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[2008] ZALCJHB 48
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Ngobeni v Redding SC (NO) and Another (JR398/07) [2008] ZALCJHB 48 (27 June 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
JR
398/07
In
the matter between:
DR
ENOCK
NGOBENI APPLICANT
and
A.I.S.
REDDING S.C. (N.O.)
FIRST
RESPONDENT
MSD
(PTY)
LTD SECOND
RESPONDENT
JUDGMENT
Introduction
1. This application seeks
to have a ruling dated 31 October 2006 issued by the first respondent
in a private arbitration in terms
of the Arbitration Act number 42 of
1965 reviewed and set aside. Further, the applicant seeks a
declarator that the arbitration
agreement concluded by the parties
herein does not preclude the applicant from raising a claim based
upon a contravention of section
3 of the Protected Disclosures Act
number 26 of 2000 (“the PDA”). There are further
alternative prayers. The application
was opposed by the second
respondent in whose favour the award was issued.
2. The arbitration ruling
was issued on 31 October 2006 but was received by the applicant on 1
November 2006. The review application
was filed on 21 February 2007,
which period was way beyond the reasonable period of 6 weeks within
which the review application
ought to have been delivered. The
applicant has filed a Condonation application. An address from the
bar by counsel for the second
respondent was the only opposition to
the condonation application.
Background
facts
3. The applicant was in
the employ of the second respondent (“the employer”) as a
Medical Manager. According to the
employer an offensive e-mail was
circulated to the employer’s worldwide employees on 21 October
2005. The applicant considered
the contents of the e-mail to be
false, completely unjustified and damaging to the reputation of its
Managing Director and its
Medical Director. The employer took the
position that the circulation was done by the applicant and its
Managing Director instructed
the applicant via a Mr A Botha, the IT
Manager, to recall the message. According to the employer, the
applicant refused to recall
the message but instead it was recalled
by Mr Botha. The employer avers that the applicant sent the same
message to its worldwide
employers from his private e-mail address.
The employer decided to charge the applicant with three acts of
misconduct described
as:
a) Sent
an offensive e-mail to MSD worldwide;
b)
Refusing to obey a lawful and reasonable instruction from the MD to
recall the message and,
c)
Improperly copied the second respondent’s global e-mail address
book from MSD’s system and sent
the same offensive e-mail from
his private e-mail address.
4. The applicant was
found to have committed the acts of misconduct with which he was
charged and he was dismissed on 6 November
2005. He lodged an
internal appeal. The parties agreed that the unfair dismissal dispute
of the applicant was to be referred to
arbitration in terms of the
Arbitration Act. They then concluded an arbitration agreement which
was reduced into writing. The first
respondent was then appointed. On
30 June 2006 the parties convened a pre-arbitration meeting and
produced minutes thereof. The
arbitration hearing commenced on 10
July 2006 and both parties were legally represented. The applicant
had been legally represented
at the pre-arbitration meeting as well.
5. At the arbitration,
the first respondent raised the issue whether or not it was competent
of him to award solatium constituting
the claim of the applicant. It
was agreed that the issue would be dealt with by the parties during
their arguments. The second
respondent was to begin with the calling
of its witness and first called and led the evidence of its MD. The
matter was adjourned
to allow cross-examination proceed on the next
date.
6. The proceedings were
resumed on 31 October 2006. Even before cross-examination started,
the applicant’s representative
indicated that the applicant
would rely on a breach of the provisions of the PDA. Representatives
of the parties, made their submissions
on the issue and the first
respondent made a ruling that his terms of reference did not include
the determination of an automatically
unfair dismissal arising out of
an alleged breach of the Protected Disclosure Act. It is that finding
which is the subject of the
present review application.
The
arbitration agreement
7. The written agreement
concluded by the parties as constituting the arbitration agreement
had various clauses which include clauses
2, 3, 5.1, 5.5, and
8.2 with the following provisions:-
“
Clause 2: Terms
of reference
The arbitrator shall
determine whether the dismissal of Ngobeni was substantively and/or
procedurally unfair.
Clause 3: Powers of
the arbitrator
In determining the issue
in paragraph 2 above the arbitrator shall have the same powers as if
he/she were a commissioner of the
CCMA.
…
Clause 5.1:
The parties undertake to
hold a pre-arbitration meeting on a date to be agreed between the
parties. Ngobeni undertakes to prepare
the pre-arbitration minute.
…
Clause 5.5:
The arbitrator has the
widest discretion and powers allowed by the law to ensure the just,
expeditious, economical and final determination
of the dispute raised
in the proceedings
…
Clause 8.1: Review
The arbitrator’s
award shall be rational and justifiable in relation to the reasons
given for the award and in relation to
the evidence presented to the
arbitrator.
Clause 8.2:
In the event that either
party wishes to review the arbitration award, it shall be entitled to
do so on the basis set out in section
145 of the LRA and the award
shall for all intents and purposes be treated as if it was an award
made by a Commissioner of the
CCMA.”
8. The pre-arbitration
minute outlines facts which are common cause but the applicant was to
revert to the second respondent on
facts that were in dispute. He did
so later. It was felt that disputed facts were too numerous to list.
The minute outlines the
issues to be decided and the precise relief
in the following terms:
Issues to be
decided
The parties agree that
the issues to be decided are whether the applicant’s dismissal
was procedurally and substantively fair.
The respondent asked the
applicant the grounds upon which he alleges that his dismissal was
substantively and procedurally unfair.
On substantive fairness the
applicant contends that the sanction was too harsh. As regards the
other grounds upon which the applicant
intends relying, he will
revert to the respondent.
The applicant contends
that his dismissal was substantively unfair on the following grounds:
a) The
applicant denies that he committed any misconduct.
b) In
the event that it is found that he did commit a misconduct (which is
denied) then it will be argued that
the sanction to dismiss was
unduly harsh in the circumstances.
Precise
Relief claimed
The applicant seeks
reinstatement with back pay limited to 2 months’ remuneration
plus costs. In addition the applicant claims
a solatium based on
contumelia.
The respondent asked the
amount of the solatium claimed. The applicant will revert to the
respondent in this regard.
The applicant reverted to
the respondent to inform the respondent that he would claim a
solatium in the amount of approximately
R1 million.
The chief findings
of the first respondent
Ø At no
stage prior to the conclusion of the agreement did either party
expressly contemplate that the issue to be
determined was a dispute
concerning an automatically unfair dismissal and the potential relief
of 24 months’ compensation.
Ø The
parties intended that he determined the sort of dispute which a CCMA
commissioner would ordinarily determine,
that is, an ordinary
dismissal dispute. His powers were limited to what a commissioner
could ordinarily award-that is reinstatement
or 12 months’
compensation. This view was fortified by two additional
considerations:-
·
The dispute, prior to the signature of the arbitration agreement, was
about an
ordinary dismissal. It was not an automatically dismissal
because of the breach of section 3 of the Protected Disclosure Act.
The
parties did not appear to have this last mentioned cause of
action in their contemplation.
·
One is allowed to have regard to the parties subsequent conduct as an
aid to
determining their earlier intention in concluding a contract.
Subsequent to the agreement, the parties attended the pre-arbitration
conference at which the relief sought by the applicant was
reinstatement and the ordinary measure of compensation, being twelve
months. No reference was made to automatically unfair dismissal and
24 months’ compensation.
Ø Parties
would not ordinarily clothe a CCMA commissioner with powers beyond
those set out in the LRA-although this
may be possible. One would
expect an express reference to the additional jurisdiction and powers
in respect of automatically unfair
dismissal to be included in the
arbitration agreement. The parties did not express that situation.
They appear to have contemplated
that the dispute concerned a
conventional unfair dismissal, not an automatically unfair one.
Ø The terms
of reference therefore do not include the determination of an
automatically unfair dismissal arising out
of an alleged breach of
the Protected Disclosure Act.
Grounds
for Review
9. The submission was
that the first respondent:-
(i) Failed to apply his
mind to paragraph 4 of the pre-arbitration agreement, to the
surrounding circumstances and to the subsequent
conduct of the
parties in determining his jurisdiction and what the parties had
intended;
(ii) Committed a material
misdirection by not hearing evidence when there was a factual dispute
before him on the ambit of his powers;
(iii) Misdirected himself
materially by failing to consider clause 5 of the pre-arbitration
minute with the claim of a solatium;
(iv) Misdirected himself
materially in taking into account what powers he had in order to
determine his jurisdiction. He took into
account an irrelevant
consideration, having already found that jurisdiction and powers were
separate concepts. He should have considered
that the arbitration
before him was under the Arbitration Act and not the Labour Relations
Act. He should have applied the Arbitration
Act to determine what
issues he could or could not arbitrate. The Labour Relations Act was
only relevant to his powers to decide
what relief he could grant to a
party;
(v) Committed a material
misdirection in holding that his terms of reference did not include
the determination of an automatically
unfair dismissal and so
prevented the applicant from putting forward his case;
(vi) Materially ignored
relevant considerations relating to the conduct of the parties more
particularly the contents of the pre-arbitration
minute which
identified the relief claimed and left it open to the applicant to
indicate what grounds he relied upon in challenging
the substantive
fairness of his dismissal.
Alternative
relief
10. In so far as the
court finds that the arbitrator’s award is reviewable, the
applicant seeks a declaratory relief to the
effect that the
arbitrator’s ruling does not preclude him from referring a
dispute about an automatically unfair dismissal
to the CCMA. As an
alternative and only if the court finds that the arbitration
agreement precludes him from even raising an automatically
unfair
dismissal before the CCMA, then he seeks an order permitting him, on
good cause, to resile from the arbitration agreement
and to pursue an
automatically unfair dismissal claim in the CCMA. He further seeks an
order remitting the matter to the parties
to appoint a different
arbitrator and if they are unable so to agree, to permit the chairman
of the Bar Council of the Johannesburg
Bar to appoint an arbitrator.
The
version of the second respondent
11. The review
application is fatally defective and should be dismissed for that
reason alone in that:
Ø In a
review application an applicant must allege and support with credible
evidence that the Arbitrator:
·
delivered an award with conclusions which are not rationally
connected
to the reasons in the award or the evidence before the
Arbitrator; or
·
acted in excess of his powers; or
·
misconducted himself in relation to his duties as an Arbitrator; or
·
committed a gross irregularity in the conduct of the arbitration
proceedings;
or
·
that the award was improperly obtained.
Ø The
application does not allege or support with evidence any of these
grounds. In the absence of these allegations
properly pleaded, it
cannot be contended that the applicant has established a basis to
interfere with the award. On this basis
alone, the application stands
to be dismissed with costs.
Ø When
properly analysed, this entire application essentially boils down to
a desire by the applicant to refer for
adjudication an allegation
that the second respondent acted in breach of the PDA. Nothing in
fact precludes the applicant from
pursuing such claim in the
appropriate forum. The ruling of the arbitrator does not in any way
prevent the applicant from instituting
proceedings in terms of the
PDA.
Ø In
addition, the applicant accepts that the arbitration agreement and
the pre-arbitration conference do not expressly
provide for a claim
based on an alleged breach of the PDA. The applicant is in essence
criticising the arbitrator for failing to
imply a term in the
agreement between the parties. There is no allegation that he
exceeded his powers. The allegation is that he
interpreted the
agreement narrowly and refused to include a term which was not
expressly included in his terms of reference. The
complaint in
reality is about a difference of interpretation between the applicant
and the arbitrator. The applicant is in fact
attempting to appeal the
ruling under the guise of review.
12. The second respondent
proceeded to respond to the individual allegations made by the
applicant. The view I have of this matter
makes it unnecessary that I
should set out each of such submissions.
The
submission on behalf of the parties
13. The submissions made
by Mr Boda who appeared on behalf of the applicant are essentially
that:-
Ø While it
may be so that the initial pre-arbitration agreement does not
expressly make reference to an automatically
unfair dismissal, the
issues were enlarged upon in the pre-arbitration conference when the
applicant recorded that he would revert
to the respondent about the
substantive basis of the challenge to the dismissal and when he
claimed a solatium.
Ø The
pre-arbitration agreement is a consensual document which binds the
parties thereto and obliges the court (in
the same way as the
parties’ pleadings do) to decide on the issues set out therein
– Numsa v Driveline Technologies
(Pty) Ltd & Another
[2007] ZALC 66
;
[2000]
1 BLLR 20
(LAC).
Ø The
applicant is entitled to enlarge upon the issues contained in the
pre-trial agreement if he has not abandoned
them, by amending the
type of relief sought. In the Driveline case the applicant initially
referred a dispute based on unfair dismissal
but later successfully
sought to enlarge upon the case by including an automatically unfair
dismissal.
Ø The
arbitrator must decide upon the true issues that the parties intended
for him to decide upon and these issues
can be enlarged upon during
evidence or in a subsequent pre-trial meeting.
Ø The fact
that the applicant claimed a solatium and further left open the
substantive basis to challenge the dismissal
without the respondent’s
objection, indicated that the applicant had legitimately enlarged
upon the dispute in the pre-arbitration
minute and that he was
entitled to ventilate a dispute based upon a protected disclosure. If
anything, that is why he claimed a
solatium.
Ø The
authorities indicate that in cases involving an automatically unfair
dismissal the measure of compensation is
not limited to financial
loss but includes a solatium – Ceppawu & Another v Glass &
Aluminum 2000 CC
[2002] 5 BLLR 399
LAC.
Ø The
pre-arbitration minute accordingly enlarged upon the disputes
contained in the pre-arbitration agreement and
the arbitrator was
accordingly obliged to determine the applicant’s case based on
an automatically unfair dismissal. By refusing
to allow the applicant
to ventilate a case based on an automatically unfair dismissal, the
arbitrator in effect committed a gross
irregularity.
Ø By not
hearing any evidence concerning background circumstances before
deciding that the background circumstances
allowed him to restrict
his terms of reference, he committed a gross irregularity.
Ø The main
thrust of the arbitration award seems to rest on the proposition that
because a CCMA commissioner cannot
deal with an automatically unfair
dismissal claim, he also could not deal with it in consequence of the
fact that the parties had
stipulated that he would have the same
powers as if he were a commissioner of the CCMA.
Ø The CCMA
is not prevented from dealing with automatically unfair dismissal
claims if the parties consent thereto.
In the pre-arbitration minute
the second respondent expressly recorded that it would not take any
points in limine after the applicant
recorded that he would inter
alia be seeking a solatium in the sum of R1 million. The second
respondent allowed the applicant the
luxury of enlarging upon the
dispute. Consequently, the second respondent had consented to the
arbitrator determining the issue.
Ø Even if
the arbitrator did not have the power to grant relief beyond 12
months, he was still not prevented from dealing
with the merits of
the dismissal. The parties did not limit the arbitrator’s
jurisdiction based on the reasons for dismissal.
On the best case for
the second respondent, they simply limited the relief. The
Arbitration Act does not prevent the arbitrator
from arbitrating a
protected disclosures claim. Unlike the CCMA, the arbitrator’s
jurisdiction was not limited based upon
the reason for dismissal.
14. In opposing the
application, Mr Ngcukaitobi appearing for the second respondent
submitted that:
Ø In this
application, there is no allegation that the first respondent
misconducted himself in relation to his duties
as an arbitrator.
The challenge in this matter is that the arbitrator committed
“material misdirections”. A material
misdirection is not
misconduct. See Hyperchemicals International (Pty) Ltd and Another v
Maybaker Agrichem & another
1992 (1) SA 89
(W).
Ø Similarly,
in Bester v Easigas (Pty) Ltd
1993 (1) SA 30
(C) it was said with
regard to setting aside of an award on the basis of misconduct, the
applicant would have to show that there
was an improper or mala fide
conduct on the part of the arbitrator in relation to his duties as
arbitrator.
Ø As pointed
out in the present matter, there is no allegation that the arbitrator
misconducted himself. There is nothing
further on the record to
substantiate a claim based on misconduct of the arbitrator. The fact
that an arbitrator delivered a ruling
adverse to one party is not
misconduct, even where the arbitrator “wrongly” does so.
(Dickenson & Brown v Fisher’s
Executors 1915 AD166)
Ø The ruling
thus cannot be set aside on the basis that the arbitrator committed
misconduct in relation to his duties
as an arbitrator.
Gross
irregularity or exceeding powers
Ø The
founding affidavit does not properly set out the exact grounds of
review by reference to the Act. None of the
grounds contained in
section 33 of the Act have been expressly pleaded by the applicant.
From the argument, it can be inferred
that the complaint is that the
arbitrator committed a gross irregularity by finding that he did not
have jurisdiction to determine
a dispute based on the breach of the
PDA. By its very nature, the dispute cannot be that the arbitrator
acted in excess of his
powers. An arbitrator who finds that he does
not have powers to determine something cannot sensibly be said to be
acting in excess
of his powers.
Ø It is
assumed that the complaint of the applicant is that the arbitrator
committed a gross irregularity in the conduct
of his proceedings. At
a formal level, the approach of the applicant – in failing to
expressly plead a gross irregularity
and apparently relying on it in
argument – stands to be criticised. A party wishing to allege a
gross irregularity in an
award must make that clear in the review
application. A respondent in a review application is entitled to know
what case it must
meet. (Smuts v Adair & Others
[1999] 4 BLLR 39
2 (LC) para 16)
Ø The
crucial question is whether the conduct of the arbitrator prevented a
fair trial of these issues. A wrong view
on the law or the facts is
not gross irregularity.
“
The power given to
the arbitrator was to interpret the contract rightly or wrongly; to
determine the applicable law, rightly or
wrongly; and to determine
what evidence was admissible, rightly or wrongly.” – See
Telecordia Technologies Inc v Telkom
SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA).”
On the facts
Ø When the
facts of this case are considered, no gross irregularity can be said
to arise. The issue in dispute concerns
the interpretation of the
arbitration agreement between the parties. A useful background to the
conclusion of the arbitration agreement
is set out in the answering
affidavit.
Ø In the
answering affidavit, it is stated that after his dismissal, the
applicant lodged an internal appeal. The internal
appeal was not
processed because the parties decided to refer the unfair dismissal
dispute of the applicant to private arbitration.
Ø From its
terms, the agreement does not refer to any alleged breaches of the
PDA. The reason for this is that the
PDA was not raised by any of the
parties at the time the agreement was concluded. Crucially, the
applicant also does not allege
that the agreement provides for a
determination of alleged breaches of the PDA. He cannot do so because
on its plain terms, the
arbitration agreement does not refer to the
PDA. In fact, there was no reference to the PDA by any of the parties
until 31 October
2006.
Ø On that
day (31 October 2006) the applicant did not argue that the agreement
refers to the PDA nor did he argue that
the pre-arbitration minute
made references to the PDA. In his argument before this court, the
applicant does not allege that the
PDA appears from the arbitration
agreement. He does not even allege that the arbitration agreement was
amended to include the PDA.
He cannot make any of these arguments
because the agreement does not refer to the PDA nor is there a record
of any amendment to
the agreement.
Ø In the
argument on behalf of the applicant, reliance has been placed on the
contents of the pre-arbitration minute
concluded on 30 June 2006. At
paragraph 4 of that minute, the Applicant informed the second
respondent that he would “revert”
to it concerning other
grounds on which he contends that his dismissal was substantively
unfair. It is also argued that in that
minute, the applicant claimed
solatium. This court is then urged on the basis of paragraphs 4 and 5
of the pre-arbitration minute
to find that the arbitrator should have
expanded the scope of his powers. The applicant’s entire
argument is, with respect,
flawed.
Ø The
applicant’s reference to the decision of the LAC in NUMSA v
Driveline Technologies (Pty) Ltd & Another
[2007] ZALC 66
;
[2000] 1 BLLR 20
(LAC)
is also misplaced. That case did not concern the question raised by
the present matter. As usefully summarised by Conradie
JA, that case
was “an appeal against a refusal by the court a quo to grant an
application for an amendment to the appellant’s
statement of
case. The present case is about a private arbitration agreement
concluded in terms of the Arbitration Act, which was
not the issue in
Driveline Technologies.
Ø The
applicant also argues that by undertaking to revert to the second
respondent with regards to “other”
grounds on which
he claims that his dismissal was substantively unfair, he “left
the door open” to make a claim for
alleged breach of the PDA.
There are two reasons why this argument cannot be accepted. Firstly,
the issue in this case is whether
there was an agreement to expand
the terms of reference of the first respondent. The fact that the
applicant undertook to revert
to the second respondent about grounds
for alleged substantive unfairness does not amount to an agreement.
It is manifestly not
an agreement. Secondly, on the facts, the
applicant reverted to the second respondent about the reasons for his
claim of substantive
fairness.
Ø The
arbitrator cannot therefore be criticised for deciding the question
about the scope of his powers by making reference
to the arbitration
agreement. He cannot be criticized for refusing to introduce a term
to the agreement in the face of a clear
dispute between the parties
about whether he could award solatium.
Analysis
15. As already
indicated the review application is to be considered together with a
condonation application. The issues between
the parties have not yet
been resolved as the arbitration hearing had just commenced. An
approach which will tend to provide future
guidance of the parties
will be followed in the disposal of the pertinent issues.
16. In respect of a
condonation application, the approach to be adopted is well settled.
The approach followed in Moila v
Shai NO & Others [2007] 28 ILJ
1028 (LAC) by the learned Zondo JP is appropriate in the present
matter. He had the following
to say:
(34) “………
where, in an application for condonation, the delay is excessive and
no explanation has been
given for that delay or an explanation has
been given but such ‘explanation‘ amounts to no
explanation at all, I do
not think that it is necessary to consider
the prospects of success.
(35) In
Melane v Santam Insurance Co Ltd
1962 2 (4) SA 531
(A) at 532 C-F
Holmes JA set out the factors that need to be taken in to account in
considering an application for condonation
where sufficient cause –
which is the same as good cause – must be shown before
condonation can be granted. One of
the principles he set out is that,
although the factors he set out therein are interrelated and are not
individually decisive,
if there are no prospects of success there
would be no point in granting condonation…”
17. An unacceptable
explanation for the delay remains just that, whatever the prospects
of success on the merits – See
Chetty v Law Society, Transvaal
1985 (2) SA 785.
18. The explanation
proferred for the delay must now be considered. In doing so, I take
note that the applicant received the
arbitration ruling on 1 November
2006. Six weeks would expire around 18 December 2006. The review
application was filed on 21 January
2007. There is therefore a period
of about 8 weeks that the review application was delayed for. The
delay appears to have been
occasioned in the main, by legal
representatives of the applicant. The explanation is that the
applicant approached three advocates,
each of whom could not
timeously give him the assistance he needed in processing the review
application. What is more disturbing
is that no confirmatory
affidavits were filed from these advocates which fact waters down the
very explanation sought to be made
for the delay. There are
unexplained periods such as the period 13 December 2006 to 14 January
2007, when it was said that the
instructing attorney spoke to a
certain Advocate Fourie, as neither of his other standing counsel
were available. As Advocate Fourie
was unavailable, he referred the
instructing attorney to Advocate Venter. The e-mail of 21 December
2006 by Advocate Venter explains
only a short period when he needed
to scrutinise the paper and study relevant law. That the offices of
the applicant’s attorney
were closed during 15 December 2006 to
15 January 2007, appears irrelevant as he was briefing counsel for
the applicant during
the same period. By 12 January 2007 the
necessary documents for the review application had not been drafted.
So nothing much had
been achieved and a brief had to be retrieved
from Advocate Venter. The explanation for the period 14 January to 13
February 207
is far from being satisfactory when seen against the
papers that were subsequently filed. The applicant has not taken this
court
into his confidence on the explanation proferred. As these are
material periods for which no explanation was given, the explanation
is not acceptable. On this basis alone I am prepared to dismiss the
two applications.
19. However even as
I consider the prospects of success, it seems to me that there are no
prospects of success in this matter.
The submissions made by Mr
Ngcutaitobi persuaded me into accepting that the first respondent
committed no reviewable defect. There
is no allegation made in the
papers that the first respondent misconducted himself in relation to
his duties as an arbitrator.
The “material misdirections”
referred to in the papers by the applicant are not the misconduct.
The decision in the
case of Hyperchemicals International (Pty) Ltd
and Another v Maybaker Agrichem & Another
1992 (1) SA 89
(W) is
apposite. In page 97 lines C-E the following appear:
‘ “
As I read
Dickenson & Brown v Fisher’s Executors
1915 AD 165
, the
misconduct which entitles a Court to set aside the award of an
arbitrator must amount to dishonesty. I think that is the true
reading of the judgment…………Now Dickenson
and Brown v Fisher’s Executors is express authority
for the
proposition that a mistake made by an arbitrator, either by fact or
of law, is no ground for interfering with an arbitrator’s
award, and unless I misunderstood that judgment, so long as a mistake
is bona fide, it does not matter whether it is gross mistake
or a
slight mistake, in either there is no foundation for this Court’s
jurisdiction to interfere with the award and set it
aside.” ‘
20. In the present
matter, no case of an act of dishonesty has been made out against the
first respondent. Nor are the grounds
outlined by the applicant
related to the other grounds provided by the Arbitration Act as
explained in Dickenson’s case.
21. Further, it is
ludicrous to submit that the pretrial agreement between the parties
entitled the applicant to enlarge upon
the substantive fairness of
the dismissal even after the hearing had commenced in this case. The
first witness of the second respondent
had completed or was about to
complete his evidence in chief. In fact the matter was postponed on
the understanding that cross-examination
was to commence when the
matter resumed. It could not reasonably be argued that at that stage
the second respondent would be a
party in an agreement to enlarge the
substantive fairness of the dismissal. That approach would probably
have prejudicial effects
on how the second respondent was to run its
case. The applicant failed to timeously outline his reliance on the
Protected Disclosures
Act so that the second respondent would be
enabled to deal with that issue through its first witness, If it
chose so to do. Accordingly,
in my view there never was an express or
tacit agreement to enlarge the ambit of the scope of the matters in
dispute. The decision
in Cone Textile (Pty) Ltd v Ayres and Another
1980 (4) SA (ZAD) is of no assistance to the applicant in this
regard.
22. It remains open
to the applicant, at his discretion to refer a dispute pertaining to
a breach of the Protected Disclosures
Act to an appropriate forum. In
my view he does not need a declarator from this court.
23. Accordingly,
the applicant has not shown any prospects of success which when
weighted against a not so good explanation,
would justify the
granting of the condonation application. It must follow then that the
condonation for the late filing of the
review application should not
be granted.
24. The following
order will therefore issue:
1. The
application for condonation is dismissed.
2. The
review application is dismissed.
3. The
matter is remitted to the first respondent who is to enable the
parties to proceed with the arbitration
hearing in this matter.
4. The
applicant is to pay costs of the condonation and the review
applications.
________
Cele
AJ
APPEARANCES:
For the Applicant: Adv F
A Boda instructed by S S Jugwanth Attorneys
For the Respondent: Adv T
Ngcukaitobi instructed by Bowman Gilfillan
Date of Judgment: 27 June
2008