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[2017] ZALAC 42
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Bloem Water Board v Nthako NO and Others (JA83/2016) [2017] ZALAC 42; (2017) 38 ILJ 2470 (LAC); [2017] 11 BLLR 1073 (LAC) (28 June 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 83/2016
In
the matter between:
BLOEM
WATER
BOARD
Appellant
and
ABRAHAM
NTHAKO
NO
First respondent
SHEIKS
HASH
Second respondent
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
Third respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Fourth respondent
Heard:
18 May 2017
Delivered:
28 June 2017
Summary:
The arbitrator arrived late for the hearing. The employer who had
been in attendance had already
left. The arbitrator concluded that
the employer was obliged to attend for the whole day and that the
employer had abandoned the
arbitration and proceeded to hear evidence
and issued an award. The employer did not seek to rescind the award
in terms of section
144 of the LRA but instead launched an
application to review the alleged misconduct of the arbitrator. Held
on appeal that the
although internal remedies should be exhausted and
piecemeal reviews are to be avoided, the Labour Court may intervene
in medias res
where the interests of justice require it
although this power is to be
used
sparingly and only in exceptional circumstances. As the interest of
justice required it and exceptional circumstances were
present the
appeal was upheld.
Coram:
Tlaletsi AJP, Landman JA, and Phatshoane AJA
Neutral
citation:
Bloem Water Board v Hash
(LAC JA 83/2016)
First
Draft JUDGMENT
LANDMAN
JA
[1]
Bloem Water Board, the appellant, appeals against a judgment of the
Labour Court (Phala AJ) dated 23 January 2012 that dismissed
an
application to condone the late delivery of an application to review
and set aside an award and remit the dispute for fresh
arbitration.
The award was issued by Mr A Nthako NO, an arbitrator (the
“arbitrator”), acting under the auspices of
the South
African Local Government Bargaining (the Council), the first and
fourth respondents respectively, in a dispute concerning
the alleged
unfair dismissal of Mr Sheiks Hash, the second respondent, assisted
by the union the South African Municipal Workers
Union, the third
respondent. The appeal is with leave of the court
a quo
.
The
background
[2]
The appellant dismissed the second respondent. After an unsuccessful
internal appeal, the second respondent referred a dispute
to the
Council.
[3]
On 14 December 2011, the appellant’s CEO complained in writing
to the Council that the arbitrator always arrived late
for
arbitrations or not at all, that he allowed the third respondent to
represent the second respondent even though he was not
an official of
the union, he does not apply his mind, he does not act fairly and he
should not arbitrate appellant’s matters.
The
arbitration
[4]
The Council scheduled an arbitration for hearing at 10:00 on 16
January 2012. The appellant’s representatives, the second
respondent and a union representative were in attendance. The
arbitrator was not there at the appointed time. He had caused a
previous arbitration to be postponed because of his unpunctuality.
After 45 minutes, the arbitrator had still not arrived nor had
he
communicated with the parties. The appellant’s representatives
then left the venue.
[5]
On 16 January 2012, the appellant’s CEO directed a complaint to
the fourth respondent that its representatives had waited
longer than
30 minutes for the arbitrator and there was no word from the Council
whether a commissioner would be in attendance.
The CEO also cautioned
that the arbitration should not proceed it its absence.
[6]
The second respondent and his representative did not leave. They
waited until the arbitrator arrived at some unspecified time.
The
arbitrator’s report reflected the time that the arbitration
commenced as 10:00. This is incorrect.
[7]
The arbitrator inquired, on record, whether the appellant’s
representative had been in attendance at the venue. On receiving
a
positive answer, he took the view that they had left prematurely as
the arbitration had been set down for the whole day. He heard
evidence and issued an award dated 23 January 2012. There is no
evidence of when and how the award was communicated to the appellant.
The appellant does not say when it was received but the employee
relations officer, the deponent to the founding affidavit, says:
‘
The fourth
respondent did not forward a copy of the award to the appellant. I
only became aware of the award in and during February
2012, through
our regional office via the internal electronic mail system. All the
documents received by the office go through
a process before they
reach me as a result I only receive documents a few days after the
office has acknowledged receipt thereof.’
[8]
As far as the merits of the dismissal are concerned, the appellant
sets this out with
a minimum of detail. The findings of the appeal
chairperson form part of the record and provide fuller details.
[9]
In his award, the arbitrator:
(a)
records that the
appellant’s representative had been present and left 30 minutes
after the scheduled starting time;
(b)
makes no mention of why
he arrived late;
(c)
finds that the
appellant abandoned the arbitration process;
(d)
sets out the third
respondent’s evidence;
(e)
points out that there
is no evidence for the appellant because it abandoned the arbitration
process;
(f)
finds that the
dismissal of the second respondent was procedurally and substantively
unfair; and
(g)
ordered the appellant
to reinstate the second respondent.
Evaluation
[10]
The first order of business is the second respondent’s point
that the appellant is precluded from utilising the review
process
because the appellant could have sought the rescission of the award
from the Council in terms of section 144 of the Labour
Relations Act
66 of 1995 (the LRA). Section 144 reads:
‘
Any
commissioner who has issued an arbitration award or ruling or any
other commissioner appointed by the director for that purpose,
may on
that commissioner's own accord or, on the application of any affected
party, vary or rescind an arbitration award or ruling
–
(a)
erroneously sought or erroneously made in the absence of any party
affected by that
award;
(b)…
(c)
granted as a result of a mistake common to the parties to the
proceedings.’
[11]
At the outset, it must be stated that the law does not encourage
litigation. Parties who have another appropriate remedy should
use
those remedies. Mr Boda SC, with him Ms Majiet who appeared for the
appellant, properly drew our attention to
Qibe
v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v
Commission for Conciliation and Arbitration and Others (Qibe
)
[1]
where
this Court held:
‘
The
contention thus advanced is that once an arbitration award is made
(whether by default or opposed) the provisions of s 147(2)(a)
or 3(a)
are no longer applicable. This contention, in my view, is
misconceived for two basic reasons: Firstly a default arbitration
award made by an arbitrator in the absence of one of the parties is
not final in effect, as it may be rescinded or revisited by
the
arbitrator who made the award. Therefore, although a default
arbitration award will have full effect until set aside, it is
not
final for purposes of a review, as contemplated in the LRA, because
the proceedings are not complete and the award may be revisited
or
rescinded by the arbitrator who made the default award. It follows
that only the decision of the arbitrator dismissing the rescission
application may be reviewed − and not the default arbitration
award itself – as it is not a final decision.’
[2]
[Footnote
omitted]
[12]
The facts raised in this appeal are entirely different from those
raised in the
Qibe
case. There are obvious disadvantages in attempting to review a
default award where the one party’s version has not been
adduced as outlined in
Magic
Company v Commission for Conciliation Mediation and Arbitration and
Others.
[3]
But in so far as the
Qibe
judgment may be taken to state that the Labour Court is not entitled
to review an award issued by the Commission for Conciliation
Mediation and Arbitration (CCMA) or the bargaining council that is
made in the absence of a party at all, I would respectfully
disagree.
The conventional approach of a court of review to decisions of a
court or administrative body, whether under the
Promotion of
Administrative Justice Act 3 of 2000
or otherwise, is that internal
remedies should be exhausted and piecemeal reviews are to be avoided.
But a court may intervene
in
medias res
where the interests of justice require it (ie
where
injustices would otherwise occur)
,
although it is to be
used
sparingly and only in exceptional circumstances. In
Wahlhaus
v Additional Magistrate, Johannesburg (Wahlhaus
)
[4]
the Court expressed the principle this way:
‘
While
a superior court having jurisdiction in review or appeal will be slow
to exercise any power, whether by mandamus or otherwise
upon
unterminated course of proceedings in a court below, it certainly has
the power to do so, and will do so in rare cases where
grave
injustice might otherwise result or where justice might not by other
means be attained….. In general, however, it
will hesitate to
intervene, especially having regard to the effect of such procedure
upon the continuity of the proceedings in
the court below, and to the
fact that redress by means of review or appeal will ordinarily be
available.’
[5]
[13]
Mr Grobler submitted with reference to
Sidumo
and Another v Rustenburg Platinum Mine Ltd and Others
[6]
that the award is an administrative act that the appellant wishes to
impugn and that
section 144
must be interpreted as an internal
mechanism which an aggrieved party can employ to overturn the award.
Mr Grobler submits, correctly,
that a court of review will not
readily intervene in incomplete proceedings. He contends therefore
that the review was brought
prematurely.
[14]
Section 144
of the LRA provides,
prima facie
, a remedy, and in
the ordinary course the Labour Court would encourage an aggrieved
party to exhaust other remedies even though
it has the obligation,
jurisdiction and power to oversee the dispute resolution bodies
created in terms of the LRA. But
section 144
does not, in my view,
exclude the Labour Court review powers. Subject to the consideration
in the
Wahlhaus
judgment,
the Labour Court
may review a decision
in medias
res
.
[15]
Even where the jurisdiction of a court is excluded or deferred, a
court would be slow to find this to be case.
[7]
Moreover,
section 144
is limited in its scope and does not allow for
the correction of every mistake or irregularity.
[8]
It may be especially difficult to show “absence” and meet
the requirements of
section 144
where the appellant’s
representative attended but left the venue before the arbitration
commenced.
[9]
What is more the
arbitrator found that the appellant had abandoned the arbitration.
[16]
Mr Grobler also submitted that whatever the arbitrator did or said
before the arbitration commenced was not misconduct in the
course of
arbitration. But this does not take adequate account that the purpose
of review is to consider material irregularities
whether they appear
on the record or not and at any time before, or during arbitration
proceedings and also, if they surface only
after arbitration
proceedings are terminated.
[17]
For the reasons expressed above and those relating to the conduct of
the arbitrator dealt with below, I am satisfied that it
is in the
interests of justice and that there are exceptional circumstances
present which made it permissible for the Labour Court
to entertain
the appellant’s review.
Condonation
in the court
a quo
[18]
The second issue is whether the court
a
quo
ought to have condoned the late filing of the application to review
the award. In making its decision, the court
a
quo
was exercising a true discretion. This Court’s powers to
interfere with the exercise of such a discretion are limited. This
Court may only interfere with the discretion, as it was said in
National
Coalition for Gay and Lesbian Equality v Minister of Home
Affairs
,
[10]
if the court
a
quo
:
‘…
had
not exercised its discretion judicially, or that it had been
influenced by wrong principles or a misdirection on the facts,
or
that it had reached a decision which in the result could not
reasonably have been made by a court properly directing itself
to all
the relevant facts and principles.’
[11]
[19]
The test whether to grant or refuse an application for condonation is
well known. It was expressed by this Court in
Grootboom
v National Prosecuting Authority and Another
,
[12]
this way:
‘
In
this Court the test for determining whether condonation should be
granted or refused is the interests of justice. If it is in
the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do so, it
will not be
granted. . .
The interests of
justice must be determined with reference to all relevant factors.
However, some of the factors may justifiably
be left out of
consideration in certain circumstances. For example, where the delay
is unacceptably excessive and there is no explanation
for the delay,
there may be no need to consider the prospects of success. If the
period of delay is short and there is an unsatisfactory
explanation
but there are reasonable prospects of success, condonation should be
granted. However, despite the presence of reasonable
prospects of
success, condonation may be refused where the delay is excessive, the
explanation is non-existent and granting condonation
would prejudice
the other party. As a general proposition the various factors are not
individually decisive but should all be taken
into account to arrive
at a conclusion as to what is in the interests of justice.’
[13]
[20]
The attitude of the second respondent to the delay is not decisive
but the fact that it did not object is relevant.
[21]
The court
a quo
examined the appellant’s explanation for
the delay and observed:
‘
[20]
Although the Applicant chose to bring an application for condonation,
the submissions are vague. It
is clear in our law that condonation
application must be made as soon as the Applicant becomes aware of
the need for it. It follows
that in a condonation application, the
Applicant is required to indicate the time when he or she became
aware of the need to make
an application for condonation. In case of
the late filing of the condonation application, the Applicant is
required to explain
such delay.
[21]
The Applicant made a convoluted submission instead of stating with
certainty the date on which it became aware of the arbitration
award.’
[22]
I agree that the explanation is not as thorough as it should have
been. However, there is no reason to doubt that the responsible
employee became aware of the award in February 2012. Even if we
assume that he became aware of the award on 1 February the
application
is slightly late and the condonation application was
filed within a day of the responsible employee consulting the
appellant’s
legal representatives. Because the delay was slight
the court
a quo
was obliged to consider the prospects of
success. Mr Grobler, who appeared for the second and third
respondents, conceded this.
The court
a quo
did not do so and
therefore this court is at large to decide this aspect. And it is to
this I turn.
Prospects
of success
[23]
In this case, the appellant must show that the arbitrator exercised
his discretion irregularly and should not have proceeded
with the
matter in its absence and that it has a
prima facie
defence to
the employee’s case. As to the former, the record of the
appellant’s internal disciplinary proceedings that
was followed
by an internal appeal demonstrate that the appellant has a defence to
the employee’s claim that he was unfairly
dismissed.
[24]
The arbitrator was confronted with the fact that the appellant’s
representative had arrived for the arbitration and had
waited for the
arbitrator without any information as to whether the arbitrator would
be arriving late or not at all. This situation
required the
arbitrator to exercise a discretion to stand the matter down and
attempt to secure the return of those absent or to
postpone the
arbitration or to proceed with the arbitration. In considering the
issue, the arbitrator should have been mindful
that his failure to
attend at the appointed hour (regardless of the reason for this) was
the proximate cause of the appellant’s
representative leaving
when they did.
[25]
Instead, the arbitrator put the blame on the appellant. He
investigated whether the appellant had abandoned the arbitration
ie
waived its rights and found that it had done so. The fact that the
appellant attended the arbitration and waited for the arbitrator
even
though he had not arrived timeously and also had previously arrived
late for an arbitration, does not signify that the appellant
abandoned the arbitration. In
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another,
[14]
the Court remarked that:
‘
Waiver is
first and foremost a matter of intention; the test to determine
intention to waive is objective, the alleged intention
being judged
by its outward manifestations adjudicated from the perspective of the
other party, as a reasonable person. Our Courts
take cognisance of
the fact that persons do not as a rule lightly abandon their rights.
Waiver is not presumed; it must be alleged
and proved; not only must
the acts allegedly constituting the waiver be shown to have occurred,
but it must also appear clearly
and unequivocally from those facts or
otherwise that there was an intention to waive. The onus is strictly
on the party asserting
waiver; it must be shown that the other party
with full knowledge of the right decided to abandon it, whether
expressly or by conduct
plainly inconsistent with the intention to
enforce it. Waiver is a question of fact and it is difficult to
establish.’
[15]
[26]
I am satisfied that there was no ground for the finding by the
arbitrator that the appellant had abandoned its right to participate
in the arbitration.
[27]
There is nothing to show that the arbitrator even considered
contacting the appellant that day. There is no merit in the
submission
that the parties were required to wait the whole day for
the arbitrator to arrive. It does seem that the arbitrator took into
account
that the second and third respondents were anxious to proceed
with the arbitration in the absence of the appellant and to avoid
a
postponement. They must have known that any award that they secured
would be challenged. This puts paid to their submission that
they are
innocent bystanders.
[28]
I am of the view that the arbitrator did not exercise his discretion
judicially and that he committed misconduct in the exercise
of his
powers. This would have justified the intervention of the Labour
Court in the proceedings. There is no cause to investigate
any other
aspect. The result is that the appellant had good prospects of
success so that the appellant’s application for
condonation
should have been granted. It follows that the appeal should be
upheld. The matter must be remitted to the Council for
hearing before
another arbitrator.
Costs
[29]
The usual approach to costs in labour matters, where the parties are
engaged in an ongoing relationship, should be applied.
I would not
make an order for costs in this Court or in the court
a quo
.
[30]
I make the following order:
1.
The appeal is upheld.
2.
The order of the Labour
Court is set aside and replaced with the following order:
‘
(1)
The late delivery of the application to review the award is condoned.
(2)
The award is reviewed and set aside and remitted to the fourth
respondent for arbitration de novo before an arbitrator other
than
the first respondent.
(3)
There is no order as to costs.’
3.
There is no order as to
costs of the appeal.
_______________
A
A Landman
Judge
of the Labour Appeal Court
Tlaletsi
AJP and Phatshoane AJA concur in the judgment of Landman JA
APPEARANCES:
FOR
THE APPELLANT:
Adv FA Boda SC with him
Adv S Majiet,
Instructed by Sunil Narian Attorneys
Inc.
FOR
SECOND AND THIRD
RESPONDENTS:
Adv S Grobler
Instructed by Kramer, Weihmann Joubert
Inc.
[1]
(2015) 36
ILJ 128 (LAC).
[2]
At para 10.
[3]
(C682/03)
[2005] ZALC 37
(19 January 2005).
[4]
1959
(3) SA 113 (A).
[5]
At 120A.
[6]
2008 (2) SA
24
(CC) at para 112.
[7]
See
Welkom
Village Management Board v Leteno
1958 (1) SA 490(A)
and
Ntenzani
v Magistrate, Sterkspruit
[1996] 2 All SA 148
(Tk) at 158e-i.
[8]
CF the
remarks of Jones AJA in
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape
[2003] 2 All SA 113
(SCA) at para 6 with regard to Rule 42 of the
Uniform Rules of the High Court.
[9]
Cf
De
Wet and Others v Western Bank Ltd
1979 (2) SA 1031 (A).
[10]
2000 (2) SA
1 (CC).
[11]
At para
[12]
(2013) 34
ILJ 282 (LAC).
[13]
At paras
50-51.
[14]
2009 (4) SA
529 (CC).
[15]
At para 81.