About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2008
>>
[2008] ZALCJHB 37
|
|
Steyn v Middleburg Ferrochrome (A Division of Samcor Ltd) and Others (JR917/06) [2008] ZALCJHB 37 (22 December 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
JR
917/06
REPORTABLE
In
the matter between:
ZACHARIAS
FRANCIOS STEYN
APPLICANT
and
MIDDELBURG
FERROCHROME
(A
Division of Samcor Limited)
FIRST
RESPONDENT
TOKISO
SECOND
RESPONDENT
COMMISSIONER
PAUL
KIRSTEIN THIRD
RESPONDENT
JUDGMENT
Introduction
1.
This
is an application to review and set aside an arbitration award which
the third respondent issued in February 2006, in his capacity
as an
appointed arbitrator of the second respondent. The applicant filed
the review application outside of the six weeks period
and now seeks
to be granted condonation for its late filing. Both applications are
opposed by the first respondent in its capacity
as the erstwhile
employer of the applicant.
Background
Facts
2.
The applicant commenced his employment with the first
respondent (the company) on 1 November 1985. In 2005 he held the
position
of an Administration Accounting Manager. As such, he was in
charge of the company’s finances for which he was a custodian
in Middelburg. One of his responsibilities was the Management of
Middelburg Ferrochrome’s creditors.
3.
The company had a standing practice of paying its creditors after 30
days of the payment becoming due. One of such creditors
was a company
called ACD. It granted trade discounts to the company whenever the
company paid for its debts within 30 days. Towards
the end of 2000,
the Procurement Council of the company resolved that all its
creditors would henceforth be paid after 60 days
of such payment
becoming due. The underlying reason was that of ensuring that it had
a better cash flow positioning in its books.
A M Leon Lombard who was
in the employ of the company and the applicant’s colleague
devised a scheme which ensured that ACP
would still receive payment
to it within the 30 days’ period in return for the same
discount which ACP had initially given
to the company. The company
would thereafter reimburse the scheme with the same amount as was
disbursed by the scheme to the ACP
in terms of its new policy which
was without the discount. The scheme operated as an entity called
“Litau” or “Litau
Investments.” Litau
appropriated the trade discount on behalf of its investors and for
their benefit. The scheme became known
as a “debt factoring.”
4.
The company had a policy which prohibited any action in which
personal interests or benefits were derived in conflict with its
interests. Therefore its employees had a duty to disclose any actions
from which such conflict could arise.
5.
The General Manager of the company at the time, Mr Brian Gibson was
informed of the existence and operation of the Litau Scheme.
It was
reported to him that Mr Lombard’s family had provided the
necessary finance for the Litau scheme and he approved of
the
arrangement on the understanding that no employee of the company was
benefitting from the investment scheme.
6.
There was a stage when the cheque account of the applicant was used
in the running of the Litau investment scheme. Investors
paid money
into his cheque account and he would thereafter transfer it
electronically to Litau. He did not inform the company of
the
transfer of the monies into and from his account for the Litau
transactions.
7.
A stage was reached when management of the company was not happy with
the debt factoring exercise by Litau. Management decided
that the
exercise was to come to an end. According to the company, the debt
factoring exercise did not stop but continued with
a Barkhuizen
arrangement instead. The applicant’s version was that it stop.
When it did, the applicant had money of investors
in his account. He
refunded those who wanted their money. There are those who had hoped
for a longer investment. They agreed to
keep their money with the
applicant who then used it in his cash loan investment business. He
had previously run a similar cash
loan business. He had declared the
business to the company and the company had not raised an objection
to it as being in conflict
with its business.
8.
The applicant transferred the money of those investors who preferred
to keep it with him, into his bond account. A question arises
then as
to whether the applicant derived any indirect benefit from this money
and whether he was therefore in contravention of
the company’s
policies and procedures as he had a fiduciary duty to act in the best
interests of the company.
9.
In respect of the transactions between the company and ACP, the
applicant decided to revert to a 30 days payment arrangement
through
a direct payment from the company’s bank account, in direct
contravention of the 60 days payment policy. The applicant
thereafter
revived a debt factoring scheme in the same fashion as he had done
with Litau investment scheme, but this time it was
with one of Litau
investors, a Mr Barkhuizen. The investment scheme became the
Barkhuizen arrangement. Mr Barkhuizen was not an
employee of the
company. The revival of the debt factoring scheme took place some two
months after the termination of the Litau
investment scheme.
10.
The company decided to prefer 9 charges of misconduct against the
applicant. He was convicted of them and was dismissed. He
referred an
unfair dismissal dispute which had arisen for conciliation and later
for arbitration. A private arbitration was held
by virtue of a
collective agreement entered into between National Union of
Mineworkers of South Africa (NUMSA) and the second respondent,
in
terms of which the second respondent had been elected to adjudicate
disputes between employers and employees in the mining industry.
The
third respondent was appointed to arbitrate the dispute. He found the
applicant to have committed five of the nine charges
which he had
been initially charged with. He then found that the dismissal of the
applicant on 3 June 2005 was substantively fair.
The procedural
fairness of the dismissal had not been placed in dispute. The
applicant seeks to have the findings made on substantive
fairness
reviewed and set aside.
The
charges of misconduct
11.
T
he five charges of misconduct which the third
respondent found the applicant to have committed were described as:
“
Charge 1
Failure to abide by bona
fide business practices in your relationship with the company in that
you failed to disclose that you had
a direct and/or indirect interest
in or derived benefits from Litau Investments, and or your
association with J.G. Barkhuizen.
Charge 2
Failure to abide by bona
fide work and business practices in your relationship with the
company in that you failed to act in the
best interests of the
company in your dealings with suppliers.
Charge 3
Gross misconduct in that
by having a personal interest in and/or deriving benefits from Litau
Investments and/or you association
with J.G. Barkhuizen; you engaged
in practices and pursued private interests which were in conflict
with the company’s interests.
Charge 5
Dishonesty,
alternatively, misrepresentation, alternatively making false
statements in that on 15 March 2001, 18 April 2005 and
19 April 2005,
you misrepresented and/or lied about your interest in and association
with Litau Investments and/or J.G. Barrkhuizen.
Charge 8
Gross dishonesty,
alternatively negligence, alternatively not acting in the best
interests of the company in that you instructed
Ms Duvenhage to use
J.G. Barkhuizen as a debt factoring agent. The company was prejudiced
by such instruction as they did not obtain
the benefit of the
settlement discount.”
Grounds
for review
12.
In both the founding and supplementary affidavits, the
applicant submitted that the third respondent:
Ø did not
appreciate the complexity of the facts and the matter and
subsequently misapplied the law in adjudicating
upon the alleged
misconduct on his part.
Ø
misunderstood the facts and that his reasoning was flawed.
Ø misapplied
the facts in coming to his conclusion in respect of charge 1.
The
chief findings by the third respondent
13.
What follows are findings discussed by the third
respondent.
Charge
1
14.
The crux of the charge relates to the failure to
disclose. At no stage did the applicant declare the practice that his
bank account
was used as a conduit for the contributions made by the
investors. He accepted that the applicant in his position as
Administrative
Manager had the authority to introduce the concept of
debt factoring, which did not excuse him from fully disclosing his
interests
or involvement in debt factoring arrangement. He therefore
accepted that the applicant failed to fully disclose his involvement
in the Litau arrangement, in the disciplinary hearing transcript
there was no indication that it was only the applicant’s
cheque
account that was used as a conduit but that the applicant’s
bond account was actually used and therefore the applicant
saved
interest on his bond account, which interest was the benefit. The
applicant declared his involvement in the micro lending
business one
year after the bond account was utilized as a conduit. At no stage
did the applicant declare the savings on his bond
account as a
benefit. The failure to declare the benefit was contrary to the
bona
fide
work and business practices. The applicant’s version
that he verbally canvassed the Barkhuizen arrangement with Mr Gibson
was accepted. There was no indication that the applicant had a direct
or indirect interest or benefit from the Barkhuizen arrangement.
The
bank statements attached to the respondent’s heads of argument
did not form part of the evidence presented at the arbitration
and
were therefore not taken into consideration. The applicant was
correctly found guilty of the non-disclosure of an indirect
interest
and benefits derived from the Litau arrangement.
Charge
2
15.
This charge pertained to a failure to abide by
bona
fide
work and business practices in his relationship. The
introduction of the concept of debt factoring up to the point when
the Litau
arrangement was terminated could not be criticised as it
had Mr Gibson’s approval. The applicant did not act in the best
interest of the company when the Barkhuizen arrangement with ACP was
introduced.
Charge
3
16.
The crux of this charge related to the personal and/or
private interest of the applicant in the Litau and Barkhuizen
arrangements.
The applicant’s personal interest in recruiting
investors in the Litau arrangement was declared and approved by Mr
Gibson.
The private interest pursued by the applicant in that the
applicant accepted investors monies into his bond account was not
disclosed.
That only friends of the applicant participated in the
debt factoring arrangement was a valid concern from which an
inference could
be drawn that the applicant pursued his personal
interest. The applicant willfully pursued his own interest in the
Litau and Barkhuizen
arrangements in conflict with the Company’s
interest.
Charge
5
17.
The crux of this charge related to alleged acts of
dishonesty or misrepresentation about applicant’s interest in
and associated
with Litau Investments and or J.G. Barkhuizen. In the
statement of the applicant dated 15 March 2001, he failed to disclose
the
use of his account as a conduit and the subsequent benefit. The
failure of the applicant to disclose his indirect involvement in
the
debt factoring arrangement constituted misrepresentation. An
inference could be drawn that the misinterpretation was done to
hide
the pursuing of personal interests in the debt factoring
arrangements.
Charge
8
18.
This charge pertained to the allegation of gross
dishonesty or negligence or not acting in the best interests of the
company by
instructing Ms Duvenhage to use J.G. Barkhuizen as debt
factoring agent, depriving the company of the benefit of the
settlement
discount. It could not be determined that the applicant
acted grossly dishonest. That he did not act in the best interest of
the
company by introducing the Barkhuizen arrangement constituted
negligence. The company did not obtain the benefit of the settlement
discount. The Erasmus instruction to stretch creditors was not
formally withdrawn.
The
condonation application
19.
I consider it appropriate to now deal with the condonation
application as the further consideration of the review application
depends
on it. In his condonation application the applicant dealt
with:
(a) the degree of
lateness
(b) reasons for
lateness
(c) importance of
the matter
(d) factual
background and grounds for review
The
degree of lateness
20.
The applicant said that he received the arbitration
award on 8 February 2006. He ought to have launched the application
for review
of a private arbitration award within a reasonable period
of time, which has been construed as constituted by a period of six
weeks.
He submitted correctly that the application ought to have been
filed on or before 22 March 2006 but was filed on 19 April 2006 which
is a period of delay of about 26 days. He said that the degree of
lateness was not excessive in the circumstances. The submission
by
the company is that the period was excessive under the circumstances.
Reason
for the lateness
21.
He said that he considered the arbitration award and
then forwarded a copy thereof within a week to his attorney for his
consideration.
He had some delay in communicating with his attorney
based in Johannesburg while he (the applicant) resided in Witbank and
seldom
traveled to Johannesburg. He regarded the matter so complex
that it could not simply be discussed over the telephone call or by
email correspondence. He said that attempts to find mutually suitable
dates for their meeting were frustrated by a constant clash
of their
schedules. When eventually his attorney, Mr van Wyk was available to
meet him, he was unable to attend the meeting as
a result of an
urgent medical operation he had to undergo on 10 March 2006. He was
only able to meet Mr van Wyk at the end of May
2006, after recovering
from the operation.
22.
Pursuant to their meeting, Mr van Wyk insisted that counsel be
approached for legal advice on the prospects of success of the
review
application. A further delay of several days was occasioned.
23.
In response, the company submitted that the applicant had a period of
over a month to consult with his attorney prior to the
operation. It
said that if this matter was of utmost importance to the applicant,
he was to have done his utmost to submit the
review application
timeously. It pointed out that it was almost two months after
receiving the award, that the applicant finally
met his attorney and
yet no explanation was proffered for the delay in pursuing this
matter. It referred to the incompatibility
of the schedule of
the unemployed applicant with his attorney and pointed out that the
applicant should have had enough time to
meet with his attorney, if
he considered the matter of utmost importance to him. It averred that
the applicant failed to proffer
a detailed explanation of the delay
when the period was excessive.
Importance
of the Matter
24.
The applicant said that, as a result of his dismissal
he has been unable to find alternative employment, especially in the
light
of his tarnished employment record. He has been employed with
the company for approximately twenty years, during which time he said
he had proven himself to have been an exceptionally reliable employee
with an unblemished employment record. He stated his age
to be fifty
one years which fact he said added to his difficulty in securing
alternative employment. He submitted that since his
dismissal, he
applied for numerous positions but to no avail. That, he said, was
exacerbated by the fact that he did not meet with
the present
employment practices and requirements within the business sector.
Should this court find that his dismissal was substantively
fair, he
shall be in a better position to secure employment and or be
reinstated with his former employer. As far as the company
was
concerned, he said that the nature of the award did not in any way
prejudice it. He said that in terms of the award the company
was not
suffering any prejudice either financially or in any other manner
whatsoever. He averred that the lateness of the review
application
has not given rise to any prejudice on the part of the company.
25.
According to the company the applicant rendered himself as an
unreliable employee who failed to work in the best interest of
the
company. It was denied that the company would not suffer any
prejudice were the applicant to be granted condonation for the
late
filing of the review application. It was submitted that the rules of
this court had to be adhered to and that no proper explanation
had
been proffered by the applicant for his delay in pursuing the matter.
It was pointed out that the applicant failed to deal
with prospects
of success and that no such existed in the application. The award of
the third respondent was said to be correct
and that there were no
reasons to interfere with it.
26.
The applicant proceeded to deal with factual background and grounds
for review without separately dealing with the prospects
of success.
The earlier part of this judgment identified such factual background
and the grounds for review.
27.
In the decision of
Moila v Shai NO and Others
(2007) 28 ILJ
1028 (LAC) the court considered at least two cases pertaining to
those principles that apply when a condonation application
ought to
be considered. It then had the following to say:
“
[35] In
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-F Holmes JA
set out the factors that need to be taken into 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.’ In
Chetty v Law Society
, Transvaal
1958
(2) SA 756
(A) Miller JA, on behalf of a unanimous court, dealt with
the term ‘sufficient cause’ or ‘good cause’
when
used in the context of an application for the rescission of a
judgment. At 765D-E he said:
‘
For obvious
reasons a party showing no prospects of success on the merits will
fail in an application for rescission of a default
judgment against
him, no matter how reasonable and convincing the explanation for his
default. An ordered judicial process would
be negated if, on the
other hand, a party who could offer no explanation of his default
other than his disdain of the Rules was
nevertheless permitted to
have a judgment against him rescinded on the ground that he had
reasonable prospects of success
on the merits.’ (Emphasis
added.)
[36] Although the
italicized part of this passage was said in respect of an application
for the rescission of a judgment, I can
see no reason why as a matter
of principle it cannot or should not hold good in respect of an
application for condonation such
as the one the appellant made to the
CCMA in this case. Although I do not think that it can be said that
the reason for the appellant’s
failure timeously to request
that his dispute be arbitrated was his disdain for the relevant
provisions, I do not think that Miller
JA meant to lay down disdain
for the rules or statutory provisions as an essential requirement
before the principle he enunciated
could apply. I think that was
simply an example he used to illustrate the point. I am sure it would
apply in a case where there
was no disdain but negligence or
carelessness.”
(sic)
28.
In this matter the period of delay is just about four weeks which
is less than the reasonable period of six weeks in which the
application
ought to have been brought. The delay in the
Moila
case was found to have been over three times the prescribed period
set and therefore amounted to an excessive delay. In the present
matter I am not of the view that the delay, which is material, is of
an excessive nature. See also:
National Union of Mineworkers and
Another v CCMA and Others
(2007) 28 ILJ 402 (LC) and
Ruijgrok
v Foschini (
1999) 20 ILJ 1284 (LC), for the periods therein
discussed.
29.
In essence two reasons were proffered for the delay, being that the
time schedule for the applicant and that of his attorney
were
constantly clashing and that he had to undergo a medical operation
and thereafter to recuperate. The second explanation for
the delay is
acceptable and understandable. The first is not, as correctly pointed
out by the company. The statement he made is
bold and
unsubstantiated. He was unemployed and yet had so tight a schedule
that it clashed with that of his attorney. He has not
explained what
it is that kept him busy at a time when he was unemployed. He has not
explained what else could have been so important
as to rank supreme
over the review of an arbitration award that rendered him unemployed.
None of the factors thus far considered
are however, individually or
collectively decisive.
30.
I entertain no doubt that to the applicant, this matter is of great
importance. He was a senior employee of the company and
spent a
considerable working period of his life in the company. He had
attained seniority in his working environment. Similarly,
the company
is entitled to finality in the matter as it has a business to run. I
have already found in favour of the applicant
that the delay was not
excessive.
31.
The applicant ought to have also shown this court that he had good
prospects of success. In paragraph 7.4.4 of his founding
affidavit,
the applicant stated that the matter was complex and that an
evaluation had to be done beforehand, in order to consider
the
prospects of success of the review application. He however did not
separately deal with the prospects of success. In his favour
I will
adopt an approach that the grounds for review together with the
factual background constitute not only the merits of the
review
application but also his outline of the prospects of success.
The
nature of the arbitration award
32.
In paragraph 4.1 of the founding affidavit and in his
initial heads of argument reliance was places on the Labour Relations
Act
66 of 1995 (“the Act”) for the review of the
arbitration award of the third respondent, in this matter. In
paragraph
5.4 of his founding affidavit, the applicant correctly
states the position that:
“
5.4 The Second
Respondent presided over the arbitration relevant hereto by virtue of
a collective agreement entered into between
NUMSA and the Second
Respondent in terms of which the Second Respondent had been elected
to adjudicate disputes between employers
and employees in the mining
industry.”
33.
The second respondent is a private arbitration body distinct for
instance from a Bargaining Council or the Commission for
Conciliation,
Mediation and Arbitration (“the CCMA’). The
applicant was indeed obliged to submit to the arbitration as a
consequence
of the applicability of section 23 (1) (c) of the Act
which makes collective agreements binding on persons who are neither
parties
to the agreement nor members of parties.
34.
When this matter was heard before me, Mr M.S.M Brassey SC appeared
for the applicant and MR A.I.S Redding SC appeared for the
company.
Both filed supplementary heads of argument. In their submissions both
parties highlighted a difference between a statutory
arbitration
award and a private arbitration award. The salient features of a
private arbitration award were succinctly stated in
the decision in
Total Support Management (Pty) Ltd and another v Diversified
Health Systems (SA) Pty Ltd
[2002] ZASCA 14
;
2002 (4) SA 661
(SCA) thus:
“
[24] Arbitration
does not fall within the purview of ‘administrative action.’
It arises through the exercise of a private
rather than public power.
This follows from arbitration’s distinctive attributes, with
particular emphasis on the following.
First, arbitration proceeds
from an agreement between parties who consent to a process by which a
decision is taken by the arbitrator
that is binding on the parties.
Second, the arbitration agreement provides for a process by which the
substantive rights of the
parties to the arbitration are determined.
Third, the arbitrator is chosen, either by the parties, or by a
method to which they
have consented. Fourth, arbitration is a process
by which the rights of the parties are determined in an impartial
manner in respect
of a dispute between parties which is formulated at
the time that the arbitrator is appointed…”
35.
In respect of a statutory arbitration award, the court held in
Telcordia Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA)
inter alia
that:
“
[45]
……..administrative justice is concerned with the
exercise of a public power or the performance of a public function,
something with which consensual arbitration is not concerned.
Smalberger ADP said in this regard (para 24):
“
Arbitration does
not fall within the purview of “administrative action.”
It arises through the exercise of a private
rather than public power.
This follows from arbitrator’s distinctive attributes, with
particular emphasis on the following………’
“
36.
Mr Brassey argued that in the present case, the arbitration was not
consensual but statutory because of s 23 (1) (c) of the
Act and
because in
Telcordia
the court held that the position with
statutory arbitrations is different, having stated the four features
of a private arbitration.
He submitted that private arbitration in
the labour sphere operates as a substitute for statutory arbitration
under the auspices
of the CCMA or a bargaining council as the case
might be. That being so, he said, the process takes its character
from the character
of the statutory process. He averred that the
parties, in submitting to the arbitration, can never be taken to have
intended to
limit the scope of review of an ensuing award. He
submitted that the intention of the parties in submitting to private
arbitration
is of paramount importance in determining whether a party
intended to waive a right under the common law or otherwise. That, he
said, flew from the fact that the application of the Arbitration Act
and the scope of its application derive from the subjective
intention
of the parties. In respect of the content of the review test he
argued in favour of the reasonableness and rationality
standard of
review in the present matter.
37.
Upon reflection, I find the submissions by Mr Redding, to whom I am
indebted, to be highly persuasive in this regard. Firstly,
no case is
made out in the founding affidavit that Tokiso performed an
administrative function in arbitrating the dismissal dispute.
It is
an afterthought and accordingly not the applicant’s pleaded
case. Secondly, the reasonableness standard of review derives
from
the constitutional guarantee of the fair administrative action. The
functions performed by Tokiso are not administrative in
nature.
Tokiso functions on the basis that those that elect to refer their
disputes to it consent to its jurisdiction. In this
case, the
applicant too did not contest the validity of the agreement extended
to him and he voluntarily decided to refer the dispute
to Tokiso.
Tokiso is certainly not a creature of statute-see
Chirwa v
Transnet Ltd and Others
2008 2 BLLR 97
(CC).
The third respondent indeed performed a private arbitration and not
an administrative function. Thirdly, the applicant’s
submission
is certainly at odds with the purpose of s23 (1) (c) of the Act,
which permits plant level collective agreements made
by the majority
to be extended to the minority. This does promote democratization of
the workplace and it ensures workplace consistency.
If the applicant
is correct, these fundamentals would be undermined because it would
mean that union members who refer their dispute
to Tokiso would be
restricted to the narrow test of review while those in the
applicant’s position would rely upon a broad
test of review.
That would have a consequence of undermining collective bargaining
and it would discriminate against union members
on the basis of their
freedom of association. Members of a minority union might position
themselves with those in the position
of the applicant. This would
all undermine the purpose of section 23 (1) (c) and the whole Act.
38.
It is my finding that the narrow review test finds application in the
present matter. The grounds for review as postulate by
section 33
(1)
of the
Arbitration Act 42 of 1965
exist:
“
where
(a) any member of
an arbitration tribunal has misconducted himself in relation to his
duties as arbitrator; or
(b)
an
arbitration tribunal has committed any gross irregularity in the
conduct of the arbitration of the arbitration proceedings or
has
exceeded its powers; or
(c)
an
award has been improperly obtained,
the court may, on the
application of any party to the reference after due notice to the
other party or parties, make an order setting
the award aside.”
39.
The applicant placed reliance for this application on the allegation
that the third respondent committed a mistake of fact and/or
of law
in his arbitration award. Paragraph 86 of the
Telcordia
decision becomes relevant. It reads:
“
[86] Likewise, it
is a fallacy to label a wrong interpretation of a contract; a wrong
perception application of South African law,
or an incorrect reliance
on inadmissible evidence by the arbitrator as a transgression of the
limits of his power. The power given
to the arbitrator was to
interpret the agreement, rightly or wrongly; to determine the
applicable law, rightly or wrongly; and
to determine what evidence
was admissible rightly or wrongly. [Armah v Government of Ghana
(1966) 3 All ER 177
at 187 quoted in Anisminic Ltd . Foreign
Compensation Commission
[1968] UKHL 6
;
(1969) 1 All ER 208
(HL) at 223D-F.] Errors
of the kind mentioned have nothing to do with him exceeding his
powers; they are errors committed within
the scope of his mandate. To
illustrate, an arbitrator in a ‘normal’ local arbitration
has to apply South African law
but if he errs in this understanding
of local law the parties have to live with it. If such an error
amounted to a transgression
of his powers it would mean that all
errors of law are reviewable, which is absurd.”
40.
In paragraph 87, a reliance was placed on the decision of
Doyle v
Shenker & Co Ltd
1915 AD 233
where the following appears in
relation to a review ground of gross irregularity:
“
Now a mere mistake
of law in adjudicating upon a suite which the magistrate has
jurisdiction to try cannot be called an irregularity
in the
proceedings. Otherwise a review would lie in every case in which the
decision depends upon a legal issue, and the distinction
between
procedure by appeal and procedure by review, so carefully drawn by
statute and observed in practice, would largely disappear.”
41.
It must follow from the foregone firstly that the ground for review
relied upon by the applicant is bad in law. The third respondent
was
entitled to determine the applicable law, rightly or wrongly and to
determine what evidence was admissible rightly or wrongly.
The error,
if any committed by the third respondent, was committed within the
scope of his mandate.
42.
Secondly, and in the event I had to examine the merits of the attack,
the applicant alleged that there was no evidence showing
that he
benefited in either the Litau or the Barkhuizen scheme. The record of
the arbitration reveals that he admitted during the
disciplinary
hearing that
“
And that’s
my benefit between 1 and 2 million….½ % on R1 ½
million is a couple of thousand rand that
I was saving on my bond
interest.”
This was an admission
against self interest, made consciously by him in a hearing where it
was relevant to the charges he was
facing. There is no subsequent
sufficient explanation why the admission should not be upheld
against him. The applicant did not
testify to there being any
erroneous circumstances under which the admission was made. An
admission is part of evidential material
that may be utilised in the
determination of the guilt of any employee charged with an act of
misconduct. The third respondent
utilized it in reaching his
decision. In my view, he had no reason not to utilize it in the
circumstances of this case.
44.
A submission which suggests that there are good prospects of success
in this matter is therefore, erroneous. The absence of
good
prospects is very decisive in this matter over the other issues.
45.
Accordingly the following order will issue:
(1) The
application for condonation for the late filing of the review
application and that application for the
review of the arbitration
award dated February 2006 and issued by the third respondent, in this
matter are both dismissed.
(2) The
applicant is ordered to pay costs of the application.
____________
Cele
J
Date
of Hearing: 8 May 2008
Date
of Judgment: 22 December 2008
APPEARANCES:
For
the Applicant: Adv M.S.M Brassey SC
instructed by Cliffe Dekker Inc
For
the Respondent: Adv A.I.S Redding SC instructed by P.S & N
Attorneys