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[2015] ZALAC 92
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South African Transport and Allied Workers' Union and Another v Tokiso Dispute Settlement and Others (JA 117/13) [2015] ZALAC 92 (5 May 2015)
INTHE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 117/13
In the matter between:–
SOUTH AFRICAN
TRANSPORT AND ALLIED
WORKERS’ UNION
(SATAWU)
First Appellant
FRANS
PHOKOBJE
Second Appellant
and
TOKISO DISPUTE
SETTLEMENT
First Respondent
RUSSEL MOLETSANE
Second Respondent
PUTCO
LIMITED
Third Respondent
Date heard: 05 March
2015
Date delivered: 05 May
2015
Summary: Review of
private arbitration award – jurisdiction – dispute about
the date of the publication of award –
award faxed to parties
on different date - assumption cannot be made that parties received
award on same day – review application
one day late –
employee failing to file condonation – time limit peremptory
and cannot be condoned without proper application.
Appeal dismissed.
Coram:
Waglay JP, Landman JA
et
Mngqibisa-Thusi AJA
JUDGMENT
LANDMAN JA
Introduction
[1] The South African
Transport and Allied Workers Union (SATAWU) and Mr Frans Phokobje
appeal against the whole of a judgment delivered
by the Labour Court
(Vatalidis AJ) on 27 September 2012 dismissing an application to
review an award of Mr Russell Moletsane (the
arbitrator) acting under
the auspices of Tokiso Dispute Settlement concerning the second
appellant and Putco Ltd. The appeal lies
with leave of this Court.
Background
[2] The second appellant
was employed by Putco as a ticket seller. He was dismissed for
allegedly selling lost monthly tickets.
A dispute was referred to
arbitration in terms of the Arbitration Act 42 of 1965 (the Act). The
arbitrator delivered or published
an award. The second appellant was
dissatisfied with the award and brought an application to review it.
In terms of section 33(2)
of the Act, an application to review an
award must be made within six weeks after publication of the award to
the parties. In the
case of corruption, the period is longer but that
is not relevant here.
[3] The Labour Court
found that the application was launched out of time, without an
application for condonation of the failure
to launch the application
timeously, and therefore the court lacked jurisdiction to entertain
the application. It is therefore
necessary to set out how the issue
of jurisdiction was raised. The following facts and circumstances are
relevant:
(a)
The
application for review was launched on 5 November 2005.
(b)
The
appellants state in their founding affidavit that “… the
arbitrator issued an award dated 29 August 2005…”
(c)
The
award of this date is attached to the founding affidavit together
with a fax coversheet bearing the Tokiso Logo and particulars.
It is
dated 5 October 2005 and is addressed to Mr Mataboge and says
“Attached please find the award for your kind attention”.
The transmission details read: “Oct-5-2005 08:59 FROM: TOKISO
3255791 TO: 012328339.”
(d)
The
award and coversheet are linked to the founding affidavit by virtue
of the mention of the dispute number “P5/260”.
(e)
Putco
raised the issue in an answering affidavit in the following manner:
‘
I am
advised that as the arbitration was a private arbitration, it was
subject to the provisions of the Arbitration Act 42 of 1965
(“the
Arbitration Act&rdquo
;). I am further advised that in terms of
section 33(2)
of the
Arbitration Act, an
application for review
should be brought within six weeks of the date of receipt of the
award
.
The
award is dated 29 August 2005 and was faxed by Tokiso to the Third
Respondent on 8 September 2005. I assume that the award was
also
faxed by Tokiso to the first applicant on that date. A period of six
weeks calculated from 8 September 2005 would have lapsed,
according
to my calculations on 20 October 2005. The review application is
dated 11 November 2005 and was telefaxed to the Third
Respondent on
14 November 2005. Accordingly, I submit that the review application
was instituted outside the period prescribed
in the
Arbitration Act
and
that on this basis, the review stands to be dismissed with
costs.’
(f)
The
appellants did not file a replying affidavit
.
The court
a quo’s
ruling
[4]
The court
a
quo
noted that the application had been filed with the registrar on 17
November 2005. The court was referred to the fax cover sheet
but
noted that the appellants had not said under oath when the award was
received. The court applied the test in
Plascon-Evans
Paint Ltd v Van Riebeeck Paints (Pty)
Ltd
[1]
and said at paras 13 and 14 of the judgment:
‘
Applying the
test set out in
Plascon-Evans,
this Court, in the absence of any pleaded response to the third
respondent’s claim that the arbitration award was delivered
to
the applicants on 8 September 2005, has no alternative but to accept
the respondent’s version that the applicants received
the
arbitration award at the same time as the third respondent on
September 2005.
Having accepted the respondent’s
version in this instance, it would seem that the applicants filed
their review application
outside the six week time period required
for arbitration awards and have simultaneously failed to apply for
condonation for their
late filing of the review application.’
Evaluation
[5] Mr J S Mphahlani, who
appeared on behalf of the appellants, submitted that the appellants
sought to review the award in terms
of
section 145(1)
of the
Labour
Relations Act 66 of 1995
. This does not assist him. First because the
arbitrator arbitrated the dispute in terms of the
Arbitration Act 42
of 1965
and secondly the period within which to apply for the review
of an award is six weeks under both Acts.
[6] In order for the
court
a quo
to decide whether the application for review had
been brought timeously, that is within the six week limit, it was
essential for
the court to determine when the award was “published”.
Section 25(1)
provides that the award shall be delivered by the
arbitration tribunal, the parties or their representatives being
present or having
been summoned to appear. (2) The award shall be
deemed to have been published to the parties on that date on which it
was so delivered.
[7] The parties and the
court
a quo
were content to assume that an award was duly
published when the parties received it. Implicit in this must be the
further assumption
that if the parties each received the award on
different dates the award would be assumed to have been published on
the date that
it is last received. It is unnecessary to decide when
an award may be assumed to be published where it is not delivered in
the
presence of the parties. This appeal may be decided on the
assumptions which the parties and the court
a quo
made.
Publication of the
award
[8]
The
onus
,
generally speaking, was upon the appellants to show that the review
application had been launched timeously because this is a
fact or
element which goes to establishing the jurisdiction of the Labour
Court to hear the application for review. But the question
of where
the
onus
lies depends upon the form in which a challenge is mounted. In
Malherbe
v Britstown Municipality,
[2]
Ogilvie-Thompson AJ (as he then was) said the following:
‘
Under the
procedure now prescribed by Act 32 of 1944 any question of onus which
arises in connection with any challenge of the Court's
jurisdiction
must, in my judgment, be determined on a consideration of the
particular form in which that challenge is raised on
the pleadings in
the particular case. It is the province of the plaintiff to establish
the jurisdiction of the Court into which
he, as
dominus
litis
,
has brought the defendant. In this sense the onus of establishing
jurisdiction is, in my view, always on the plaintiff. But the
form of
defendant's plea may be such as to burden him with an onus to prove
certain facts. As shown by VAN DEN HEEVER, J.P. (as
he then was) in
Lubbe
v Bosman
[3]
,
there is weighty Roman-Dutch authority for the proposition that once
a defendant raises the
exceptio
fori declinatoria
as a substantive plea 'the onus rests upon him of proving the facts
upon which his plea to the jurisdiction is based'. In such
a case the
defendant in his plea avers the existence of certain facts which, if
proved, will defeat the jurisdiction. The onus
of proof of such facts
rests upon the defendant.'
[4]
See
also
Munsamy
v Govender
1950
(2) SA 622
(N) at 624.
[9] I am of the opinion
that appellants bore the initial
onus
and it remained with
them. Although the appellants may be excused for not filing an
affidavit by Tokiso setting out when the award
was delivered, it
should have made an averment about when the award was received; more
so when the date of receipt was challenged.
The appellants placed
before the court the award (this is common cause) and a coversheet
prima facie
showing that the award was faxed by Tokiso to the
appellants on 5 October 2005 but without an affidavit stating when
the award
was received.
[10] The award was not
delivered in the presence of the parties. This has the effect that
the presumption in section 25(2) does
not apply. The date of the
award of 29 August 2005 is of no significance in this case. The
arbitrator followed a procedure, which
is fairly common, of providing
a copy of the award to the parties by fax. This may well be in
accordance with Tokiso’s domestic
rules but the rules have not
been referred to in the papers.
[11] Where an award is
not delivered in the presence of the parties, it would probably not
be sent simultaneously. Some interval
would elapse. Putco does not
deny that the appellants received the award by fax on 5 October 2005.
It may be that the deponent
to Putco’s answering affidavit
overlooked the fax coversheet attached to the appellants’
papers. In any event, the
furthest that Putco is prepared to go is to
say that the award was faxed by Tokiso to Putco on 5 September 2005
and it assumes
that the award was also faxed by Tokiso to the
appellants on that date.
[13] Of course, the
appellants should have filed a replying affidavit which would have
assisted the court but this was not done.
But they were not obliged
to do so.
[14]
The court
a
quo
overlooked the fact that the deponent to Putco’s answering
affidavit was making an assumption. It was incumbent on the court
a
quo
to interrogate the assumption and to determine whether the assumption
was such that it could be elevated to a fact. L Steynberg
“Fair"
Mathematics in Assessing Delictual Damages”
2011(14)2
PER/PELJ
relying
on Keynes
Treatise
on Probability
points out that:
‘
Probabilities
are not surrendered to human imagination, which means that a
supposition or assumption is not probable merely because
someone
thinks so. The facts that establish the knowledge upon which the
probability is based should be determined objectively
and
independently of human opinion.’
[5]
[footnote omitted]
[15] The assumption, in
the light of the fax coversheet apparently sent with the award to the
appellants, casts doubt on the correctness
of that assumption. But it
is unnecessary to rely on this as where an award is not delivered in
the presence of parties but is
faxed to one party it cannot be
assumed as a fact that it reached the other party at the same time or
on the same date. There are
many reasons why it might have not been
faxed to the appellants on the same date that it was faxed to Putco.
The court
a quo
should have found that the award was published
as regards the appellants on 5 October 2005.
[16]
If the court
a
quo
could
not decide when the award was published, the court was empowered to
remit the award to the arbitrator to deliver it in the
presence of
the parties. Cf M Jacobs
The
Law of Arbitration in South Africa
(Juta 1978) 129 and
Anning
v Hartley
(1885)
27 LJ Ex 145
, 2 Dig (Repl) 453.
Timeous application
[17] What remains is to
determine whether the application was filed within the period of six
weeks after publication of the award
to the parties on the basis that
5 October 2005 was the date of publication of the award. Mr Mphahlani
initially submitted that
the last day for delivery of the award was
16 November 2005. But when it was pointed out to him that this meant
the application
was delivered late, he submitted that 19 November was
the last day. I do not agree with his second submission.
[18] The calculation of
this period is done not in accordance with section 4 of the
Interpretation of Statutes Act 33 of 1957 by
excluding the first and
including the last day unless the last day is a Sunday or public
holiday which is then excluded, but in
terms of the civil method. See
LC Steyn
Die Uitleg van Wette
(Juta 1981 5
th
Ed) at
174-175. In terms of this method, the first day is excluded so that
the period runs from the next day. Therefore the review
application
had to be filed before 17 November. As the application was filed on
17 November 2005, it was not filed timeously. It
was one day late.
Strictly speaking an application for condonation was required. Where
an application is filed but a day or two
out of time then in the
absence of prejudice an application from the bar may have sufficed.
Even this was not done.
[19]
During his oral argument, Mr Mphahlani referred us to the judgment of
this Court in
MTN
v Pravin and Another
(unreported judgment dated 1 February 2002 in case JA4/01). This
judgment is of no assistance to him as the respondent there had
applied for condonation for his failure to refer a dispute timeously.
We were also referred to a number of judgments, all to the
effect
that technical objections to less than perfect procedural steps
should not be permitted
in
the absence of prejudice. See for example
Trans-African
Insurance Co Ltd v Mauleleka
1956 (2) SA 273
(A). This is correct but where the steps constitutes
a jurisdictional step, a time limit, and the party is out of time
then, in
the absence of an application for condonation, a court
cannot come to the party’s assistance.
[20] In the result, the
appeal fails and must be dismissed.
[21] It will be fair to
make no order for costs.
Order
[22] I make the following
order:
1.
The
appeal is dismissed.
There
is no order as to costs.
Landman JA
I
agree
Waglay
JP
Mngqibisa-Thusi AJA
APPEARANCES:
FOR
THE APPELLANTS:
Adv J S Mphahlani
Instructed by MM Baloyi
Attorneys.
FOR
THE THIRD RESPONDENT:
Mr
RM Carr of Bowman Gilfillan Inc.
[1]
[1984] ZASCA 51
;
[1984] 2 All SA
366
(A) at 731.
[2]
1949 (1) SA 676
(C).
[3]
1948 (3) SA 909
(O) at 914-915.
[4]
At 287.
[5]
At 13/226.