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[2015] ZALAC 53
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Henred Fraunhauf (Pty) Ltd and Another v Marcus N.O and Others (JA41/14) [2015] ZALAC 53; [2016] 4 BLLR 401 (LAC) (8 December 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JA 41/14
In the matter between:
HENRED
FRAUNHAUF (PTY)
LTD
First
Appellant
HOUSE OF TRUCKS (PTY)
LTD
Second
Appellant
and
MARCUS M H
N.O
(cited in his
capacity as
Commissioner of the Commission for
Conciliation, Mediation and
Arbitration)
First
Respondent
THE COMMISSION FOR CONCLIATION
MEDIATION AND
ARBITRATION
Second Respondent
NATIONAL UNION OF METALWORKERS
OF SOUTH
AFRICA
Third
Respondent
THE METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL
Fourth
Respondent
THE MOTOR INDUSTRY BARGAINING
COUNCIL
Fifth
Respondent
Heard:
13 May 2015
Delivered: 08
December 2015
Summary: Filing of record in review
proceedings - incomplete record filed by applicant despite being
warned that matter could not
be determined on an incomplete record -
record showing that applicant relying on evidence not forming part of
the transcribed record
- Impossible to determine merits of dispute in
the circumstances – Appeal dismissed with costs.
Coram: Tlaletsi DJP; Sutherland JA
and Mngqibisa-Thusi AJA
JUDGMENT
TLALETSI DJP
[1]
This
is an appeal against the judgment of the Labour Court (Steenkamp J)
dismissing an application to review and set aside certain
parts of
the demarcation award issued by the first respondent, a commissioner
acting under the auspices of the second respondent
the CCMA.
[2]
The
third respondent is a trade union
registered
in terms of the
Labour Relations Act (LRA),
[1]
acting in its own
capacity and on behalf of its members employed by the first and
second appellants (the appellants). Appellants
are companies
incorporated with limited liability in terms of the company
legislation of the Republic.
[3]
The
fourth respondent is the Metal and Engineering Industries (MEIBC), a
bargaining council duly registered and incorporated in
terms of the
provisions of the LRA. The fifth respondent is the Motor Industry
Bargaining Council (MIBCO) also a bargaining council
registered in
terms of the LRA.
[4]
The
first appellant manufactures a variety of road freight trailers that
are attached to trucks to transport goods by road. It also
manufactures what is commonly known as tanker trailers. In addition,
the first appellant conducts the business of manufacturing
of axles
for the aforesaid trailers. The second appellant conducts the
business as the manufacturer of tanker trailers.
[5]
The
appeal is brought jointly by the appellants, and is opposed by the
third and fourth respondents hereinafter collectively, the
respondents.
[6]
In
terms of the dispute referred to the CCMA by the parties, the
Commissioner was required to determine whether and to what extent
the
business enterprise activities engaged by the first and second
appellant in the manufacturing of the tankers and trailers and
the
business enterprise and activities engaged by the first appellant in
the manufacturing of axles fall within the scope of registration
or
either MEIBC and/or MIBCO.
[7]
Having
considered the documentary as well as oral evidence presented by the
parties and having considered the relevant certificates
of the two
Bargaining Councils, the Commissioner made an award on the following
terms:
‘
Demarcation
Award
1.
The
axle factory
The
axle factory conducted by the first respondent at its Wadeville
premises is declared to fall within the scope and jurisdiction
of the
Metal and Engineering Industries regulated by the second respondent.
First respondent is hereby ordered to register the
axle factory at
Wadeville and its employees therein employed with the second
respondent.
2.
Second
applicant’s and first respondent’s trailer and tanker
building and maintenance activities at Bellville and Wadeville
2.1.
Any
of the parties to this dispute shall be entitled to amplify their
evidence or submit further evidence to this arbitration with
a view
to establishing whether either or both of second applicant and/or
first respondent’s trailer building and maintenance
undertakings at Bellville and Wadeville are predominantly engaged in
the building of “trailers (which include tankers) designed
to
transport loads of 27273 kg over” or whether either or both of
these undertakings are primarily or predominantly engaged
in the
building of “trailers (which include tankers) designed to
transport loads of less than 27273 kg”. Should the
former
position be established in respect of either of these undertakings,
that undertaking will be deemed to resort under the
jurisdiction of
the second respondent. Should the latter be established to be the
position in respect of either undertaking, that
undertaking will be
deemed to resort under the third respondent’s jurisdiction.
2.2.
Notwithstanding
my ruling in paragraph 2.1 above, first respondent shall not be
entitled to submit further evidence as contemplated
in 2.1 to
establish that its trailer building and maintenance undertaking at
Wadeville falls within the weight limitation prescribed
in the
definition of the Motor Industry in the absence of an application by
or on behalf of first respondent on good cause shown
for the
withdrawal of its admission in paragraph 10.2 of the pre-arbitration
minutes at page 48 of Bundle B having been made and
granted by the
arbitrator, failing which first respondent will be precluded from
submitting further evidence to its arbitration
contrary to the terms
of the admission.
2.3.
Subject
to paragraph 2.2 above, any of the parties hereto shall be entitled
to request case management at CCMA National Office to
enrol this
matter for the submission of further evidence as contemplated in
paragraphs 2.1 and 2.2. above, provided such request
be lodged with
CCMA National Office within 30 calendar days of receipt of this
Determination or such extended period may be permitted
upon written
application to the arbitrator.’
[8]
Aggrieved
by the aforesaid
award, the appellants instituted review proceedings in the Labour
Court in which they sought to review and set
aside the award. The
grounds of review relied upon by the appellants were to challenge the
commissioner’s interpretation
of the certificates of
registration of the bargaining councils on the basis that the
Commissioner misconstrued the evidence presented
to him, committed a
gross and reviewable irregularity in not considering all the issues
presented to him as evidence, that the
determination made is clearly
unreasonable, unjustifiable, irrational and irregular, did not
determine the factual issues before
him and exceeded his powers in
terms of the LRA.
[9]
The
Labour Court found that the conclusion reached by the Commissioner in
his demarcation award is not so unreasonable that no other
arbitrator
could have come to the same conclusion and is therefore not open to
review. The review application was consequently
dismissed with no
order as to costs.
[10]
Mr
Van der Riet SC, appearing on behalf of the respondents, raised an
objection to the effect that the record of the proceedings
in the
Labour Court and in this Court is incomplete as it does not include a
transcript of the proceedings in the arbitration.
He argued that the
appeal cannot be determined on the incomplete record and that the
appeal should on this ground alone be dismissed.
[11]
It is
indeed correct that the record does not include a transcript of the
arbitration proceedings. This problem is not something
new. On 20
August 2008, the respondents’ attorneys wrote to the
appellants’ attorneys acknowledging receipt of the
appellants’
notice in terms of Rule 7A(8) of the Rules of the Labour Court. They
also advised that they were not aware of
the service of the
transcript of the proceedings and requested information about where
and when such transcript was served as a
matter of urgency. The
letter was followed by a letter dated 8 September 2008 requesting
among others, the transcript. According
to the respondents, the
second letter was sent because a reply from the appellants’
attorneys to their first letter was not
forthcoming.
[12]
However,
the appellants have produced a letter dated 26 August 2008 addressed
to the respondents’ attorneys in which reference
is made to the
letter of 20 August 2008 and advised that Rule 7A (6) notice together
with the transcriptions were sent per registered
mail and that the
respondents’ attorneys should expect to receive a notification
from the Post Office to collect the items.
On 26 August 2008, the
respondents’ attorneys acknowledged receipt of the parcel but
that it did not contain a transcript
of the proceedings and requested
to be provided with the transcript as a matter of urgency.
[13]
On 8
September 2008, the respondents’ attorneys wrote another letter
to the appellants’ attorneys requesting that the
transcript be
served on them urgently. This letter was followed by another one
dated 26 September 2008 both which were not responded
to. On 14 April
2008, the respondents’ attorneys wrote a further letter to the
appellants’ attorneys in which they
expressed among others,
their surprise that the record for the review application has been
indexed and paginated with the appellants’
responding to the
letters requesting the transcription of the proceedings in the
arbitration. Until this date, no mention was made
by the appellants
that they would not rely on the transcript for their review
application and that it was therefore not necessary
to file the
transcript of the arbitration proceedings. On the contrary, the
previous correspondence created an impression that
the transcript was
part of the documents posted to the respondents.
[14]
On 30
April 2009, the appellants’ attorneys wrote a letter to the
respondents’ attorneys and advised
inter
alia
,
that the tape recordings are inaudible and that the respondents’
attorneys were in possession of all the documents in the
matter.
[15]
It is
common cause that at no stage was any attempt made by the appellants
or their legal representatives to reconstruct the record
of the
arbitration proceedings. The respondents warned the appellants in
their answering affidavit for the review application that
they intend
arguing, at the hearing of the matter, that the review application
cannot be determined without the record of the arbitration
proceedings and that the review application should be dismissed.
[16]
In
the replying affidavit, the appellants’ response to the above
notice was
inter
alia,
that
“
the
matter can fully and properly be determined on the record of the
documents as it stands bearing in mind that only part of the
arbitration award of the first respondent is sought to be challenged
in terms of this review application. The principal issue in
respect
by the review is in fact nothing more than an interpretation and
application of the certificate(s) of the MEIBC/MIBCO,
in respect of
which any viva voce evidence at the arbitration is irrelevant. The
contention of the [Appellants] is that the first
respondent did not
interpret and apply the provisions of these certificates as a
reasonable decision maker could have done, on
the grounds set out in
the founding affidavit.
”
They
further contended that the
viva
voce
evidence
led at the arbitration cannot in any way contribute towards the
proper and fair determination of the review application.
[17]
There
is no reference in the judgment of the Labour Court to the fact that
the record is incomplete and what that court’s
attitude thereto
was. We have however been assured by counsel for the respondents
without any counter, that the issue was argued
before the Labour
Court. This Court is nevertheless not precluded from considering the
issue since it has been raised by the respondents
in this Court.
[18]
In
the affidavit filed in support of the application for review deposed
to by Willen Meyers Coetzer, the first appellant’s
managing
director, reference is made to the evidence of a certain Mr Winston
Lubbe who testified on behalf of the council as well
as a certain
Matthews who testified for the appellants. It is not clear from the
record whether they were the only witnesses who
testified at the
arbitration hearing. There is extensive reference in the supporting
affidavit to the evidence that was before
the Commissioner which is
said to have been ignored or misconstrued by the Commissioner when he
made his findings on the two issues
which are the subject matter of
this appeal.
[19]
To
complicate matters further, the respondents have made it clear in
their papers that they did not accept the appellants’
record or
recollection of what evidence was presented to the Commissioner.
Without the transcript of the proceedings, it is impossible
for this
Court to resolve this and many other factual disputes between the
parties on what evidence were actually presented before
the
Commissioner. Furthermore, without knowing what evidence was
presented before the Commissioner, it is difficult for this Court
to
evaluate the grounds of review that are dependent on the assessment
of the evidence presented and determine whether the award
of the
Commissioner is reasonable. Such an assessment cannot be made on the
averments made in the affidavits which are not even
common cause.
[20]
It
has been shown above that the respondents were at all times concerned
about the failure to file the transcript of the arbitration
proceedings and advised the appellants’ attorneys on numerous
occasions about their concern. Instead of taking the required
steps
to reconstruct the record and to report on the outcome of the
process, the appellants elected to present their review application
on the incomplete record and contest that the transcript is not
necessary. However, what is clear from the record is that the
challenges to the findings made by the Commissioner are based on the
evidence that was presented. Mr Snyman, who appeared on behalf
of the
appellants conceded that some of these contentions are based on the
evidence presented at the arbitration and that the transcript
is
necessary.
[21]
For
the above reasons, this Court is not placed in a position to be able
to consider the merits of the appeal and, as such, the
appeal falls
to be dismissed.
[22]
There
is another matter that raises a concern. It would appear that the
manner in which the award is worded is not final. The Commissioner
has only made a ruling on the interpretation of the Bargaining
Councils’ registration certificate without making a demarcation
award. The parties are still entitled to “amplify their
evidence or submit further evidence” to the Commissioner with
a
view to establishing whether either or both of the parties’
undertakings are predominantly engaged in the building of trailers
designed for loads of 27273 kg or over and it is only then that a
demarcation award would be made. Given the nature of the dispute,
a
demarcation made in these circumstances has in my view, a potential
of influencing a demarcation on the axle factory referred
to in
paragraph 1 of the award.
[23]
Given
the provisional nature of the award, I am of the view that the
dispute before us is moot and this Court should not concern
itself
with disputes that are moot. Compliance with the award as couched
makes compliance impossible. The issue of mootness was
recently
considered by this Court in
Potgietersrust
Platinum Ltd v Ditsela and Others
[2]
where Ndlovu JA
held that:
‘
[9]
It is trite that, save in exceptional circumstances, a court will
only entertain a dispute
as long as such dispute remains live between
the parties. It is so because a court does not need to make an order
that will be
incapable of execution by virtue of the matter having
become academic. In
Geldenhuys
& Neethling v Beuthin
,
the Appellate Division (
per
Innes
CJ) stated the following:
“
After
all, Courts of Law exist for the settlement of concrete controversies
and actual infringements of rights, not to pronounce
upon abstract
questions, or to advise upon differing contentions, however
important.’’
[10]
Recently, the Legislature promulgated the Superior Courts Act,
section 16(2) (a) of which provides
as follows:
“
(2)
(a) (i) When at the hearing of an appeal the issues are of such a
nature that the decision sought will have no practical effect
or
result, the appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs.”’
[3]
[Footnotes
omitted]
[24]
In
light of the mootness of the dispute as well as the state of the
record, it shall not be necessary to traverse the merits of
the
appeal.
[25]
The
appellants were warned that the record is incomplete and ought to
have taken steps to reconstruct the record.
[4]
It would in my view
be in accordance with the requirements of law and fairness that the
appellants carry the costs of appeal.
[26]
In
the result, the following order is made:
The appeal is
dismissed with costs.
_____________________
Tlaletsi DJP
Sutherland
JA and Mngqibisa-Thusi AJA concur in the judgment of Tlaletsi DJP.
APPEARANCES:
FOR THE APPELLANT:
S Snyman of Snyman Attorneys
FOR THE THIRD AND FOURTH
RESPONDENTS:
H Van der Riet SC
Instructed by: Ruth Edmonds Attorneys.
[1]
Act 66 of 1995.
[2]
Case No JA66/12 delivered on 2 July
2014 Unreported.
[3]
At paras 9 and 10.
[4]
See
Papane
v Van Aarde N.O. and Others
[2007] 11 BLLR 1043
(LAC) at paras 27 and 30.