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[2007] ZALCJHB 18
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Potchefstroom City Council v Commission for Conciliation Mediation And Arbitration and Others (JR1069/03) [2007] ZALCJHB 18 (20 February 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO : JR1069/03
In
the matter between:
POTCHEFSTROOM
CITY
COUNCIL APPLICANT
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION FIRST
RESPONDENT
T
MAUMAKWA N O
SECOND
RESPONDENT
R J
WILLIAMS THIRD
RESPONDENT
J U D G E M E N T
LEEUW AJ
:
Introduction:
[1]
The Applicant has approached this Court seeking an order Reviewing
and setting aside the “Rescission Ruling” by
the Second
Respondent (“the Commissioner”). The Commissioner
refused to grant the application brought by the
Applicant, wherein
Applicant seeked an order to rescind a default Arbitration Award
granted in the absence of the Applicant.
[2]
The Third Respondent (Williams), who is an employee of Applicant,
referred a dispute to the first Respondent (CCMA) alleging
that the
Applicant committed an Unfair Labour Practice by promoting one Fanie
Sefako, also an employee of the Applicant, to a post
of
Superintendent instead of him (Williams), who was also qualified to
be appointed to that post.
[3]
The following award was made in favour of Williams by the Arbitrator,
Prakash Roopa:
“
6.1
I direct that the respondent is to pay the applicant the remuneration
and benefits for the position
of superintendent he had applied for;
effective from the time Mr Sefako was appointed into such position.
6.2
This remuneration and benefits should be paid to him until he is
promoted to such position which should
have the effect of him
receiving such remuneration or benefits that exceed that as a I have
directed, or upon the rumination of
the contract of employment
between the parties, whichever occurs sooner.”
Rescission
Proceedings:
[4]
At the hearing of the Rescission Application the Applicant was
represented by Itumeleng Mosala (Mosala), who was then acting
as the
Human Resources Officer. A formal Application for Rescission in
terms of section 144 of the Labour Relations Act No
66 of 1995 (The
Labour Relations Act) was
served on Williams on 24 February 2003 and
filed with the CCMA. There is nothing in the file to indicate
that Williams opposed
the application save for a handwritten letter
dated 11 March 2003 and addressed to the Applicant and the CCMA,
wherein he made
allegations disputing certain facts in the
Applicant’s affidavit and himself stating facts which tend to
prove that Applicant
was notified about the Arbitration hearing.
[5]
Both parties to the rescission proceedings appeared on their own.
The Commissioner conducted an informal enquiry pertaining
to whether
or not the Applicant was properly notified to attend the Arbitration
proceedings.
[6]
Despite the fact that Williams had not filed opposing papers, the
Commissioner allowed both parties to present their side of
the
story. The Commissioner allowed them to cross-examine each
other, despite the fact that their evidence was not given
under oath.
[7]
He thereafter summarized the two versions, and analysed same under
the heading “
Analysis of Evidence and Arguments.”
Having made reference to
section 144
of the
Labour
Relations Act, the
Commissioner came to a finding that the Applicant
was properly notified about the Arbitration hearing and consequently
refused
to rescind the Arbitration Award.
Were
the grounds for rescission properly considered by the Commissioner?
[8]
The Commissioner laid emphasis on whether or not the Applicant was
properly notified about the date of the Arbitration hearing,
which
service was effected by telefax.
[9]
The Commissioner did not call for any supporting affidavit or
corroboration with regard to the issue of service of the Application
for Arbitration as well as the notice of set down sent by the CCMA to
the Applicant. It is not clear, from the submissions
made
before him, whether the person who received the telefax notice, was
the appropriate person on whom service ought to have been
effected.
[10]
Rule 5 (1) of the CCMA Rules provide that:
“
1
A party must serve a document on the other parties –
(a)
by handing a copy of the document to –
(i)
the person concerned;
(ii)
a representative authorized in writing to accept service on behalf of
the person;
(iii)
a person who appears to be at least 16 years old and in charge of the
person’s place
of residence, business or place of employment
premises at the time;
(iv)
a person identified in subrule (2);
(b)
----------
(c)
by faxing or telefaxing a copy of the document to the
person’s
fax or telex number respectively, or a number chosen by that
person
to receive service;
(2)
A document may also be served
………………………
..
………………………
..
………………………
..
………………………
..
(e)
on a municipality, by serving a copy of the document on the municipal
manager or any person
acting on behalf of that person.”
[11]
The Commissioner did not consider this Rule especially Rule 5 (2) (e)
when he enquired as to whether the Applicant was properly
served with
the notices. Such enquiry was crucial for the purpose of
establishing whether Applicant’s failure to attend
was willful
or grossly negligent.
[12]
In addition, in an application for rescission, it behoved the
Commissioner to enquire whether the Applicant had a
bona
fide
defence on the merits. See
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476 –
477 referred by Counsel for the Third Respondent.
[13]
The parties hereto are lay persons and there was a duty on the
Commissioner to establish these grounds from Mosala, as these
were
necessary to determine an application of this nature.
[14]
Counsel for the Third Respondent referred to a number of decisions of
our Courts which held that “an order or judgement
is
erroneously granted” if there was an irregularity in the
proceedings: See
De Wet v Western Bank Ltd
1979 (2) SA 1031
(A) at 1038 D; and where, if at the time the order
or judgement was granted, there were facts which the presiding
judicial officer
was unaware of, which, if such facts were known to
him, would have precluded him or her from granting the judgement at
issue.
See
Nyingwa v Moolman N O
1993 (2) SA 501
(TK) at 510 G;
Athmaram v
Singh
1989 (3) SA 953
(1) at 956 D & 956 I;
Promedia Drukkers & Uitgawes (Edms) Bpk v
Kaimowitz
1996 (4) SA 411
(C) at 471 G-G.
[15]
There is no transcribed record of the Arbitration proceedings filed
with the papers. The Arbitrator states in the Arbitration
Award, that the Respondent (referring to the Applicant in this
matter) did not attend the hearing. He however failed to
endorse in the Arbitration Award as to how he satisfied himself that
the Applicant was properly notified about the hearing.
[16]
Furthermore, Williams’ dispute of an unfair labour practice was
that Sefako was promoted to a position which he (Williams)
was better
qualified to occupy. It was therefore necessary to join Sefako
as a party to the proceedings in view of the fact
that Sefako has a
substantial interest in the outcome of the proceedings.
[17]
Rule 26 of the CCMA Rules provides that:
“
A Commissioner may
make an order joining any person as a party in the proceedings if the
party to be joined has a substantial interest
in the subject matter
of the proceedings.”
Rule
3 (a) of the CCMA Rules provides that the Commissioner may make such
an order
mero motu
.
[18]
This issue was not raised by the Applicant in this matter. However,
in the interest of justice, I am entitled to raise this
issue in the
circumstances of this case. I am of the view that there was an
irregularity committed by the Arbitrator during
the arbitration
proceedings.
[19]
If I were to review and set aside the Commissioner’s rescission
ruling, it would under the circumstances be appropriate
to set aside
the Arbitrator’s Award as well. See
Cash
Paymaster services (Pty) Ltd v Mogwe
1999 (2)
ILJ 610.
[20]
Both parties hereto have filed Applications for Condonation. I
deem it unnecessary to delve with the merits thereof,
in view of the
issues raised in respect of the Arbitration Award itself, which
impact on the crux of the dispute between the parties
hereto. I
will not make a costs order against either of the parties hereto.
[21]
I accordingly make the following order:
(1)
The Second Respondent’s (Commissioner’s) ruling dated 7
May 2003, in which he dismissed
the Applicant’s application for
rescission of the Arbitration Award dated 26 January 2003 is hereby
reviewed and set aside;
(2)
The Default Arbitration Award granted by the Arbitrator Prakash Roopa
and dated 26 January 2003 under Case
No NW 5461-02 is rescinded;
(3)
The unfair dismissal dispute instituted by the Third Respondent is
referred back to the First Respondent
(CCMA) for Arbitration
de
novo
before a Commissioner other than the Second Respondent
or Prakash Roopa.
(4)
Both parties hereto succeed in their condonation applications.
(5)
Each party is ordered to pay its own costs.
_____________________
M
M LEEUW
ACTING
JUDGE OF THE LABOUR COURT
APPEARANCES:
COUNSEL
FOR THE APPLICANT :
ADV A T MYBURG
COUNSEL
FOR THE 1
ST
RESPONDENT:
COUNSEL
FOR THE 2
ND
RESPONDENT:
COUNSEL
FOR THE 3
RD
RESPONDENT: ADV AJR
BOOYSEN
ATTORNEYS
FOR THE APPLICANT
:
CHEADLE,
THOMSON – HAYSOM, MR DANIELS
P
O Box 30894, BRAAMFONTEIN, 2017
TEL:
011 – 403 2765 FAX: 011 – 403 1764
REF:
A BURROWPOT10001
ATTORNEYS
FOR THE 1
ST
RESPONDENT:
COMMISSION
FOR CONCILIATION, MEDIATION & ARBITRATION
KLERKSDORP
FAX: 018 – 462 4126
ATTORNEYS
FOR THE 2
ND
RESPONDENT:
COMMISSION
FOR CONCILIATION, MEDIATION & ARBITRATION
KLERKSDORP
FAX: 018 – 462 4126
ATTORNEYS
FOR THE 3
RD
RESPONDENT:
LEON KOTZE
80
DU PLOOY STREET, POTCHEFSTROOM
P
O BOX 6005, BAILIE PARK, 2526
TEL:
018 – 293 3484 FAX: 018 – 293 1886
REF:
WS/mr/W224
DATE
OF HEARING
:
03 NOVEMBER 2006
DATE
OF JUDGEMENT :
20 FEBRUARY 2007