About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2006
>>
[2006] ZALCJHB 10
|
|
Municipal Employees Pension Fund and Another v Ntozakhe and Others (JR1109/05) [2006] ZALCJHB 10 (6 March 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
BRAAMFONTEIN
CASE
NO: JR1109/05
DATE:
2006.03.09
In
the matter between
MUNICIPAL
EMPLOYEES PENSION
FUND
First
Applicant
AKA
RETIREMENT SERVICES
(PTY)
LIMITED
Second
Applicant
and
PHILDA
MAGAZI
NTOZAKHE
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
MAGAZI
Third Respondent
J
U D G M E N T
REVELAS
J
[1]
In this matter, which I heard on Friday the 3rd, I now give judgment
as follows.
[2]
The applicant ("the Fund" or "Aka") seeks to
review an award made in favour of the third respondent ("Magazi")
in terms whereof she was to receive R651 034,20 as compensation
for an alleged unfair dismissal. Magazi was dismissed following
charges of alleged fraud, where she allegedly used employees of the
first applicant to do private work regarding her hair salon,
and that
labour was then invoiced for the account of the applicant as overtime
work.
[3]
Ten serious charges were brought against Magazi relating to
insubordination and making use of overtime work when she was not
supposed to. The ninth charge, at the behest of the arbitrator, was
withdrawn after the chairperson of the enquiry had heard evidence
in
this regard. It was also withdrawn at the chairperson’s behest.
[4]
Magazi's dismissal followed a disciplinary hearing where evidence of
the aforesaid counts of misconduct was led. Magazi had
been employed
as a senior operations manager, a position just below the chief
executive officer when she was dismissed. She referred
the disputes
about the unfair dismissal to the second respondent ("the
CCMA"), where the matter was eventually arbitrated
by the first
respondent, (“the arbitrator”), whose award is sought to
be set aside in this application.
[5]
The arbitration hearing took place on 7 April 2005. The first
applicant (whom I shall refer to as "the fund") was
cited
as the employer party in those proceedings as they were Magazi's
former employers against whom she had referred the matter
to the
CCMA. Advocate Tholoe was there to represent the Fund. Advocate
Lyseth represented Magazi. Advocate Tholoe also represented
the Fund
at the pre-arbitration meetings held prior to the proceedings. His
entitlement or authority to act on behalf of the first
respondent was
not placed in dispute at these proceedings, but all parties agreed
that they must provide proof of
locus
standi
on the date of argument of the
matter.
[6]
On the day of the hearing the applicant raised a point
in
limine
through Lyseth, that Tholoe had
no
locus standi
in that the company who appointed him was AKA Financial Services
(Pty) Limited (also the "second applicant") and that
company was not entitled to employ him since the employer party,
which is the Pension Fund, was a trust and Tholoe had to be appointed
in terms of a resolution of the trustees.
[7]
Tholoe produced a certified extract of the minutes of the first
applicant's management committee meeting held on 23 April 2004.
The
relevant paragraph in that document (paragraph 2.3) reflects that AKA
Financial Services, who is the second applicant, and
who had
appointed Tholoe, had been appointed as the first applicant's
administrator with effect from 1 March 2003.
[8]
In terms of an administration agreement entered into by the same two
parties, the fund (first applicant) delegated certain powers
and
functions to the administrator (AKA Financial Services (Pty) Ltd, or
AKA or the second applicant). The chairperson of the meeting,
Mr M I
Mhlangu signed the document on 6 April 2005, which is long after the
meeting had been held. In this regard the arbitrator
held as follows
(p.22 of the record):
"The
most glaring problem with this document is that it seeks to make
respective appointments. Secondly it was only filed on
6 April 2005
whereas the meeting was supposedly held about eleven months ago.
There should be a signed copy closer to that date.
On its own the
document does not say anything about the right of AKA to act on
behalf of the respondent. It was therefore my ruling
that indeed AKA
does not have
locus standi
,
and as a result Adv Tholoe cannot represent the fund. Effectively
there was no appearance for the respondent."
The
matter was then proceeded by default since the first applicant was
not permitted to participate in the proceedings, represented
by Adv
Tholoe.
[9]
The applicants seek to review these arbitration proceedings and have
the award set aside on the following basis:
1.
The matter was never conciliated because there was no certificate of
non-resolution issued.
2.
The arbitrator had committed a gross irregularity in the proceedings
by excluding the applicant
from the arbitration process, and
consequently ignoring the fundamental
audi
alteram partem
rule.
[10]
The first point is bad in law, since the process was not conducted by
first conciliating the dispute and then when that process
was
finalised, an arbitration hearing would follow if the conciliation
failed. The procedure followed in this case was the so-called
"Conarb", which is essentially a conciliation and
arbitration process consolidated into one process, the one evolving
into the other. By the very nature of conciliation-arbitration a
certificate of non-resolution would not be a prerequisite for
jurisdiction of the arbitrator who is conciliating the matter as
well.
[11]
I will now deal with the second point, and that is the authority
point. I believe counsel on behalf of the applicant was correct
when
he pointed out to me that there were five sources of authority which
was placed before the commissioner. The first was the
word of Adv
Tholoe. Secondly, the very instruction of the person
de
facto
and in law managing the business
of the employer, namely Mr Letjane, who is also the chief executive
officer of the fund, was present
and there present to instruct the
lawyers, who had been given the go ahead by the arbitrator to act,
and by this I mean that she
permitted legal representation.
[12]
The final minutes of the meeting were before the arbitrator. The fact
that it was signed long after the meeting was held, that
does not
render it null and void, because authority can be obtained
retrospectively. Then there was the administration agreement
and the
evidence of the management meeting which was held on 25 April 2004.
[13]
On the face of it, arbitrator decided the matter on submissions made,
and not by evidence under oath. Was there anything fraudulent
or
irregular about the minutes of the meeting or the authority sought to
be gained therefrom? The arbitrator still found that there
was a need
for a meeting or a minute from the trustees.
[14]
In my view, the minutes of the decision taken by the administrators
of the fund (first applicant) would surely suffice as authority.
There was no rational basis upon which the arbitrator could have
found that the advocate in question did not have the necessary
authority to act for, and on behalf of the first applicant, as he had
been duly appointed by an agent of the first applicant charged
with
administering the first applicant. There was also no basis upon which
the arbitrator should have, as at the date of the arbitration,
which
preceded the signing of the minutes by the chairman, ignored that
minute in the absence of the proof of fraud. In law there
is no
requirement, (and in this regard I refer to the Pension Funds Act),
that minutes have to be kept within a stipulated time
for pension
funds.
[15]
In my view, the arbitrator also committed an irregularity by not
taking evidence under oath. She simply went on the say-so
of the
various advocates at the time. This was also a serious matter. The
charges levelled against Magazi are very serious. I am
also concerned
that the arbitrator had found that all the charges were
“unsubstantiated”, when she heard only one side.
[16]
Her findings do not accord with the minutes of the disciplinary
hearing. They show a different picture. It is also of significance
that Magazi and Mr Letjane had an affair, which was subsequently
found out by Magazi's husband. Thereafter it would appear, on
Magazi's evidence at the disciplinary hearing, that practices which
would be regarded as fraudulent or unethical by most people
were
common practice at the fund, but when the affair was ended, and the
thieves fell out, then Magazi’s deeds became sins.
[17]
In such a serious case with two conflicting versions, it would seem
that an injustice could occur if the matter were to be
decided by
default, without hearing the parties merely because the absence of
authority for one party to appear, which was not
strictly speaking,
not even necessary.
[18]
I therefore believe that the ruling of the arbitrator with regard to
the authority should be set aside. This is definitely
not a matter
where I can substitute my own findings for that of the arbitrator,
and the matter should be remitted to the second
respondent (the CCMA)
to be arbitrated by a different arbitrator.
[19]
I make the following order:
1.
The award of the first respondent is hereby set aside.
2.
The dispute is remitted to the CCMA, to be arbitrated by a different
arbitrator.
3.
There is no order as to costs.
_________________________
Elna
Revelas
Judge
of the Labour Court
Date
of hearing: 3 March 2006
Date
of judgment: 6 March 2006
On
behalf of the applicant:
Adv
N.A Cassim
Instructed
by: KNRP Attorneys
On
behalf of the respondent:
Adv
Lyseth