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[2016] ZALAC 81
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Francis Baard District Municipality v Rex N.O (JA29/2015,JR1000/2011) [2016] ZALAC 81 (28 June 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Court Case No: JR1000/2011
Appeal Case no: JA29/2015
In the
matter between:
FRANCIS
BAARD DISTRICT MUNICIPALITY
Appellant
and
REX,
C N.O. (cited in his capacity as
Arbitrator
of the South African Local
Government
Bargaining Council
First Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
SAMWU
obo L H SHUSHU
Third
Respondent
Heard:
10 May 2016
Delivered:
28 June 2016
Summary: Review of arbitration award – incomplete record
filed in the review application – court should enquire whether
the missing part of the record is material to the determination of
the review. Materiality would be decided after considering,
inter
alia
, the grounds of review, the nature of the missing evidence
and the attitude of the arbitrator and the parties. Court should also
assess whether all reasonable steps were taken to get the missing
part or to reconstruct the record. Missing part of the record
linked
to the grounds of review – court could not consider the grounds
of review in the absence of the facts which it is
alleged the
commissioner failed to apply his mind to – Evidence showing
that applicant also failed to take all reasonableness
steps to
attempt the reconstruction exercise; neither did the applicant
approach the commissioner for reconstruction – right
of the
applicant to review overweighed by the employee’s right to
speedy resolution of the dispute – Labour Court’s
judicially exercised its discretion to dismiss the review –
Appeal dismissed with costs.
Coram:
Davis, C J Musi JJA, and Murphy AJA
JUDGMENT
C J
MUSI JA
[1] This is an appeal against the judgment of the Labour Court,
(Morgan AJ), wherein it dismissed the appellant’s review
application for want of a proper record to entertain the merits of
the application.
[2] Ms Shushu (the employee) was employed by the appellant since
August 2006. During 2010, she was charged with misconduct; found
guilty and dismissed on 6 August 2010. An internal appeal and
conciliation under the auspices of the second respondent (South
African Local Government Bargaining Council (SALGBC)) failed. She
referred the dispute to arbitration.
[3] The first respondent (the Commissioner) found that her dismissal
was substantively unfair. He ordered her reinstatement.
[4] Dissatisfied with the award, the appellant launched a review
application in the Labour Court. It was common cause that the
record
of the proceedings before the Commissioner was incomplete. The
appellant called four witnesses, during the arbitration,
but only one
witness’ testimony was transcribed in full. Two witnesses’
testimonies were not transcribed at all and
one witness’
testimony was incomplete (re-examination was not transcribed). The
employee’s testimony was also incomplete
because her
re-examination was not transcribed.
[5] The appellant filed its review application on 11 May 2011. The
SALGBC filed the record, including five compact disks, on 24
May
2011. The SALGBC did not serve the record on the Commissioner. The
appellant furnished the third respondent with the record
of
proceedings on 11 April 2012; almost a year after it received the
compact disks.
[6] The third respondent filed its answering affidavit on 20 June
2012 in which it raised the preliminary point about the defective
record. It is not clear why the appellant did not see that the record
is incomplete.
[7] Having been made aware of the defective record, the appellant
wrote to the third respondent on 27 June 2012, stating the following:
‘
Now
it is true that the transcript is missing one audio file, being the
testimony of two witnesses, being Lebo Modise and Anita
Grebe.
We were going to call on you to participate in a possible
reconstruction exercise in respect of the evidence of these
two
witnesses, once you had filed the answering affidavit.’
[8] This is not entirely correct, because, as pointed out above, more
than the testimony of the two witnesses was missing.
[9] The third respondent replied on 11 July 2012 stating that:
‘
Any
reconstruction exercise ought to have been conducted prior to you
delivering the record and your client’s Rule 7A(8) notice.
Be
that as it may and without prejudice to our client’s rights, we
are prepared to participate in the reconstruction of the
evidence of
Lebo Modise and Anita Grebe led at the arbitration proceedings.”
[10] The appellant’s attorney replied on 17 July 2012,
indicating that “we shall revert to you shortly about the issue
of reconstruction”.
[11] Approximately six months later, on 29 January 2013, the
appellant’s attorneys reverted by stating:
‘
The
difficulty we have is that there is simply no basis from which the
record can be reconstructed. Our client kept no notes
of the
evidence. There are also no notes of the arbitrator, other than
the evidence of Grebe and Modise as recorded in the
award. To
compound difficulties, this is not a situation where parts or
sections or lines/words are missing from the evidence,
the entire
evidence of these two witnesses is missing. Our view is that further
reconstruction is not possible.’
[12] The appellant’s attorney then indicated that they shall
stand or fall by the incomplete record. He stated the
following
in a letter of 29 January 2013:
‘
We
intend to proceed with the review application on the basis of the
record as it stands. In terms of our earlier undertaking
to
you, please advise whether you wish to file a further answering
affidavit on the basis of the record as it stands.’
[13] The court
a quo
, after hearing argument, found that the
missing parts of the record were material and that the matter could
not continue without
these missing parts. It considered whether to
remit the matter to the SALGBC or to dismiss the application.
It found that
the applicant was not diligent enough with regard to
the reconstruction of the record and decided to dismiss the
application.
[14] Mr Orten, on behalf of the appellant, argued before us that the
decision of the court
a quo
was incorrect and that it should
have remitted the matter back to the SALGBC. He contended that the
court
a quo
used the wrong test to decide the matter. He
submitted that there was enough material before the court
a quo
to decide the matter. He further submitted that the court
a quo
did not give sufficient weight to the consideration that the
appellant had a right to review.
[15]
I agree with Mr Orten that the appellant’s right to review is a
very important consideration. The dismissal of the review
application
because the record is incomplete shuts the door for the appellant.
The appellant has a constitutional right to have
the dispute resolved
in a fair public hearing before a court.
[1]
However if it is impossible to decide the dispute in a fair manner
and the applicant does not do enough to enable a court to decide
the
matter in a fair manner; what is a court to do? The court has a duty
to see to it that justice is done and that all the parties
to the
dispute are treated fairly.
[16]
Although it was not the appellant’s duty to record and preserve
the testimonies of the witnesses, it had a duty to ensure
that it
places the best record before the court
a
quo
.
[2]
It should take all reasonable steps to achieve this. In
Peter
Fountas v Brolaz Projects (Pty) Ltd and Others,
[3]
this Court said the following:
‘
In
my view there can be no doubt that the court
a
quo
should not have proceeded to consider the merits of the review
application in this matter when there was material evidence missing
in the record. What the Court
a
quo
was required to have done was to consider whether the first
respondent as the applicant in the review application had taken all
reasonable steps to search for such evidence and or to reconstruct
the record. If the first respondent had taken all reasonable
steps to either find the missing evidence or to reconstruct the
record and these had been to no avail, it could then have had to
deal
with the question of what should be done. If, however, it was
of the view that the first respondent had not taken all
reasonable
steps that it could and should have taken, it would have had to
choose one of two options…’
[4]
[16] Nkabinde JA, (as she then was), went on to state the options,
namely dismiss the application, or postpone it or strike it
of the
roll. Nkabinde JA stressed that the dismissal option is not one that
a court should take lightly.
[17] The third respondent offered to participate in the
reconstruction process and to that extent, she suggested a few dates
on
which such reconstruction could be done. The appellant did not
take up the offer. Instead, it was obsessed with its own lack of
notes and to some extent the Commissioner’s notes. In the
process it forgot that the third respondent was also a party to
the
proceedings and that it or the employee might have notes. No
enquiry in this regard was made.
[18]
In
Lifecare Special Health Services
(Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA and Others,
[5]
the manner in which a reconstruction ought to be done was properly
explained by the court as follows:
‘
A
reconstruction of a record (or part thereof) is usually undertaken in
the following way. The tribunal (in this case the commissioner)
and
the representatives (in this case Ms Reddy for the employee and Mr
Mbelengwa for the employer) come together, bringing their
extant
notes and such other documentation as may be relevant. They then
endeavour to the best of their ability and recollection
to
reconstruct as full and accurate a record of the proceedings as the
circumstances allow. This is then placed before the relevant
court
with such reservations as the participants may wish to note. Whether
the product of their endeavours is adequate for the
purpose of the
appeal or review is for the court hearing same to decide, after
listening to argument in the event of dispute as
to accuracy or
completeness.’
[6]
[19] Although the SALGBC is responsible for the overall preservation
of the proceedings, it is the arbitrator who is in charge
of the
proceedings and the recording. He/she is very important in the
reconstruction process. It is therefore of utmost importance
that the
arbitrator should be made aware of the problem and for him to make
suggestions as to how the situation can be remedied,
if it can.
[20]
In
Papane v Van Aarde N.O. and
Others,
[7]
the majority decided to deal with the merits of the matter although
the record was incomplete. The majority considered the fact
that no
objection was raised in the court
a quo
in respect of the record. The record was served on all the parties
without objection. The respondent did not raise any objection,
in its
answering affidavit, or before the court
a
quo
about the incomplete record. In
casu,
however objection was raised in the answering affidavit, before the
court
a quo
and before us. The record was not served on the Commissioner.
Zondo JP (as he then was), in the minority, was of the view
that the
Commissioner whose award was sought to be reviewed and set aside
ought to be given an opportunity to indicate whether
he objected to
the application to set aside his award because of an incomplete
record. I agree. The Commissioner is indeed an interested
party and
his/her view should be solicited and considered. The record in this
matter was not served on the Commissioner, at any
stage.
[21] It seems to me that the first enquiry is whether the missing
part of the record is material. Materiality would be decided
after
considering,
inter alia
, the grounds of review, the nature of
the missing evidence and the attitude of the arbitrator and the
parties. The second question
is whether the applicant took all
reasonable steps to get the missing part or to reconstruct the
record. When considering this
question, the court would
inter alia
consider the chances of retrieval or reconstruction and the steps
taken by the applicant. When the question whether to dismiss,
postpone or remove the review application is considered the court
would have regard to the right to review and any prejudice to
the
parties.
[22] There is a direct link between the record, the standard of
review and the grounds of review. Each case will therefore depend
on
its own facts and circumstances. There can be no one size fits all
approach. A court may not set aside a finding of fact by
a
Commissioner unless there is no evidence to support it or, if in
light of all the evidence, the finding is otherwise unreasonable.
The
unreasonableness of the factual finding can only be determined by
examining the record in relation to the factual findings
made by the
Commissioner. If the grounds of review are patent from the imperfect
record there would not be a need for a full record.
[23] The court
a quo
found that the missing evidence is
material. This conclusion was correctly reached after considering all
the evidence that was
before the court
a quo
as opposed to the
evidence that was supposed to be before it. The arbitration award is
of scant assistance.
[24] The grounds of review are
inter alia
that the factual
findings of the Commissioner did not correspond with the evidence and
documents placed before the Commissioner,
and that he did not apply
his mind properly and rationally to the fact and the law.
[25] The court should ideally see all the material that was before
the decision-maker so that it can fully and fairly deal with
the
grounds of review especially when the grounds of review are dependant
on the factual findings of the Commissioner. It goes
without saying
that there can, in some cases, be no full and fair review if all the
evidence is not before the court. In this matter,
two witnesses’
testimonies were not available. One witness’ re-examination and
the employee’s re-examination
were also not transcribed.
Although a lot of documents were placed before the Commissioner,
these documents are of no assistance
because their status is
uncertain. The appellant alleges that they were admitted whilst the
third respondent points out - correctly
based on the pre-arbitration
minute – that the agreement was just that they are what they
purport to be. Most of the documents
were not proven. The documents
are also not helpful without the testimony of the witnesses who
testified with regard thereto. It
would have been very difficult, if
not impossible, for the court
a quo
to determine whether a
reasonable decision-maker could have reached the conclusion that the
Commissioner reached. The missing parts
were material.
[26] The appellant served and filed an incomplete record. It was
oblivious of the missing parts when it served same. It is the
third
respondent that focussed its attention on the incomplete record. It
is clear that, even when the record was filed, it was
not properly
checked by the appellant’s attorneys in order to see whether it
was complete. This displays a lack of diligence
in the manner in
which this case was handled.
[27] When the shortcoming was pointed out in the answering affidavit,
the appellant’s attorney did not grasp the magnitude
of the
problem because they clearly thought that it was only the testimonies
of Modise and Grebe that ought to be reconstructed.
[28] When the third respondent’s attorneys offered to
participate in the reconstruction exercise and suggested a few dates
on which it could be done; they were kept in abeyance for
approximately six months. They were then told that it would be
impossible
to reconstruct the record. The appellant did not endeavour
to contact the Commissioner in order to ascertain whether he indeed
had no notes or recollection of the evidence. The appellant should
have served the incomplete record on the Commissioner and scheduled
a
meeting with him and the opposition in order to see whether the
record could be reconstructed. They did not even obtain an affidavit
from the SALGBC as to the efforts it made to get the missing part of
the record. In fact, no affidavit, except, the replying affidavit,
has been filed in connection with the missing parts of the record.
[29] I agree with the court
a quo
that the appellant did not
take all reasonable steps to locate the missing parts of the record
or to reconstruct it. The appellant
challenged the factual findings
of the Commissioner; as such, it ought to have been aware that the
devil would be in the detail
in this review. Those details could only
be in the complete record containing the testimonies of all
witnesses. The significant
parts of this review are definitely in the
missing part.
[30] The court
a quo
exercised its discretion when it decided
to dismiss the review application. This discretion was exercised
judiciously and upon
correct principle after considering all the
facts. It considered the fact that the appellant did not take all
reasonable steps
to locate and/or reconstruct the record whilst it
had ample time to do so. The employee’s dismissal occurred four
years prior
to the hearing of the review application.
[31] I am mindful of the financial implication of the order of the
court
a quo
; however, the appellant only has itself to blame.
Its conduct displayed a lack of urgency and went against the objects
of the Act,
namely the fair and speedy resolution of labour disputes.
Its right to review is outweighed by all the factors mentioned above.
[32] There is no reason in law or fairness why the costs should not
follow the result.
[33] For all of these reasons the appeal is dismissed with costs.
C. J. MUSI JA
Davis
JA and Murphy AJA agreed with C J Musi JA.
APPEARANCES
FOR THE APPELLANT: Adv. Van der Riet SC
Instructed by Cheadle Thompson & Hatsom
FOR THE RESPONDENT: Mr Orton
Instructed by Snyman Attorneys
[1]
See Section 34 of the Constitution of SA 1996.
[2]
Toyota SA Motors (Pty) Ltd v CCMA and Others
(2016) 37 ILJ 313 (CC) at para 43
[3]
Unreported judgment of the LAC, case number JA36/2003.
[4]
At para 31.
[5]
(2003) 24 ILJ 931 (LAC).
[6]
At para 17.
[7]
(2007) 28 ILJ 2561 (LAC).