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[2006] ZALCJHB 29
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Cell C (Pty) Ltd v Finger and Others (JR251/06) [2006] ZALCJHB 29 (28 March 2006)
IN THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 251/06
In
the matter between:
CELL
C (PTY) LTD
Applicant
and
GEORGE
FINGER
First
Respondent
THE
COMMISSIONER FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
M
S RAFEE N.O
Third
Respondent
JUDGMENT
REVELAS
J
[1]
The applicant instituted an urgent application to review and set
aside the decision of the third respondent, a commissioner
who had
recused himself from arbitration proceedings, following an objection
by the first respondent (who describes himself as
a black man) to the
race of the arbitrator who is indian. The applicant also sought an
order compelling the arbitrator to discharge
the duties under the
Labour Relations Act no 66 of 1995
, as amended (“the Act”),
and to arbitrate the dispute to its finality. The dispute was
referred to the second respondent
(“the CCMA”) by the
first respondent, against the applicant, and related to an alleged
unfair dismissal.
[2]
The basis of the first respondent’s racist objection was that
since the applicant’s attorney and counsel were also
indian,
and the arbitrator was “pre-appointed”, he (as a black
person) perceived the situation as “racially imbalanced”
against himself.
[3]
The third respondent clearly rejected any notion that there were
grounds for his recusal, but held:
“
Having
heard this application, I find that the affront to my dignity may
lead to the seeds of bias being planted. In the circumstances,
it
will be in the interest of both parties if the matter is heard before
another commissioner”.
After
he recused himself, the arbitrator made a punitive cost order against
the third respondent’s attorney, despite the fact
that he was
functus officio
.
[4]
The costs order is an indication of the arbitrators’ state of
mind. Understandably, he was angry. He also spoke of “preserving
his sanity” when he gave the reasons for his recusal. It may be
that he should have stood his ground and proceeded with the
matter.
The question I have to decide is whether I should set aside his
decision. The applicant says if I do, I must then consider
what
happens thereafter.
[5]
The applicant argued that in the event that I do set aside the
arbitrator’s decision to recuse himself, I could also refer
the
matter to a different commissioner to reconsider the application or
refer the matter to a different commissioner to arbitrate
the alleged
unfair dismissal dispute. The applicant also seeks a punitive costs
order against the first respondent, who has opposed
this matter.
[6]
I will first deal with the question of whether I can set aside the
arbitrator’s decision to recuse himself.
[7]
An objection to his or her race can never be a reason for a presiding
officer to recuse himself or herself. Apart from the fact
that the
objection itself is reprehensible, it would make litigation in a
multi-racial country such as ours impossible. It should
not be
tolerated. In
S v Collier
1995 (2) SACR 648
C
the appellant, a
black person, objected to the race of a white magistrate who presided
over his trial. He demanded to be tried by
a black magistrate. He
argued that the white magistrate’s refusal to recuse himself
contravened section 25(3) of the Constitution,
because the magistrate
and the complainants were white, and some of the charges against the
appellant had certain racial connotations
attached to them. Hlope J,
in the judgment, referred to Professor LG Baxter,
Administrative
Law,
at 566, where the learned author gives a commonly cited
example, namely, that the mere fact that a decision-maker is a member
of
the SPCA, does not necessarily disqualify him from adjudicating
upon a matter involving alleged cruelty to animals. By the same
token, Hlope J, stated the obvious principle:
“
the
mere fact that the presiding officer is white, does not necessarily
disqualify him from adjudicating upon a matter involving
a non-white
accused. The converse is equally true”.
[8]
The fact that I agree with the proposition that the arbitrator should
not have recused himself, does not mean that his decision
may be set
aside. According to our law, a decision by a presiding officer
not
to recuse himself is appealable (or reviewable, depending on the
nature of the case). However, the converse will seldom apply,
and
then only when the review relates to unterminated proceedings where
grave injustice might result or where justice might not
by other
means be attained (see:
Newell v Cronje
and Another
1985 (4) SA 692
(E)
and
Wahlhaus and Others v Additional
Magistrate, Johannesburg, and Another
1959 (3) SA 113
(A)
).
[9]
In the case of
S v Suliman
1969
(2) SA 385
A, the Appeal Court (as it then was), had to consider
whether a trial judge who had recused himself from a criminal trial,
committed
an irregularity warranting a finding that a failure of
justice had occurred as contemplated in section 364(1) of the former
Criminal
Procedure Act. The alleged prejudice which the appellant
said he had suffered lay therein that:
“
whether
such recusal has resulted in a failure of justice because His
Lordship
did
not afford the defence an opportunity of being heard as to the
expediency of his recusal (386 H, 388 E – F)”.
[10]
The learned judge observed in the same case (at 391E-F) that if a
judge
bona fide
recuses
himself, the court who sits in judgment of that decision, even if it
disagrees that recusation was necessary,
“
should
be very slow indeed to hold that such recusation constitutes an
irregularity”.
[11]
To force an arbitrator who has recused himself from a matter, to
continue with that same matter, particularly in a case such
as this,
where the arbitrator was provoked into recusing himself, would be
imprudent. I am in respectful agreement with the observations
of
Thompson JA in the
Suliman
case (
supra)
in
that regard. Apart from the fact that the arbitrator is
functus
officio
, the notion of ordering a
presiding officer who had resiled from a matter for very personal,
even though insufficient reasons,
to arbitrate or adjudicate the
matter, is highly undesirable. Not only would it be humiliating to
him or her, but it would also
defeat the ends of justice. At the
onset of the matter the arbitrator’s judgment, and a hearing
free of any influence, would
be compromised. In this particular
matter, it would be playing into the hands of the first respondent if
the case goes against
him. He would simply, and perhaps even
successfully, rely on the arbitrator’s bias, based on the fact
that the arbitrator
was reluctant to do the matter in the first
place, and has in fact alluded to his own bias.
[12]
I understand why the applicant, and more particularly, its legal team
who were also deeply insulted by the first respondent’s
comments, felt that steps should be taken and something should be
done about the first respondent’s conduct, but a review
application was not the appropriate route to follow.
[13]
If the first respondent persists with the approach he has adopted
(and he has indicated that he would), the best way to deal
with him,
would be to deprive him of a remedy, as was done in
Soller
v Soller
2001 (1) SA 570
(C).
In that
matter Thring J stressed that it is not
“
lightly
that a High Court will close its doors to a litigant”
and warned that a litigant who has
“
contemptuously
turned his back on these doors and has repeatedly treated with
contumely the Judges who sit within them must not
be surprised if,
when he attempts to re-enter the tribunal halls of justice to seek
relief, he finds the way barred to him until
he has purged his
contempt for the very tribunal from which he now seeks justice”
(at 573 E – F). In that matter, the
litigant in question had made defamatory comments in a letter, about
two of the
judges of the Cape Provincial Division. The letter was
addressed to the Registrar of that Court and to a judge of that
division.
An order was then made that the litigant be barred from
filing or serving any papers in his matter until he filed an
affidavit
in which he retracted his remarks and apologised for them.
I see no reason why the third respondent should not be barred from
pursuing
his dismissal dispute in the CCMA under similar conditions
if he persists in his attitude.
[
14
]
To set aside the arbitrator’s
decision is clearly not appropriate. Even though the arbitrator
should not have recused himself,
he unfortunately has chosen to do
so. Having done so, he has become
functus
officio
. He may not reconsider
the question as to his recusal again. That is what would be before
him if I set his decision aside.
[15]
The applicant’s suggestion that another commissioner reconsider
the matter does not solve the problem either. Commissioners
do not
have the power to “reconsider”, each others’
decisions, particularly not decisions which are inherently
so
personal in nature. The matter has in any event been postponed, and
will be heard by a different arbitrator who has already
been
allocated to the matter by the CCMA. Apparently that arbitrator is
african. The first respondent has placed on record that
he would also
object to an african arbitrator. Hopefully that arbitrator would be
made of sterner stuff. He would also be in a
position to determine
the question of the costs occasioned by the previous post-ponement
which costs order the third respondent
was not entitled to make by
virtue of his recusal.
[16]
The applicant has not demonstrated a clear right, entitling it any
relief. Even though the applicant should not have instituted
this
review application, I decline to make any costs order, in view of the
first respondent’s conduct.
[17]
The application is dismissed.
_________________
E
Revelas
Judge
of the labour Court
Date
of hearing: 13 March 2006
Date
of judgment: 28 March 2006
On
behalf of the applicant
Adv
F.A. Boda
Instructed
by: KNRP Attorneys
On
behalf of the respondent
Adv
H.H. Cowley
Instructed
by: Corne Myles Attorneys