About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2016
>>
[2016] ZALAC 65
|
|
Bafokeng Rasimone Platinum Mine (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA85/2015) [2016] ZALAC 65 (22 September 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA 85/2015
In the
matter between:
BAFOKENG
RASIMONE PLATINUM MINE (PTY) LTD
Appellant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
MASHOODA PATEL NO
Second
Respondent
RYK
BOTHA
Third
Respondent
Heard:
19 August 2016
Delivered:
22 September 2016
Summary:
Review of arbitration award – Labour Court finding that the
failure by the commissioner to
allow the employer to call an
additional witness amounted to a reviewable irregularity –
Labour Court setting aside the arbitration
award on that basis and
remitted the matter back to the CCMA but limited the hearing to the
witness that was not called. Court
finding that remitting the matter
for a part-heard unfair as new commissioner not having the
opportunity to hear other evidence.
Court also rejecting employer’s
contention on the refusal by the Labour Court to admit further
affidavit and costs granted
against it. Appeal partly upheld –
Labour Court’s order substituted with an order that the matter
be heard
de novo
in accordance with the
Blue Financial
Services
Judgment.
Coram:
Tlaletsi DJP, Ndlovu JA
et
Coppin JA
JUDGMENT
COPPIN
JA
[1] This
is an appeal against the judgment of the Labour Court (Lagrange J),
inter alia,
reviewing and setting aside an arbitration award
of the second respondent (the commissioner) in terms of which third
respondent
(“
the employee
”) was reinstated in his
employment with the appellant. The Labour Court also referred the
matter back to the first respondent,
the Commission for Conciliation,
Mediation and Arbitration (the CCMA) for it to be considered afresh
by a commissioner, other than
the second respondent, after hearing
such further evidence, which the employee and employer may wish to
adduce.
[2] The
appeal essentially concerns two issues raised by the appellant.
Firstly, whether the court
a quo
erred by not referring the
matter back for a hearing
de novo
, but merely referring it
back for fresh consideration, “on the basis of the record in
the first arbitration hearing.”
Secondly, whether the court
a
quo
erred in refusing to allow the appellant to file an
additional affidavit in the review proceedings before it and in
ordering the
appellant to bear the costs of the application for the
admission of the additional affidavit, including ordering such costs
to
be on an attorney and own client scale.
[3]
Before dealing with the issues in detail, I propose to give a brief
background. The facts in that regard are largely common
cause or not
disputed.
[4] The
employee was charged with bringing his employer, the appellant, into
disrepute by using its resources in an improper manner.
The charges
arose from the employee’s unauthorised use of the company’s
e-mail facility, which included its name, logo
and address, to
transmit sexually explicit, or pornographic, messages to a third
person who was not employed by the appellant.
[5]
Following a disciplinary process, the employee was dismissed by the
appellant. He referred the matter to the CCMA for conciliation.
When
the conciliation process failed, the dispute was arbitrated before
the commissioner. In her award, the commissioner found
that the
employee’s dismissal was procedurally and substantively unfair
and reinstated him retrospectively in his employment
with the
appellant.
[6] The
appellant brought an application in the Labour Court to review the
award of the commissioner. After delivering its review
application,
including its founding papers, the appellant filed supplementary
papers in December 2012 following the delivery of
the record of the
arbitration proceedings in about October 2012. The employee, who
opposed the review, filed answering papers and
the appellant
delivered its replying affidavit on or about 14 February 2013.
However, about five months later, on 12 July 2013,
the appellant
delivered an “
additional
” affidavit in which it
raised further grounds of review and made further submissions in
support of its application for review.
[7] In
its application for review, the appellant submitted,
inter alia,
that the commissioner had been biased in favour of the employee; that
she was a friend of the employee’s legal representative,
Mr
Parsons; that she had failed to disclose that fact when she had been
under a duty to do so; and that such failure was material
and,
therefore, vitiated the entire arbitration proceedings.
[8] The
appellant also contended that the commissioner had committed a
material irregularity by refusing to grant the appellant
a
postponement to enable it to call a material witness, Mr A Mbule. The
witness was to give evidence on the issue of consistency
in the
disciplinary process of the employee and concerning the alleged
breakdown of the employment relationship between the appellant
and
the employee.
[9] Other
grounds raised related to the alleged refusal by the commissioner to
allow the appellant legal representation at the arbitration.
I need
not say anything more on this ground. It was weak and correctly
dismissed by the court
a quo
. It is not pursued by the
appellant any further.
[10] The
court
a quo
refused to admit the appellant’s additional
affidavit and, in essence, ordered the appellant to pay the
employee’s
costs of opposing the admission of that affidavit on
an attorney and own client scale.
[11]
As regards the merits of the review, the court
a
quo
made
short shrift of the appellant’s contentions of bias and
non-disclosure, concluding as follows in that regard:
‘
It
appears to me that the confirmatory affidavit of Botha’s
attorney of record was more than adequate in dealing with Mr Khonous’
vague and unsupported allegation.
[1]
It also would be somewhat surprising if professionals in the labour
law community of a town the size of Rustenburg were not reasonably
familiar or even well-acquainted with each other. But without more
such an association does not warrant a justifiable perception
of bias
requiring disclosure.’
[12] The
court
a quo
however found, regarding the refusal of the
postponement to allow the appellant to call Mr Mbule that the
commissioner had not
acted rationally and reasonably and,
consequently, that the award had to be set aside. The court
a quo
stated the following in that regard:
‘
In
the circumstances, despite doubts about the applicant’s
ultimate prospects and despite the time which has elapsed the award
must be set aside to permit the additional evidence of Mbule and any
evidence in rebuttal thereof to be entertained.’
[13] The
court
a quo
went on to make an order setting aside the
commissioner’s award; directing that within 30 days of receipt
of the judgment,
the CCMA must set the matter down before a different
commissioner to consider it afresh “on the basis of the record
in the
first arbitration hearing”, including the e-mails B1, B2
and B3, referred to in the typed transcript of the arbitration
hearing,
but which were omitted from the record before the court
a
quo,
and after having heard the evidence of Mr Mbule and any
evidence the employee may want to adduce in rebuttal thereof. The
court
a quo
also ordered that the additional affidavit was not
admitted and that each party should pay their own costs of the
review, save
that the appellant had to pay the employee’s costs
for opposing the application to admit the additional affidavit on an
attorney
and own client scale.
[14] The
court
a quo
dismissed the appellant’s application for
leave to appeal against part of its order. However, leave to do so
was granted
on petition to this Court on 26 November 2015.
[15]
The appellant is pursuing the appeal in respect of two points. It
contends that the court
a
quo
ought to have referred the matter back to the CCMA for hearing
de
novo
before a different commissioner, because (so it contends) the failure
of the commissioner to disclose her relationship with the
employee’s
legal representative was material and had the effect of it vitiating
the entire arbitration proceedings before
her. In this regard, the
appellant relied extensively on this Court’s decision in
Sasol
Infrachem v Sefafe Daniel and Others
(“
Sasol
Infrachem
”)
[2]
and the Supreme Court of Appeal’s decision in
Ndimeni
v Meeg Bank Ltd
(Bank
of Transkei)
(“
Ndimeni
”).
[3]
[16] The
appellant also contends, in essence, that the court
a quo
exercised its discretion wrongly in refusing to admit the appellant’s
additional affidavit in respect of the review proceedings
before it
and, in particular, contends that the court
a quo
ought not to
have penalised the appellant with costs and particularly, with
punitive costs and contends that the court
a quo
should merely
have regarded the additional affidavit as “
pro non scripto
”,
because none of the respondents filed any affidavits to oppose the
admission of the additional affidavit and the argument
for its
admission was not raised separately from the contentions on the
merits.
[18] I
shall now consider these issues in detail starting with the issue of
the admission of additional affidavits and the costs
order made in
respect thereof.
Admission
of the additional affidavit
[19]
Before us, the appellant’s argument was mainly directed at the
costs order made by the court
a quo
in relation to the order
excluding the additional affidavit.
[20] In
my view, the court
a quo
cannot be faulted in its reasoning
and conclusion that the additional affidavit had to be excluded. The
rules, including Rule 7A
of the Labour Court, do not provide for such
an additional affidavit to be delivered by an applicant for review
and the leave of
the court must be sought in that regard. It is
recognised that the court will only allow additional affidavits in
exceptional circumstances
and that the applicant, who asks for the
admission of such affidavits, is seeking an indulgence.
[21] It
is essentially a question of fairness to both sides. The following
factors are material considerations, namely, the reason
why the
evidence or matter contained in the additional affidavit was not
produced timeously or earlier in the founding and supplementary
affidavits; the relevance or materiality of the evidence contained in
the additional affidavit; the nature of the prejudice that
may result
if the additional affidavit was allowed and whether the prejudice
could be dealt with by an appropriate order of costs;
the stage in
the proceedings when the additional affidavit was sought to be
admitted and the importance of finality of proceedings.
This is not a
closed list of factors.
[22] The
court
a quo
appropriately considered the different factors and
appropriately concluded that the additional affidavit should not be
admitted.
The appellant did not bring a prior, substantive
application for its admission, but sought to move for its admission
when the review
matter was before the court for argument. No reasons
were furnished why the evidence, or matter, or grounds contained in
the additional
affidavit, were not and could not be included in the
initial founding affidavit or in the appellant’s supplementary
affidavit.
Pure remissness is not an excuse.
[23] This
Court can only interfere with the costs order made by the court
a
quo
if it is satisfied that the court
a quo
misdirected
itself in that regard, or otherwise failed to exercise its discretion
in a proper manner. I cannot find any basis to
come to that
conclusion in the present instance. It would be manifestly unfair to
make an order in respect of the admission of
the additional
affidavit, which would result in the other party bearing some of the
costs in opposing its admission. A party and
party costs order would
have had such an effect. The order of the court
a quo
was
clearly intended to avoid such an inequitable result.
[24] In
the broader scheme of things, the effect of the costs order, made in
respect of the admission of the additional affidavit,
is minimal.
There was no substantial application for admission of that affidavit
and there were no opposing papers filed. There
was argument and
opposing argument on the issue but it was not dealt with in a
separate hearing from the merits. In my view, this
“
ground
”
relied upon by the appellant ought to be dismissed.
The
referral back to the CCMA
[25]
As regards the referral for reconsideration, neither the court
a
quo
,
nor the parties, referred, or took into account the decision of this
Court in
Blue
Financial Services Ltd v Commission for Conciliation, Mediation and
Arbitration and Others (“Blue Financial Services”).
[4]
There
this Court held that the failure to allow the employer an opportunity
to call a further “
material
”
witness was unfair and irregular to the extent that it did not only
justify the setting aside of the award but also a referral
back to
the CCMA for a hearing
de
novo
before a different commissioner. At the hearing before us, we drew
the parties’ attention to that decision.
[26] The
point of bias and non-disclosure was raised by the appellant in
support of its argument for a referral back to the CCMA
for a hearing
de novo
. In light of the decision in
Blue Financial
Services,
this point of non-disclosure is now academic and does
not have to be dealt with. I, nevertheless, add briefly that the
point is
bad and was rightly dismissed by the court
a quo
. The
appellant’s reliance on the decision in
Sasol Infrachem
was misplaced. That the commissioner did not disclose to the parties
that she was a friend or acquaintance of the employee’s
attorney, was not a material non-disclosure and does not result in
the vitiation of the entire arbitration proceedings.
[27] The
employee’s counsel tried to distinguish the
Blue Financial
Services
decision, but in my view unsuccessfully so. The basic
facts are the same. In the present matter, the court
a quo
, in
essence, as in
Blue Financial Services
, found that the
commissioner’s failure to allow the appellant to call a
material witness justified a setting aside of the
award and a
remittal of the matter back to the CCMA.
[28] To
refer the matter back as a part-heard matter, merely to be
reconsidered by a different commissioner after having heard the
evidence of the excluded witness and any evidence in rebuttal
thereof, is in my view not ideal and could possibly be unfair. A
new
commissioner would not have seen or heard the other witnesses whose
evidence he, or she, would nevertheless have to evaluate
and make
findings on. This is clearly not acceptable. On the other hand, a
referral back for a hearing
de novo
would be fair in all the
circumstances. The order of the court
a quo
thus requires
substitution with an order for a hearing
de novo
before a
different commissioner.
[29] The
appellant’s counsel contended that if that was the outcome, it
would have been substantially successful and entitled
to the costs of
the appeal. The employee’s counsel, on the other hand,
submitted that his client was entitled to costs. Taking
all
circumstances into account, the most appropriate order is that there
ought to be no costs in respect of the appeal.
[30] In
the result, the following order is made:
30.1
The appeal is partly upheld but no costs order is made in respect of
the appeal.
30.2
The order of the court
a quo
is set aside and is replaced with
the following order:
‘
1.
The
additional affidavit filed on 12 July 2013 by the applicant is
disallowed.
2.
The second respondent’s arbitration award dated 2 August 2012
under Case Number NWRB882/12
is reviewed and set aside.
3.
The matter is referred back to the Commission for Conciliation,
Mediation and Arbitration
for a hearing de novo before a different
Commissioner.
4.
No costs order is made in respect of the review, save that the
applicant must pay the third
respondent’s costs for opposing
the admission of the additional affidavit on the attorney and own
client scale.’
___________________
P Coppin
Judge
of the Labour Appeal Court
Tlaletsi
DJP and Ndlovu JA concur in the judgment of Coppin JA
APPEARANCES
FOR THE
APPELLANT:
P G Seleka SC
Instructed by Webber Wentzel Attorneys
FOR THE
THIRD RESPONDENT:
Mr C Goosen with him Mr Jacques Parsons
Instructed by Parsons Attorneys
[1]
Mr
Khonou stated in the founding papers “
I
have also since ascertained that the Commissioner and the employee’s
legal representative are friends. The Commissioner
failed to
disclose this relationship to me before or during the arbitration
proceedings
”.
[2]
(2015)
36 ILJ 655 (LAC).
[3]
2011
(1) SA 560 (SCA).
[4]
[2014]
10 BLLR 935
(LAC), especially para 31 at p 944.