that the initial award in this
matter, which was the subject
of the review in the Labour Court, had already been handed down in
April 2008 and that “the
attendance to a further arbitration at
this stage will negatively impact on the appellant’s case and
the same witnesses are
no longer available”.
[26] The first respondent
contends that the appellant and its attorneys are the sole authors of
the situation they find themselves
in. The delay was entirely of
their making and not due to anything that the first respondent, or
his attorneys, did. On behalf
of the first respondent, it was
submitted that a substantial portion of the delay for the period (57
court days), was solely due
to the appellant’s attorneys’
negligence. It was also pointed out that even after becoming aware
(on her own version)
on 17 March 2013 of the need for condonation, Ms
Chenia only requested an indulgence from the first respondent’s
attorneys
on 15 April 2013, almost a month later.
[27]
With reference to decisions dealing with attorneys’ negligence
in the context of applications for condonation, such as
in
Saloojee
and Another v Minister of Community Development;
[3]
Waverley
Blankets Ltd v Ndima and Others; Waverley Blankets Ltd v Sithukuza
and Others;
[4]
Superb Meat Supply CC v Maritz
[5]
and
Queenstown
Fuel Distributors CC v Labuschagne NO and Others,
[6]
it was submitted on behalf of the first respondent that the appellant
should not be excused for its attorneys’ negligence
and that
the attorneys’ explanation for the delay was not compelling and
adequate. Therefore, so it was argued, condonation
ought to be
refused.
[28] In my view, there is
merit in the first respondent’s submissions concerning the
appellant’s reasons for the delay.
The delay was relatively
long. There was arguably laxity in getting the matter ready for
appeal and some negligence on the part
of the appellant’s
attorneys’ administrative staff. However, I am of the view that
there are some redeeming features.
The position Ms Chenia found
herself in is not so inexcusable that condonation should be refused
despite the blamelessness of the
appellant. In any event, the reason
for the delay is also not the only factor to be considered.
[29] The first
respondent’s representative also submitted that the appellant
had no prospects of success on appeal. In light
of my view of the
importance of the issues of bias and recusal that are raised crisply
in this appeal, and in the interests of
the finality of the matter, I
do not consider the prospects to be decisive of the issue of
condonation either. The explanation
for the delay was not wholly
unreasonable and the issues raised in the merits of the appeal are
important. Condoning the late filing
of the record would not in my
view prejudice the first respondent if the merits were dealt with and
finalised. I consider it in
the interests of justice that condonation
be granted for the late lodging of the record. The first respondent’s
opposition
to the application was not unreasonable and the appellant
is seeking an indulgence. In light of the conclusion on the merits,
it
is fair for the costs of the condonation application to be costs
in the appeal.
The merits
[30] The arbitrator, a
non-practising attorney, at the invitation of the Labour Court, filed
an affidavit giving details of her
relationship with PAS and the
latter’s relationship with the appellant. A part of the
affidavit is repeated in the judgment
of the court
a quo
. I
quote here for convenience the relevant part of the affidavit. It
states
inter alia
:
‘
6.
In essence the applicant alleges
that by virtue of the fact that my husband conducts work
for Sasol
and that my husband and I share offices and that I therefore have a
conflict of interest when presiding as an arbitrator
in matters in
which Sasol or one of its subsidiaries of affiliates are a litigant.
7.
The
applicant alleges that my husband and I have a common interest in the
business that we pursue separately for the purposes of
our family and
that the downfall of one party may well be the downfall of the other.
As such, the applicant alleges that my husband
and I will necessary
pool our resources to maximum our joint profit for the benefit of the
common family. As a result the distinction
between my husband (an
engineer) and myself (an attorney acting as arbitrator) becomes
blurred and creates a perception that our
interests are one and the
same thing. In my view there is no merit whatsoever to the
allegations against me or the inferences which
the applicant seeks to
draw. However, I am advised that I am merely required to place all
relevant information before the court
and the court will reach a
decision as to the allegations of bias against me.
8.
I
obtained my LLB degree from the University of Natal in 1995. I
completed articles and the Attorneys’ Admission Exams
and was
admitted in Gauteng during early 1998 as practising attorney.
9.
I
practised as a professional assistant with the firm Mollenaar and
Griffiths Inc in Sasolburg, Free State from January 1998 to
July
1999. In August 1999 I started a Labour Law Consulting Service and I
practised in a close corporation Ashmini Singh Consulting
Services
CC.
10.
Since
September 1999 I have been registered as an accredited Level B
part-time Commissioner in the Free State Division of the CCMA
and
later promoted to Level A. Between September 2002 and 2009 I was
registered as a Level A part-time Commissioner in the Free
State
Division of the South African Local Government Bargaining Council.
11.
From
September 2002 until 2010 I was registered as a Level A part-time
Commissioner for the National Bargaining Council for the
Chemical
Industry in Free State and Gauteng. The NBCCI is the second
respondent in the review application.
12.
In
2010 my private consulting work grew to such an extent that I was
unable to act as arbitrator on any kind of regular basis.
To my
recollection I only handled three to four matters for the NBCCI
during 2010.
13.
During
2011 I performed no work whatsoever for the NBCCI or SALGBC. My
current work consists primarily of chairing private disciplinary
enquiries.
14.
I
am married out of community of property to Mr Nirmal Narotam. I
have been married for 16 years. My husband is an engineer
by
profession and since 2005 has conducted a business, PAS Automation
Services (Pty) Ltd. PAS Automation Services is an engineering
company. It is part of a global organisation PAS that provides highly
specialised software and services to various large refineries
and
similar large industrial corporations throughout the world. My
husband’s company conducts work for Sasol, Eskom, Engen,
Natref
and various other large international companies, like Total, Saudi
Aramco, Excon Mobile, Kuwait National Petroleum.
15.
I
helped my husband to start the business by providing start up capital
and as such I am a 50% shareholder in the business and was
appointed
Legal Director. I have no involvement other than that in the
business as I am not at all qualified in the engineering
profession.
I may for all practical purposes be termed a silent partner.
16.
My
husband’s business and my consultancy share offices in
Sasolburg for the purposes of saving costs. My consultancy occupies
15% of the floor space and the receptionist is shared. Other than
this, we have nothing to do with each other’s businesses.
17.
PAS
Automation Services is contracted to Sasol and provides software and
specialist process alarm management services to it. To
the best of my
knowledge PAS is the only business of its kind offering specialised
alarm management services in South Africa.
I am advised by my
husband (who deposes to a confirmatory affidavit hereto) that
procurement decisions are driven by engineering
staff typical from
the Sasol Technology Department. The procurement decisions are
driven by the actual requirements and there
are very strict
international specifications on process safety that have to be
conformed to. Failure to adhere to these specifications
could
lead to severe loss of life and/or damage to expensive plant
equipment. Accordingly decisions regarding procurement
are not
in any way influenced by other factors such as whether an arbitrator
with some link to the company has made a ruling in
some arbitration.
18.
It
is a fact of life that Sasol and that surrounding towns such as
Vanderbijlpark are by and large dominated by Sasol which employs
tens
of thousands of people in the area and is by far the largest employer
in the area.
19.
It
is therefore inevitable that many of the matters which come before
the NBCCI in the Free State involve Sasol or one of its affiliates
or
subsidiaries.
20.
During
the years as an arbitrator with the NBCCI I presided over many
arbitrations involving Sasol. I have never been influenced
in any way
by the fact that my husband’s company provides services to
Sasol and that we share premises or that we are married.
I have on
numerous occasions ruled against Sasol in arbitration.
21.
As
an example in arbitration award under FSCHEM 4757 issued on 6 April
2009 in the matter between Mr J J Rantili and Sasol Infrachem
in
which I found that the sanction of dismissal was too harsh and I
ordered Infrachem to reinstate the employee into his employment.
As appears from the award that Mr Seleke of Majavu Inc, the
applicant’s attorneys in the present matter appeared for the
applicant in that matter.
22.
On
numerous other instances I have presided over arbitrations in which
Sasol was a party in which I have ruled against Sasol. The
fact that
my husband had a business relationship with Sasol has never had any
influence whatsoever on me.
23.
I
have never seen the need to disclose to the parties the fact that I
am married to a person whose company provides services to
Sasol and
with whom my consultancy shares office space.
24.
I
am not aware that these facts give rise to any duty to disclose or
any reasonable perception of bias on the part of a litigant.
’
[31]
The court
a
quo
,
having considered the affidavit, submissions and the law, including
the decisions in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
(“
the
SARFU
case
”),
[7]
R
v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet
Ugarte (No 2),
[8]
Bernert
v Absa Bank Ltd
[9]
and
Ndimeni
v Meeg Bank Ltd
(
Bank
of Transkei
),
[10]
held:
‘
[30]
On a balance, it is my view that the arbitrator
should have made disclosure. I say so for the following
reasons:
30.1
First, as pointed out in Bernert, the failure to disclose, is not on
its own decisive but may lead to an
inference in all the
circumstances. I remain uncomfortable with the Arbitrator’s
decision not to disclose the facts. In my
view, a reasonable
Arbitrator would have disclosed the association. Had the
Arbitrator disclosed these facts, it may have
been difficult for the
applicant to persist with the claim that there is a reasonable
perception of bias. The non-disclosure leads
me to draw an inference
in favour of the Applicant.
30.2
Secondly, the Labour Court must be satisfied that the party has had a
right to a fair trial. I cannot,
on the facts before me,
conclude that the Applicant’s perception that he did not have a
fair trial, is unreasonable. I cannot
fault the Applicant for being
left with the impression that the Arbitrator did not disclose the
facts in order to hide the interest,
despite the fact that I have no
difficulty in accepting the arbitrator’s bona fide. The test is
not actual bias. The test
is whether there is a reasonable perception
of bias.
30.3
Thirdly, the Arbitrator was not only a shareholder of a major
contractor of Sasol, but she was also a director
of the contractor.
As a director, she would owe fiduciary duties to the Company and she
would have to ensure that she acts in its
best interests. There
is a real possibility that these interests could clash with the
duties of the Arbitrator. This
was all the more reason for the
Arbitrator to make disclosure.
30.4
Fourthly, the Arbitrator was closely associated on a day-to-day basis
with the contractor, not only because
of her shareholding and the
husband’s shareholding, but also because she shared premises
from which she obtained a financial
benefit in a private practice.
This strengthens the Applicant’s perception.
30.5
Fifthly, the First Respondent is a major player in the industry and a
significant player in the bargaining
council. This is all the more
reason why it was necessary in my view for the Arbitrator to make
appropriate disclosures upfront.
I accept that she was bona fide but
she erred in not doing so.
30.6
Finally, the fact that the Arbitrator had previously found against
Sasol demonstrates that she did not have
actual bias. Her
non-disclosure, however, still led to a reasonable perception of
bias. Similarly, the fact that the
Arbitrator was not actually
influenced by the association, again demonstrates that there was no
actual bias. It does not take away
the reasonable perception of bias.
The fact that the Arbitrator found against Sasol on procedure is not
decisive. Again, the Applicant
has a reasonable perception that, but
for the association, another Arbitrator may have awarded him much
more.
[31]
Accordingly, I prefer to err on the side of caution. I find
that the feared deviation from
impartial adjudication of the case,
which is held by the Applicant, is a reasonable one
.’
[32] The court
a quo
then concluded by finding that the proceedings before the arbitrator
were null and void and ordered that the arbitration should
be
conducted afresh before another arbitrator.
[33] The Labour Court
thus found that the arbitrator had a duty to disclose a link with the
appellant through the business that
she co-owned with her husband and
was also director of; that given all the relevant facts and
circumstances, the first respondent
has shown a reasonable
apprehension of bias. Without having specifically articulated it, the
court
a quo
, seemingly, implicitly also found that enough had
been shown for the arbitrator to have recused herself and that the
proceedings
before her were accordingly a nullity.
[34] The arguments of the
appellant on appeal in respect of the merits were, essentially, the
following. The court
a quo
erred in finding that the
arbitrator had a duty to make the disclosure. In that regard the
court
a quo
erred in its application of the decision in
Bernert
and did not properly consider its effect. The court
a
quo
also erred in its conclusion for failing to give any or
sufficient weight to the affidavit submitted by the arbitrator, which
the
court
a quo
described as “
frank and forthright
”,
and in which, she,
inter alia
, states that she genuinely and
in good faith did not believe that she had a duty to make the
disclosure and that she had previously
arbitrated in matters where
the appellant was a party and had found against it.
[35] It was further
submitted on behalf of the appellant that this matter should be
distinguished from the facts in
Ndimeni,
because there, the
Bank conceded that the acting judge ought to have disclosed his
interest which was not the case here and further
that it was clear
from the arbitrator’s affidavit that there was no commercial or
other potentially prejudicial relationship
between the arbitrator and
the appellant. It was submitted that the fact that the arbitrator’s
husband does work for the
appellant “
only in circumstances
where his company meets stringent safety requirements cannot…be
considered to constitute a commercial
or other relevant interest for
the purposes of bias
”.
[36] It was also
submitted on behalf of the appellant that the arbitrator “
based
her decision not to disclose her alleged interests on the absence of
the connection between her husband’s success in
his
relationship and tendering
” to the appellant on the one
hand, and “
her decision-making vis-à-vis the
appellant on the other
”; that her decisions as arbitrator
“
were made completely independently and could not have had
any impact upon her husband’s business relationship
”
with the appellant; that the court
a quo
erred in finding a
reasonable apprehension of bias despite the fact that the arbitrator
“
clearly applied her mind to the relationship between her,
her husband’s business and the
[appellant]
before
genuinely and in good faith determining that disclosure was not
necessary
”. It was thus argued that in those
circumstances “
a reasonable apprehension or bias ought not
to exist
”.
[37] Counsel for the
appellant submitted further in argument before us at the appeal
hearing and apparently “
off-the-cuff
”, that if
this Court were to uphold the court
a quo’s
findings
regarding reasonable apprehension of bias then this Court should,
nevertheless, set aside the Labour Court’s finding
that the
entire proceedings before the arbitrator were null and void and refer
the matter back to the Labour Court for it to consider
the other
grounds of review that were raised by the first respondent in his
application for review. Since this latter argument
was entirely new,
the parties were given an opportunity to file supplementary notes of
argument in respect of it.
[38]
In its supplementary note, the appellant submits that the first
respondent’s establishment of bias on the part of the
arbitrator does not necessarily vitiate the entire arbitration
proceedings and relied for this submission on a
dictum
in
SARFU
[11]
where it was stated (in the context of the facts of that case) that:
“
If
the allegation of bias is established it does not necessarily mean
that the entire proceedings will be vitiated.
”
The
appellant also referred in support of this argument to the decisions
in
Rondalia
Versekeringskorporasie van Suid-Afrika Bpk v Lira
[12]
and
S
v Rall.
[13]
It was submitted that those cases provided examples of situations
where proceedings were not vitiated in their entirety even where
bias
was found. According to this argument, the approach that ought to be
adopted in this case is that which was adopted in
Rondalia,
where
the court did not rely on the evaluation of the evidence of the trial
judge, but decided to reach a decision on the papers,
because,
according to the court in that case, the probabilities, apart from
the impression which the witnesses made in the witness
box, were
sufficient and satisfactory to determine which evidence was
acceptable.
[39] It was further
argued on behalf of the appellant, that
Rondalia
and
SARFU
were referred to by the Supreme Court of Appeal in
Ndimeni,
where it was stated
inter alia
:
‘
It
is indeed so that the fact that an allegation of bias might be
established does not necessarily mean that the entire proceedings
will be vitiated.
’
Furthermore,
it was submitted that even though the facts of the present case are
different from those in
SARFU,
Rondalia, Rall
and
Ndimeni
,
those cases are not distinguishable from the present. According to
this argument “
provided
that the reasonableness of the decision of the arbitrator can be
tested against the reasonable commissioner test by the
court a quo,
which, given the comprehensiveness of the record it is submitted it
can be, the first respondent’s right to
have applied for the
recusal of the commissioner is not abrogated, the more so where the
court a quo is fully aware of the facts
and circumstances surrounding
the failure of the arbitrator to disclose her interests
”.
In elaboration of this latter point, it was submitted on behalf of
the appellant that the reasonable test laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[14]
which was expounded in
Herholdt
v Nedbank
[15]
and
Gold
Fields Mining (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation Mediation and Arbitration and Others,
[16]
“
by
its very nature promotes an analysis which removes the Commissioner
who heard the matter from the consideration of the evidence
and looks
to the notional reasonable commissioner to determine if the decision
reached was a reasonable one in the light of all
the evidence.
”
This, according to the argument, provided the first respondent with
sufficient protection against “
perceived
bias
and
illustrates that his rights in this regard cannot be abrogated by the
court a quo considering the merits of the matter
”.
The appellant submitted that this Court should, therefore, in the
exercise of its powers under section 174(a) of
the LRA, refer the
matter back to the Labour Court for it to deal with the other grounds
of review.
[40]
In respect of the merits, and particularly on the point of bias, the
following was submitted on behalf of the first respondent.
It is
evident from the common cause facts that the arbitrator had a direct
and substantial financial interest in the relationship
between PAS,
of which she was part owner, and the appellant; that the court
a
quo
correctly held that the arbitrator’s failure to disclose facts,
necessitated her recusal on the grounds of a reasonable apprehension
of bias. Reference was made to what was said in
Monnig
and Others v Council of Review and Others
[17]
and in
S
v Roberts
[18]
in
respect of the test for bias. Reference was also made to the facts in
Ndimeni
and
Benert
and it was submitted that there were similarities between the facts
in
Ndimeni
and the facts of this case.
[41] In the first
respondent’s supplementary note, it was submitted that the
appellant’s argument, that a finding of
bias should not result
in a vitiation of the entire arbitration proceedings, should be
rejected for several reasons. There are
material differences between
the facts in this case and those in
Rondalia
and
Rall
.
Firstly, in both those cases, the appeal court was able to cure the
irregularity committed by the court of first instance by exercising
its powers as appeal court and substituting the findings of the lower
court with findings of its own. It was not possible in this
case. If
the matter was to be referred back to the Labour Court, that court
only has the powers of a reviewing court and may not
liberally
substitute the arbitrator’s findings with its own. The
decisions in
Sidumo, Herholdt
and
Gold Fields
do not
change the position in that regard. Secondly, in
Rondalia
and
Rall,
the courts were dealing with forms of bias that were
identified and were thus able to cure the irregularities committed by
the
lower court. In this case, there is no reliance on actual acts of
bias, or identifiable or clearly identifiable manifestations of
it
and it would be difficult, if not impossible, for the Labour Court to
identify and eliminate or cure any irregularity occasioned
by bias.
[42]
In its supplementary note, the first respondent goes on to ask
rhetorically how the Labour Court is supposed to “factor
in”
any reasonable and objective basis from which to question the
arbitrator’s partiality. The first respondent further
refers to
the decision in
BTR
Industries SA (Pty) Ltd and Others v Metal and Allied Workers Union
and Another
[19]
where
the Appellate Division stated: “
Provided
the suspicion of partiality is one which might reasonably be
entertained by a lay litigant a reviewing court cannot, so
I
consider, be called upon to measure in a nice balance the precise
extent of the apparent risk. If a suspicion is reasonably
apprehended, then that is the end of the matter.
”
[43]
The first respondent further submitted that merely referring the
matter back to the Labour Court to deal with the other grounds
of
review, after having found that a reasonable apprehension of bias has
been established, would mean that the first respondent,
who has a
constitutional right to a fair hearing, has effectively been denied a
remedy for the infringement of that right. According
to this
argument, referring the matter back to the Labour Court would
therefore not be appropriate and ordering a fresh hearing
was correct
and supportive of the first respondent’s constitutional right
to a fair hearing from the outset.
The law
[44] The law and the duty
of disclosure and recusal have been aptly summarised by Ngcobo CJ in
Bernert,
even though the Constitutional Court was dealing
there with the position of a judicial officer and was not
specifically dealing
with a case of non-disclosure. The position
pertaining to an arbitrator would in material respects be the same as
that pertaining
to a judicial officer, save that in the case of
judicial officers there is a presumption of judicial independence.
[45]
Regarding the duty of disclosure, it was stated there:
[20]
‘
The
question which a judicial officer should subjectively ask himself or
herself, therefore, is whether, having regard to his or
her share,
ownership or other interest in one of the litigants in proceedings,
he or she can bring the necessary judicial dispassion
to the issues
in the case. If the answer to this question is in the negative, the
judicial officer must, of his or her own accord,
recuse himself or
herself. If, on the other hand, the answer to the question is in the
affirmative, the second question to ask
is whether there is any basis
for a reasonable apprehension of bias on the part of the parties,
whether on the basis of an interest
in the outcome of the case,
interest in one of the litigants (by shareholding, family relations
or otherwise) or attachment to
the case. If the answer to this
question is in the affirmative, the judicial officer must disclose
his or her interest in
the case, no matter how small or trivial that
interest may be. And, in the event of any doubt, a judicial officer
should err in
favour of disclosure.
’
[46]
Ngcobo CJ went on to state that the aforesaid was an established rule
of practice and that disclosure gave the parties an opportunity
to
object to the judicial officer sitting, or of bringing to the
judicial officer’s attention some aspect of the matter which
he
or she might have overlooked. The Chief Justice went on to mention
that the failure to disclose an interest, in itself, does
not lead to
a reasonable apprehension of bias, but may be relevant “only
because it may be said to cast some evidentiary
light on the ultimate
question of reasonable apprehension of bias”.
[21]
[47] The arbitrator
ought, therefore, to consider at the outset whether his or her
interest in one of the litigants, however small
or trivial such an
interest might be, ought to be disclosed. If the interest is of a
kind that would cause the arbitrator not to
bring the necessary
dispassion to the determination of the issues in the case, then the
arbitrator must of his, or her, own accord
recuse himself, or
herself. If the interest is not of a kind which would prevent the
arbitrator from bringing the necessary dispassion
to the decision of
the issues in the case then the arbitrator must, nevertheless, ask a
second question, namely whether there would
be any basis for a
reasonable apprehension of bias on the part of any of the parties
because of the arbitrator’s interest
in the outcome of the
case, or relationship to one of the litigants, whether it be through
or by shareholding, family relations
or any other kind of attachment
to the case. If the answer to that question is in the affirmative,
the arbitrator has to disclose
that interest no matter how small it
is. If the arbitrator has any doubt about whether to disclose the
interest, he, or she, should
err in favour of disclosure. At all
times, an arbitrator should aim to prevent the consequences that
might ensue if a reviewing
or appeal court concludes that the
arbitrator ought to have made the disclosure at the outset.
[48]
The failure to disclose an interest in itself does not lead to a
reasonable apprehension of bias. The test for bias is settled
and it
is whether a reasonable, objective and informed person would, on the
correct facts, reasonably apprehend bias.
[22]
The failure to disclose serves to cast “evidentiary light”
on whether there is a reasonable apprehension of bias.
[49]
On the question whether the entire proceedings are vitiated by bias,
the principle to be deduced from the cases, including
SARFU,
Ndimeni,
and
others, is as follows. If it is held that the arbitrator, or the
judicial officer, ought to have recused himself, or herself,
at the
outset then the entire proceedings before him or her are vitiated by
the failure to recuse himself or herself. It has been
held that
continuing to sit in proceedings in which the presiding officer ought
to have recused himself or herself at the outset,
constitutes an
irregularity for every minute of the proceedings in which the
presiding officer or arbitrator continues to sit.
[23]
In
Ndimeni
the judge did not disclose his interest in one of the litigants. On
appeal, the Supreme Court of Appeal held that he ought to have
disclosed his interest and that his failure to do so was an
irregularity. It was argued on behalf of the one party that the
consequence
of that conclusion was that the proceedings before the
judge were a nullity. Counsel for the respondent, however, argued
that since
it was a labour matter which should be disposed of
expeditiously, the Supreme Court of Appeal should not set aside the
proceedings
of the trial court, but consider the merits of the appeal
as it can be disposed of on the probabilities. The Supreme Court of
Appeal,
dismissing this argument, held that there was no reason “
why
the appellants or litigants in labour disputes generally, should be
denied a right to a fair trial, to which everyone else is
entitled
.
In
case where the judicial officer refuses to recuse himself or herself
when he or she should in fact have done so, what occurs
thereafter,
i.e. the continuation of the proceedings, is a nullity
”.
[24]
In support of the decision on that point, reference was made to what
the Appellate Division had said on the matter in
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
[25]
where, in turn, reference was made to what was held in
R
v Milne
and
Erleigh,
[26]
and, more particularly, in
Council
of Review, South African Defence Force and Others v Monnig and
Others
[27]
.
In
the latter case, Corbett CJ, in dealing with a situation where
officers, constituting a court martial, refused to recuse
themselves,
stated:
‘
What
must be remembered is that in the present case we are concerned with
the proceedings of what is in substance a court of law...
If, as I
have held, the court martial should have recused itself, it means
that the trial which it conducted after the application
for recusal
had been dismissed should never have taken place at all. What
occurred was a nullity. It was not, as in many
of the cases quoted to
us, an irregularity or series of irregularities committed by an
otherwise competent tribunal. It was a tribunal
that lacked
competence from the start. The irregularity committed by
proceeding with the trial was fundamental and irreparable.
Accordingly there was no basis upon which the Council of Review could
validate what had gone before. The only way the Council of
Review
could have cured the proceedings before the court martial would have
been to set them aside.
’
[28]
[50]
In
Moch
,
Hefer JA, applying what had been stated in
Monnig
to the facts in
Moch,
said
:
“
The
reasoning in Monnig’s case leads ineluctably to the conclusion
that should it be found that Fine AJ ought to have recused
himself,
the proceedings in his court must be regarded as a nullity.
”
[29]
[51]
However, in other cases of bias, the proceedings are not necessarily
entirely vitiated as has been consistently held in
inter
alia,
SARFU,
Ndimeni, Rondalia
and
Rall.
The
question in each of those cases would be whether the irregularity
constituted by the bias is curable. It has been held that
it is not
possible to lay down a general rule in that regard, but a failure of
natural justice may be cured on appeal.
[30]
In
Monnig
and
Others v Council of Review and Others,
[31]
the Cape Division of the High Court found that the bias in the
initial hearing had been so severe that the wrong was incapable
of
being cured. It is conceivable that where there is a complete
re-hearing it may be possible to cure any unfairness, but where
there
is anything less than a completely re-hearing, for example, as in the
case of an appeal, where the court of appeal is confined
to the
record, it would not generally be possible to cure the unfairness of
the initial proceedings.
[32]
[52]
In
Rondalia,
the appellant complained of the trial judge’s bias, and asked
that a new trial be ordered, alternatively that the Appellate
Division should determine the appeal on the basis of its own
evaluation of the evidence. The Appellate Division did not find that
the trial judge had prejudged the issues or was biased, although it
was critical of aspects of the trial judge’s conduct.
It
appeared to nevertheless adopt a precautionary approach and
identified the trial judge’s evaluation of the evidence as
the
reservoir of any possible bias or source of an impression of bias and
so did not rely on that evaluation. The court was also
mindful that
it was dealing with a judge and that there was a presumption in
favour of the integrity of the trial judge. The Appellate
Division
considered it a case where, even though it had to forego the trial
judge’s impressions and evaluation of the evidence,
a decision
could be made on the papers because the probabilities, apart from the
impression which the witnesses made in the witness
box, were
sufficient and satisfactory to determine what evidence was
acceptable.
[33]
But it is
important to remember that the court made that decision with
reference to the facts and circumstances of that case and
that the
Appellate Division had the power to do what it decided to do. It was
not a case where the Appellate Division held that
the judge ought to
have recused himself.
[53] In
Rall,
the
trial judge was held to have exceeded the bounds of reasonable
questioning. The Appellate Division held that the questioning
had
constituted an irregularity which had prejudiced the appellant. The
Appellate Division, however, found that the irregularity
was curable
and that the best way to remedy the prejudice and ensure that justice
was seen to be done by the appellant was “
to disregard the
adverse finding of the court a quo concerning the appellant’s
credibility and to determine afresh his guilt
or innocence according
to the recorded evidence
”. There too the court decided with
reference to the particular facts of that case that the irregularity
there, namely excessive
questioning, was curable and did not result
in the vitiation of the entire proceedings. It was not a case where
the Appellate Division
held that the trial judge ought to have
recused himself.
[54] To summarise, in
cases where it was held that the presiding officer ought to have
recused himself or herself at the outset,
but failed to do so, the
entire proceedings before the arbitrator or presiding officer are a
nullity. In cases where it is found
that the arbitrator or presiding
officer did not have to recuse himself or herself despite bias, the
appeal court generally has
a discretion to cure any defect which in
turn will depend on the facts and circumstances of every particular
case. Bias may nevertheless
be so severe and pervasive that it cannot
be cured other than by a complete re-hearing of the matter, or the
facts may be of the
kind encountered in
Rondalia
and
Rall
where the court of appeal or review, depending on its powers, may
cure the irregularity or perceived irregularity. The guiding
principle is that a litigant has a constitutional right to a fair
hearing from the outset to its conclusion. The hearing must not
only
be fair, but must also be seen to be fair. Anything less than that
would not suffice. The remedy employed must cure the irregularity;
it
must restore the right. Generally, nothing less than a complete
rehearing would be required.
The facts in this
case
[54] In my view, the
court
a quo’s
finding, that the arbitrator ought to have
disclosed the facts linking her to the appellant, was correct.
[55] The Code of Conduct
for Commissioners of the Commission for Conciliation, Mediation and
Arbitration (“
CCMA
”) which also applies to
arbitrators of Bargaining Councils deals
inter alia,
with the
duty to make disclosure and provides that “
Commissioners
should disclose any interest or relationship that is likely to affect
their impartiality or which might create a perception
of partiality.
The duty to disclose rests on the Commissioner
”. This
provision in the Code of Conduct is in line with the law as earlier
discussed.
[56] In my view, taking
into account the facts as disclosed by the arbitrator in her
affidavit in the court
a quo
, this is clearly a case where, at
least, the correct facts would have given rise to a reasonable
perception of partiality in favour
of the appellant.
[57] The law requires
disclosure of the correct and true facts of an interest of
relationship that the arbitrator or presiding officer
has with one of
the litigants. The presiding officer or arbitrator is not only to ask
himself or herself whether, notwithstanding
his, or her, interest or
link to one of the litigants, he, or she, can nevertheless bring the
necessary impartiality (or dispassion)
to the issues in the case, but
also whether the link or interest in the litigant might create a
perception of impartiality. If
there is any doubt about any of those
questions, it was for the arbitrator to err on the side of disclosing
the interest rather
than not disclosing it in order to avoid the
consequences of a later finding by an appeal or reviewing body that
he, or she, ought
to have disclosed the interest or link in the first
place.
[58] Much has been made
by the appellant in argument of the fact that the arbitrator had
stated in the affidavit that she “
genuinely
” and
“
in good faith
” did not believe that she had a
duty to make the disclosure concerning her interest in or link to PAS
and that between PAS
and the appellant and that the court
a quo
had found her affidavit to be “
frank and forthright
”.
I do not agree with the court
a quo’s
assessment that
the affidavit was “
frank and forthright
”. It might
appear so at first glance, but on a closer reading, the absence of
important facts pertaining to the relationship
and the possible
impact which an adverse finding against the appellant might
have had on the business relationship between
the appellant and PAS,
becomes apparent. Obvious facts that were not disclosed in the
affidavit include the value of the contract
between PAS and the
appellant and its duration and renewability. Frankness and
forthrightness are also not demonstrated by the
arbitrator, or the
appellant, by their persistent referral to PAS as the arbitrator’s
“
husband’s business
”, whereas the arbitrator
was not only the financier of the business, but a 50% shareholder in
PAS, thus a co-owner and also
a director of PAS. She also operated
from the same premises as PAS and shared facilities, and possibly,
expenses with it. Her averment
that she was merely a “sleeping
partner” in the business is inconsistent with the fact that she
is its Legal Director.
It is not unlikely that she was given that
position because of her legal expertise and that she would be
involved with the legal
aspects of that business. That she would be
benefitting financially from PAS, and indirectly from the appellant
through its contract
with PAS is not unlikely, given her position in
PAS.
[59] In my view, the
alleged genuineness (and “
bona fides
”) of the
arbitrator in considering whether to make the disclosure of the facts
pertaining to her relationship to PAS and
the appellant, is also
questionable, unless the arbitrator was completely ignorant of the
rules pertaining to disclosure, which
are simplified in the Code of
Conduct. Such ignorance, however, is also not likely if one has
regard to the arbitrator’s
apparent knowledge of the subject of
bias and recusal as demonstrated in her handling of this subject in
her award in deciding
whether the chairperson of the disciplinary
enquiry was biased. The arbitrator’s interest in PAS and the
appellant (by virtue
of the contract PAS had with the appellant)
cannot be said to be “
small or trivial
”, but even
if it was, it still required disclosure. The arbitrator and the
appellant’s attempts at trivialising those
interests of the
arbitrator are poor and far from convincing. The non-disclosure is
perhaps more explicable in light of what the
arbitrator has to say
about her business as arbitrator and consultant and the prevalence or
dominance of work in that area involving
Sasol and its divisions and
subsidiaries.
[60] The facts pertaining
to the arbitrator’s relationship to PAS and in turn, the
appellant, are indeed of a nature that
might reasonably have led to a
perception or apprehension that she may not have had the necessary
impartiality, or judicial dispassion
which is required by the law, in
particular, by our Constitution. The court
a quo
was thus
correct in concluding that she should have disclosed the facts
pertaining to her business relationship with PAS and the
appellant at
the outset of the arbitration proceedings. This would have presented
the first respondent with a choice to ask for
her recusal.
[61] Having said that,
the mere failure of the arbitrator to disclose the said facts at the
outset of the arbitration, does not
mean that she was biased, or that
she had to recuse herself. The latter is to be determined by means of
a second, objective enquiry,
namely, whether a reasonable, objective
and informed litigant would, on the correct facts, reasonably
apprehend bias. The court
a quo
in effect found that the test
was satisfied and that the arbitrator’s failure to disclose at
the outset of the arbitration
proceedings the facts she disclosed in
her affidavit before it, strengthened the apprehension of bias. In my
view, the finding
of the court
a quo
is unassailable save to
add that the arbitrator’s omission of crucial additional facts
pertaining to the contract between
PAS and the appellant, adds to a
reasonable apprehension of bias. It is noteworthy that the
arbitrator does not simply minimise
her interest and role in PAS and
omit other detail, pertaining to her relationship with PAS and the
relationship between PAS and
the appellant, in her affidavit, but
musters argument to justify her non-disclosure and her decision to
preside in the matter.
The fact that the arbitrator might have on
occasion found against the appellant does not dispel the apprehension
of bias in the
present case. In any event, the test is not whether
the arbitrator could have reasonably perceived to have been biased in
those
other cases, but whether, on the true facts in this case, a
reasonable litigant would reasonably apprehend bias on her part. The
court
a quo
’
s
finding in that regard is in my
view also unassailable. On the facts, the arbitrator would have had
to recuse herself from the
arbitration proceedings because of a
reasonable apprehension of bias. The first respondent did not have to
show actual bias. Proof
of a reasonable apprehension of bias by a
reasonable and informed litigant is sufficient for a recusal. The law
does not only require
that justice be done but that it be seen to be
done.
[62] In light of the
finding that the arbitrator ought to have recused herself at the
outset, it follows that the entire proceedings
before her are a
nullity. Accordingly, the court
a quo’s
finding that the
entire proceedings before her were “
null and void
’,
is correct. A fresh hearing is necessarily called for.
[63] In the result, the
appeal must fail. There is no reason in fairness and in law why the
appellant should not be ordered to pay
the costs of the appeal.
[64] It is accordingly
ordered that:
1.
The
late filing of the appeal record is condoned. The costs of that
application are costs in the appeal.
2.
The
appeal is dismissed with costs.
____________________
P
Coppin AJA
Tlaletsi
DJP and Molemela AJA agreed.
APPEARANCES:
FOR THE
APPELLANT:
Mr AN Snider
Instructed
by Cliffe Dekker Hofmeyer Inc.
FOR
THE RESPONDENT:
Mr TR Seleke of Seleke Attorneys
[1]
See
Motloi
v SA Local Government Association
[2006]
3 BLLR 264 (LAC).
[2]
1962
(4) SA 531
(A) at 532C-E.
[3]
1965
(2) SA 135
(A) at 141B-H.
[4]
(1999)
20 ILJ 2564 (LAC) para 10.
[5]
(2004)
25 ILJ 96 (LAC) para 16.
[6]
(2000)
21 ILJ 166 (LAC) at 174E-F.
[7]
1999
(7) BLLR 725 (CC).
[8]
[1999] UKHL 1
;
[1999]
1 All ER 577
(HL).
[9]
2011
(3) SA 92 (CC).
[10]
2011
(1) SA 560 (SCA).
[11]
See
para 42.
[12]
1971
(2) SA 586 (A).
[13]
1982
(1) SA 828 (A).
[14]
[2007]
12 BLLR 1097 (CC).
[15]
(2013)
34 ILJ 2795 (SCA).
[16]
(2014)
35 ILJ 943 (LAC).
[17]
1989
(4) SA 866
(C) at 879.
[18]
1999
(4) SA 915 (SCA).
[19]
[1992] ZASCA 85
;
1992
(3) SA 673
(A); (1992) 13 ILJ 803 (A) at 691F.
[20]
At
p 111 para 63.
[21]
See
at p111 para 64, referring to what was said in that regard in
Ebener
v Official Trustee
[2000] HCA 63
;
(2001) 205 CLR 337
(HCA) ([2000] HCA 63
[2000] HCA 63
; ;
176 ALR 644
;
75 ALJR 277)
para 37.
[22]
See
Bernert
(supra)
at page 11 para 64 referring to what was said in the
Ebener
case
(see previous footnote) at para 70.
[23]
See
R
v Milne and Erleigh
1951 (1) SA 1
(A) at 6H, which was cited with approval in the
SARFU
case
at 170 para 32.
[24]
At
para 24.
[25]
1996
(3) SA 1
(A) at 8J-9G and the cases cited there.
[26]
See
footnote 23.
[27]
1992
(3) SA 482 (A).
[28]
At
495A-D.
[29]
At
9F-G.
[30]
See
Slagment
(Pty) Ltd v Building Construction and Allied Workers Union
1995 (1) SA 742
(A) at 756G.
[31]
1989
(4) SA 866 (C).
[32]
See
for example
Police
and Prison Civil Rights Union v Minister of Correctional Services
2006
(2) All SA 175
(E) para 74.
[33]
See
at 590F.