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[2007] ZALCCT 7
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Edgars Consolidated Stores (Pty) Ltd v Kalanda and Others (C726/2005) [2007] ZALCCT 7 (15 March 2007)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C726/2005
In the matter between:
EDGARS CONSOLIDATED
STORES
(PTY)
LTD
Applicant
and
JOAQUIM KILSON
KALANDA
First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION &
ARBITRATION Second
Respondent
DAVID MIAS
N.O.
Third
Respondent
J U D G M E N T
NEL
AJ:
[1] This is an
application to review and set aside the ruling of the third
respondent (“the Commissioner”) dated 8 September
2005
(“the rescission ruling”) in which the Commissioner
dismissed the applicant’s application for the rescission
of an
arbitration award made by the Commissioner in the absence of the
applicant.
[2] The application for
review herein has been filed eight days late. Reasons have been
provided for the late filing of this
review application. I have
had the opportunity to consider the prospects of success. I have
concluded that the rescission
award herein should be reviewed and set
aside. I am satisfied that the prejudice, which the applicant will
suffer, if the late
institution of the review application is not
condoned, far outweighs that of the first respondent (“Kalanda”).
I am
satisfied that on a conspectus of all the relevant
considerations, the late filing by the applicant of its application
to review
should be condoned.
[3] Following his
dismissal on grounds of misconduct, Kalanda referred a dispute to the
second respondent (“the CCMA”).
It would appear that
conciliation took place telephonically but the dispute was not
resolved. Thereafter the matter was set down
to be arbitrated before
the Commissioner on 30 June 2005. The applicant, however,
contends that it was unaware of the set-down
date and therefore did
not attend the arbitration hearing. The Commissioner proceeded
with the arbitration in the absence
of the applicant, and on 12 July
2005 issued an arbitration award in favor of Kalanda, finding that
his dismissal was substantively
unfair and ordering the applicant to
pay Kalanda the sum of R40 480 as compensation.
[4] The applicant
thereafter applied for a rescission of the award on the basis that it
had not been aware that the matter had been
set down for 30 June
2005. In his rescission ruling, the Commissioner rejected the
applicant’s evidence that it had
not been notified of the
set-down for arbitration. In reaching this conclusion, the
Commissioner apparently relied solely
on the telefax transmission
slip in the CCMA file.
[5] The applicant
contended that despite having been called upon to do so, the CCMA and
the Commissioner had failed to place the
contents of the CCMA file
before this Court. It was initially therefore argued by the
applicant that this situation led thereto
that this Court is not in a
position to assess the material which served as the basis for the
Commissioner’s finding that
the applicant had been properly
notified of the arbitration. It therefor contended that the
rescission ruling fell to be reviewed
and set aside on this basis
alone.
[6]The applicant, in its
supplementary affidavit, made reference to the fact that although the
CCMA had finally purported to lodge
the contents of its file with the
Registrar of this Court, several material documents remained missing,
including the proof that
notice of set-down for arbitration had been
transmitted to the applicant. The supplementary affidavit
having been filed on
the CCMA, having been alerted to the fact that
it was alleged that the contents of the CCMA file had not been fully
discovered,
the CCMA then proceeded to file further contents of its
file with the Registrar of this Court. It provided no
explanation
why these documents did not form part of the original
contents of the CCMA, or where they were ultimately located by the
CCMA.
[7] In any event, amongst
the documents now filed by the CCMA was a printout of an e-mail (“the
document”). On the face
of the document it appears as if it was
sent from “Faxination” to a certain Zahiera Price
(“Price”) on
4 May 2005. In the absence of any
explanation by the CCMA, the Commissioner or Price, it must be
presumed that this document
served as the sole proof before the
Commissioner that the arbitration notice of set-down had been
transmitted by the CCMA to the
applicant.
[8] It was argued that
the Commissioner’s reliance on the document amounted to a
fundamental misdirection as there was no
indication as to who the
author of the document was.
There also, so it was
argued, was no evidence from the author of the document to the effect
that the notice of set-down had been
transmitted to the applicant.
It was also submitted that there was nothing before this Court to
suggest that the Commissioner
had regard to the evidence of the
author of the document, or had any contact with the author
whatsoever. The document does
not in and by itself indicate
what it was that was purportedly transmitted by “Faxination”
to the fax number in question.
For example, the first page of
the document that had been transmitted was not reproduced, as is
often the case. The document
from “Faxination” is
directed to Price. It advises Price that:
“
Your fax with
subject: WE2948/05 sent to “011 4917846 addressed to “011
4917846” was successfully transmitted!”
There is, however, no
affidavit or statement from Price to the effect what it was that was
successfully transmitted. There
is also nothing before this
Court to suggest that the Commissioner had any contact with Price, or
confirmed with her that it was
the notice of set-down that had been
transmitted to the applicant by a third party, “Faxination”.
It may be so that
the CCMA uses computerized facsimile services. I am
speculating, as I have not been advised by the
CCMA or the Commissioner
what it means that not the CCMA itself, but a body called
“Faxination” sent the document.
The fact is that on
the face of the document, the reader cannot without more establish
what it is that was forwarded by the third
party “Faxination”.
[9] This document which
apparently played a pivotal role in the Commissioner’s decision
to dismiss the applicant’s rescission
application was not filed
by the CCMA, as I said, until after the applicant had filed its
supplementary affidavit. The applicant,
rightly so, complains
that it had not been afforded any opportunity to address the
Commissioner on this document, or to question
the author and/or
recipient thereof (Faxination) in a hearing before the Commissioner.
[10] As this appears to
be the only document received from the CCMA in support of the
contention by the Commissioner that notice
of set-down for the
arbitration had been sent by telefax to the applicant, I am of the
view that the Commissioner could not, on
the face of this document
alone, justifiably have come to the conclusion that it was the notice
of set-down of the arbitration
from the CCMA which had been
transmitted to the applicant. Therefor, I am of the view that
in the absence of other, and better
evidence, the Commissioner could
not justifiably determine that proper notice of set down had
beendispatched to the applicant.
It was argued before me that, as the
Commissioner apparently solely relied on this facsimile transmission
slip in the CCMA file
as proof that the applicant had been notified
of the set-down, he reached a finding that was not rational or
justifiable in relation
to the material before him. I concur
with this proposition.
[11] Commissioners ought
by now to appreciate the inherent danger of accepting facsimile
transmission slips as conclusive proof
that notification of legal
proceedings had taken place.
[12] It is clear that, in
terms of CCMA Rule 21, read with CCMA Rule 30(2), a Commissioner is
required to ensure that the party
who had failed to attend
proceedings had been properly notified of the date, time and venue of
the proceedings before making any
decision to proceed in the absence
of that party or to adjourn the proceedings to a later date.
[13] As was held in
Northern Province Local Government Association v CCMA & Others
[2001] 22 ILJ 1173 (LC), at 1186G-I, notice of an arbitration hearing
is not a process to be “served” on the parties.
Accordingly the Court found at 1186I that:
“…
the
presumptions inherent in the statutory definition of “serve”
can have no bearing on
the weight which the second respondent (the Commissioner) ought to
have given to the evidence of the (facsimile)
transmission slip”.
The Court continued at
1187D:
“
Axiomatically, in
deciding whether or not a fax transmission was received, proof that
the fax was indeed sent creates a probability
in favor of receipt,
but does not logically constitute conclusive evidence of such
receipt”.
[14] Similarly, in
Halcyon Hotels (Pty) Ltd t/a Baraza v CCMA &
Others
[2001] 8 BLLR 911
(LC) at 914C-E, the Court, faced with
similar facts to the matter under consideration herein, held that:
“…
A telefax
transmission slip or registered mail slip is only
prima facie
proof that a document has come to the knowledge of the party on whom
it has been served. In any event, it should be noted
that there
is a clear distinction between service and notification.
Service is defined in terms of Rules 1 and 3 of the Rules
regulating
CCMA proceedings (now mirrored in Rules 5 and 41) to be limited to
parties to the dispute serving documents on each
other. This
clearly excludes notification by the CCMA. That much is also
clear from Rule 23 [now Rule 30(2)] in terms
of the latter and based
on general principle, the second respondent (the Commissioner) should
have satisfied himself that the parties
had been properly notified”.
The Court concluded at
914G-H:
“
The second
respondent (the Commissioner) placed undue emphasis on the technical
definition of service and the fact that the transmission
slip shows a
successful transmission. This is in no way conclusive proof that
there was proper notification and due regard should
have been had to
the facts that the applicant placed before him. The same
argument holds true for the registered mail.
Applicant stated
under oath that it never received it. There was no evidence to
the contrary. I am satisfied that the
arbitration award was
erroneously made in the absence of the applicant and thus falls
squarely within section 144(a) of the Act”.
[15] In the matter under
consideration, the Commissioner likewise accepted the facsimile
transmission slip as proof of service.
The document in and by itself,
and on the face of it, certainly does not provide conclusive proof
that the applicant had been notified
of the arbitration set-down. The
Commissioner, at the time of deciding to proceed with the arbitration
in the absence of that party,
was in my view not justified in
assuming that he may do so on the documents or evidence before him.
Particularly as the applicant’s
allegation that it had not
received this notice of set-down stood uncontested, I believe that
the Commissioner, in addition to
ignoring this uncontroverted fact,
in the rescission application again relied on the transmission slip
as conclusive proof that
the applicant had been notified of the
arbitration set-down. This amounts to a reviewable misdirection. I
believe the Commissioner’s
approach in the rescission award,
and his conclusions arrived at, are not justifiable having regard to
the reasons given therefore
and the material which was before the
Commissioner.
[16]
It would also appear as if the Commissioner, in reaching his
conclusion, had regard to a number of facts appearing from the
CCMA
file, and from which the Commissioner drew adverse inferences.
He in his rescission award refers to the fact that the
applicant had
not in the course of the telephonic conciliation hearing objected to
the use of the fax number in question.
The applicant contends,
correctly so I believe that it was not afforded an opportunity to
present its case on this point to the
Commissioner or to address any
concerns the Commissioner might have had in this regard.
[17]
The applicant further contended that it appears from the answering
affidavit of Kalanda that he in fact filed opposing papers
in the
rescission application. These papers were not properly served on the
applicant and the applicant contended that it had no
opportunity to
respond thereto.
[18]
Clearly implicit in the requirement of a fair hearing is the need for
full disclosure of material information to the
affected party, which
in turn of course requires that the person affected by impending
administrative action be “put in possession
of such information
as will render his right to make representations a real, and not an
illusory one”. (See
Heatherdale
Farms (Pty) Ltd v Deputy Minister of Agriculture
1980(3) SA 476 (T) 486G)
[19] In similar vein it
was held in
Yeun v Minister of Home Affairs
1998(1) SA 958 (C)
at 965B-C that:
“
In
this connection, it must be remembered that the right to a hearing
also implies the right to be informed of facts and information
detrimental to the interests of a private individual. It is not
necessary that this information be given in the exact form in which
it was received, but essential facts should be divulged to the
interested person to enable him to reply”.
[20] I
am of the view that the Commissioner having taken material into
account to the detriment of the applicant without having
afforded it
any opportunity to state its case on these aspects did amount to a
violation of the
audi alteram partem
principle and rendered the proceedings irregular from this point of
view as well.
[21]
For all these reasons I am satisfied that the rescission ruling falls
to be reviewed and set aside.
I am satisfied that the
arbitration award was erroneously made in the absence of the
applicant.
[21]
The matter was opposed. I am of the view that there are no reasons
why the costs should not follow the result. The following
order is
made herein:
1.
The late filing of the review application
is condoned.
2. The rescission ruling
of the third respondent under case number WE2948/05 dated 8 September
2005 is reviewed and set aside.
3. The
aforesaid rescission ruling is replaced with the following ruling:
“
In
the premises the arbitration award under case number WE2948/05 dated
12 July 2005 is rescinded”.
4.
The first respondent is directed to
re-enrol case number WE2948/05 for arbitration before a Commissioner
other than the third respondent.
5.
The first respondent is ordered to pay the
applicant’s costs of suit.
_________________
Deon
Nel
Acting
Judge of the Labour Court
Date
of Hearing
: 22 November 2006
Date
of Judgement
: 15 March 2007
Appearances
:
For
the Applicant
: Advocate G A Leslie.
Instructed
by Deneys Reitz Attorneys.
For
the Respondent:
Mr J K
Kalanda (in person)