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[2009] ZALCJHB 63
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Nordisk v Commission for Conciliation, Mediation and Arbitration and Others (JR214/01) [2009] ZALCJHB 63 (18 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR 214/01
CASE
NO: J2498/08
In
the matter between:
NOVO
NORDISK
APPLICANT
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
1
ST
RESPONDENT
JOYCE
TOHLANG
N.O.
2
ND
RESPONDENT
THULANI
MANQELE
3
RD
RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
In the main application in this matter the applicant seeks to review
and set aside the arbitration award issued under case number
GA76865
dated 26
th
January 2001 in terms of which the second
respondent found the dismissal of the third respondent (the employee)
to have been unfair
an ordered his reinstatement.
[2]
The applicant has now brought an application for condonation for the
late filing of record of the arbitration proceedings. The
employee
opposed the application for condonation of the late filing of the
record of the arbitration proceedings. In addition to
opposing the
condonation application the employee has filed an application to have
the arbitration award made an order of Court.
[3]
The applicant is a company registered in terms of the laws of South
Africa and is involved in the pharmaceutical business.
Background
facts
[4]
This matter has a very long history dating back to January 2001 when
the commissioner issued the award ordering the reinstatement
of the
employee. The applicant was unhappy with the decision of the
commissioner and accordingly filed a review application in
which it
is contended that the commissioner committed an irregularity,
misdirected herself and projected a misunderstanding or
ignorance of
the concept of hearsay evidence.
[5]
The offence for which the applicant was charged and dismissed for had
to do with theft and unauthorized possession of the applicant’s
property.
[6]
At the arbitration hearing the applicant relied on two witnesses in
support of its case that the dismissal of the employee was
for a
valid and substantively fair reason. The financial director of the
applicant, Mr Berndt was the first witness to testify
for the
applicant. He testified about the information he received from a
private investigator regarding certain irregularities
which were
taking place within applicant’s operations. He further
testified that he initially did not react to this information
but
when the private investigator called the third time he decided to
arrange a meeting with him. According to him the private
investigator
informed him about the applicant’s goods which had been
purchased in Pretoria and at Bruma Lake. The private
investigator
also referred during that meeting to photos which were taken at Bruma
Lake.
[7]
The version of the applicant is that in those photos (which the
commissioner had marked “AB1 last page”) appear
a BMW
motor car, and the employee counting money which he had received from
the sale of the goods belonging to the applicant.
[8]
The chairperson of the disciplinary hearing was Ms Sophos, who was
also the second witness of the applicant, testified about
the
evidence which was led during the disciplinary hearing. She testified
that the evidence led during the disciplinary hearing
related to the
photographs and a box which is alleged to have been used during the
sale transaction which the employee undertook
at Bruma Lake.
[9]
In his defence the employee testified that he was on 25
th
August 1999, summoned by Mr Berndt to his office and accused of
having made R2 million for himself and thereafter showed him certain
photographs. He was also accused of having sold the applicant’s
products in Pretoria and Bruma Lake.
[10]
In relation to being at Bruma Lake on the 20
th
August
1999, the employee testified that he had gone to the area further to
the appointment he had with a client who wanted to
purchase some
products from the applicant. That customer according to the employee
wanted to purchase the goods on the basis of
a cash sale.
[11]
According to the employee on arrival at Bruma Lake, the customer came
to him carrying a box which he had assumed was empty
because of the
manner in which the customer was carrying it. The customer then asked
him for the price list which he fetched from
his car. On return with
the price list the customer showed him insulin. When he enquired as
to why the insulin was not in the refrigerator,
the customer informed
him that it had just arrived. The employee denied having sold the
applicant’s goods in Pretoria and
Bruma Lake.
[12]
In finding the dismissal of the employee to be unfair and ordering
that he be reinstated the commissioner reasoned that the
evidence of
Mr Berndt was largely based on the information he received from
another source, the private investigator who never
testified during
the arbitration hearing. It is for that reason that the commissioner
found the evidence of Mr Berndt to have been
based on hearsay
evidence. In arriving at this conclusion the commissioner relied on
the provisions of
section 3(1)
of the
Law of Evidence Amendment Act
No. 45 of 1988
.
Section 3(1)
of that Act provides as follows:
“
3(1) Subject to
the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless –
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at
such proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at
such proceedings; or
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the proceedings;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of
such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii) any
other factor which should in the opinion of the court be taken into
account is of the opinion that such evidence
should be admitted in
the interests of justice.
(2)
The provisions of subsection (1) shall not render admissible any
evidence which is inadmissible on any
ground other than that such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of subsection
(1) (b) if the court is informed
that the person upon whose
credibility the probative value of such evidence depends, will
himself testify in such proceedings:
Provided that if such person
does not later testify in such proceedings, the hearsay evidence
shall be left out of account unless
the hearsay evidence is admitted
in terms of paragraph (a) of subsection (1) or is admitted by the
court in terms of paragraph
(c) of that subsection.
(4)
For the purposes of this section –
“
hearsay
evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of
any person
other than the person giving such evidence;
“
party”
means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution.”
[13]
The commissioner noted the reasons why the applicant did not call the
private investigator to testify. The explanation tendered
by the
applicant was that the private investigator was scared to testify for
fear of his live. In this regard the applicant testified
that two of
the applicant’s partners died in mysterious circumstances. The
commissioner rejected this explanation on the
basis that there was no
evidence that linked the employee to those deaths. It is also
apparent that in relation to possible intimidation,
the commissioner
also took into account the fact that the name of the private
investigator was disclosed. It was for these reasons,
it would
appear, that the commissioner refused to attach much value to
evidence of Mr Berndt and rejected the explanation tendered
for the
failure to call the private investigator to testify.
[14]
The commissioner further found that the process that led to the
charging and dismissal of the employee was an entrapment. The
commissioner found in regard to the issue of the entrapment that the
possibility existed for the private investigator to have gone
to
great lengths to ensure that the trap was a success because he stood
to benefit from showing that the employee was guilty and
thereby
justify his fees which he was to receive from the applicant.
[15]
In relation to the photographs the commissioner found that it was
common cause that the person appearing on the photos was
the
employee. She however found it strange that the photo of the box
which is alleged to have come out of the boot of the employee’s
car was not produced. The commissioner also rejected the version of
the applicant that in two of the photos the employee can be
seen
counting money. She says that she had looked at the two photos and
that she can only see the employee bending. She accepted
the
employee’s explanation that the reason he was bending was
because he was taking the price list out of the car boot. In
this
respect the commissioner accepted the version of the employee and
found that the applicant did not produce evidence to rebut
that
version and that there was no proof that the employee was handed
money.
[16]
The applicant being unhappy with the outcome of the arbitration
award, filed a reviewed application which was finalized on
18
th
November 2004. The mater came before Revelas J who reviewed and set
the arbitration award aside. The Learned Judge found that the
applicant was on the facts of the case entitled to dismiss the
employee. The employee appealed against the decision of Revelas
J. On
the 6
th
March 2007 the Labour Appeal Court struck the
review from the appeal roll, set aside the decision of Revelas J and
replaced it
with the following order:
“
(a)
The application for review brought by the applicant is struck off the
roll in order to enable the parties in this
matter together with the
Commissioner who heard the arbitration to reconstruct those parts of
the record of the arbitration proceedings
that are missing in the
record and supply whatever documents including exhibits before the
Commissioner into the review record.
(b)
The applicant is directed to immediately take such steps as may be
necessary to initiate the process
aimed at achieving the purpose
envisaged in (a) above, including bringing to the attention of the
Commissioner the fact that the
record filed in this review
application was incomplete and that her cooperation is required to
ensure that there is a complete
record before the Court.
(c)
The complete record must have been filed or delivered to the
Registrar within (30) Court days from the
6 March 2007, failing which
the applicant must in writing through the Registrar apply for an
extension of the time if the complete
record is not filed within that
period.
(d)
Once the record has been filed with the Registrar or at the time of
filing the complete record the applicant
must in writing request the
Registrar to give the matter some priority in setting it down for
hearing in the Labour Court and it
is ordered that the Registrar some
priority.
(e)
The applicant is ordered to pay the costs of the third respondent but
such costs shall be limited to
disbursements.”
[17]
It is clear from the terms of the above Court order that the
applicant was given 30 (thirty) days from the 6
th
March
2007 to deliver the record of the arbitration proceedings failing
which it had to apply for an extension of that period through
the
Registrar of this Court.
[18]
On the 4
th
May 2007, the applicant having been late by
about 15 (fifteen) days applied to have the period extended. In the
mean time the CCMA
had set the matter down for reconstruction of the
record for the 27
th
and 28
th
June 2007. The
meeting could not take place because the union on behalf of the
employee objected to this arrangement on the basis
that they were not
consulted about the dates and more importantly that the applicant was
out of time and needed to apply for an
extension of the period of 30
(thirty) days as stipulated by the Labour Appeal Court order.
[19]
The 30 (thirty) days as prescribed by the Labour Appeal Court for the
purpose of reconstructing the record was extended further
by the
Labour Court on 8
th
November 2007. Following that
extension the CCMA scheduled a reconstruction meeting for the 18
th
and 19
th
December 2007. Because the parties could not
complete the reconstruction of the record on those two days the CCMA
scheduled another
meeting for the 14
th
and 15
th
January 2008. By that time the extension granted would have expired
as at 20
th
December 2007.
[20]
The applicant’s attorneys addressed a letter to the Registrar
on the 8
th
January 2008, informing her that the parties
could not complete the reconstruction at the two days in December
2007 because Mr
Berndt walked out of one of the meetings. The
applicant further indicated that they would wait for the CCMA to
subpoena him back
to the process. It is not clear why the CCMA needed
to subpoena Mr Berndt to the process when the applicant as his
employer could
have simply instructed him to do so.
[21]
On the 14
th
January 2008, the CCMA commissioner postponed
the reconstruction of the record meeting because of the letter which
had been addressed
to the Registrar indicating that no extension had
been granted.
[22]
On the 5
th
February 2008, Van Niekerk AJ, as he then was,
issued a directive through the Registrar indicating that the
applicant needed to
apply for an extension.
Principles
governing condonation
[23]
This Court has in several of its judgments stated
that the principles governing the requirement for granting or refusal
of condonation
are well established in our law. In terms of these
principles the Court has a discretion which is to be exercised
judicially after
taking into account all the facts before it. The
factors which the court takes into consideration in assessing whether
or not to
grant condonation are: (a) the degree of lateness or non
compliance with the prescribed time frame, (b) the explanation for
the
lateness or the failure to comply with time frames, (c)
prospects of success or
bona fide
defense in the main case; (d) the importance of the case, (e) the
respondent’s interest in the finality of the judgement,
(f) the
convenience of the court; and (g) avoidance of unnecessary delay in
the administration of justice. See
Foster
v Stewart Scott Inc (
1997) 18 ILJ 367 (LAC).
[24]
There is also clear authority that these factors
are not individually decisive but are interrelated and must be
weighed against
each other. In weighing these factors for instance, a
good explanation for the lateness may assist the applicant in
compensating
for weak prospects of success. Similarly strong
prospects of success may compensate the inadequate explanation and
the long delay.
[25]
In an application for condonation, good cause is
shown by the applicant giving an explanation that shows how and why
the default
occurred. There is authority that the court could decline
the granting of condonation if it appears that the default was wilful
or was due to gross negligence on the part of the applicant. In fact
the Court could on this ground alone decline to grant an indulgence
to the applicant.
[26]
The prospects of success or
bona
fide
defence on the other hand mean
that all what needs to be determined is the likelihood or chance of
success when the main case is
heard.
See
Saraiva
Construction (PTY) Ltd v Zulu Electrical and Engineering Wholesalers
(PTY) Ltd
1975 (1) SA 612
(D)
and
Chetty v Law Society
1985 (2) SA at 765A-C.
[27]
It is important to point out that
without a
reasonable and acceptable explanation for the delay, the prospects of
success are immaterial, and without prospects of
success, no matter
how good the explanation for the delay, an application for
condonation should be refused. See
Melane v
Santam Insurance Co Ltd,
1962 (4) SA 531
(A) at 532C-F.
It has also been held by the courts
that the applicant should bring the application for condonation as
soon as it becomes aware
of the lateness of its case.
[28]
A proper explanation
entails, explaining for each period of the delay and the disclosure
of all the details relevant to the delay.
In explaining why the
delay, the applicant need to include the stage at which he or she
became aware of the lateness in the referral.
If the application was
not made immediately or soon after becoming aware of the lateness the
applicant need to provide an explanation
for that. And more
importantly the applicant needs to take the Court into its
confidence.
Reasons
for the delay
[29]
In its application for condonation for the late
filing of the record of the proceedings of the Commission for
Conciliation, Mediation
and Arbitration, the applicant states that it
does so in terms of paragraph (c) of item number 2 of the Labour
Appeal Court’s
Order issued under case number JA10/05.
[30]
The reason for the delay in convening the first
meeting of the reconstruction of the record according to the
applicant was due to
a difficulty which the parties experienced in
securing a date suitable to both parties. The applicant further
states that obtaining
a suitable time for the commissioner was
another factor which also contributed to the delayed in convening of
the first meeting.
[31]
The applicant contends that the employee
contributed to the delay when he addressed a letter to the CCMA
objecting to proceeding
with the reconstruction meeting which had
been scheduled for the 27th and 28th June 2007. The applicant does
not dispute that the
30 (thirty) days period had expired and that it
had not applied for its extension but contends that the employee was
not entitled
by virtue of the applicant’s lateness to refuse to
attend to the reconstruction process. The applicant argues in its
founding
affidavit that that the provisions of the Court order does
not state that an extension of time must be sought from the employee
or that the employee or his representative must consent thereto. The
applicant further contends that the Court order does not in
any
manner whatsoever, expressly or by the necessary implication,
authorize or allow any of the parties, especially the employee
to
refuse to participate in the reconstruction process after the expiry
of the period within which the applicant was to have filed
the
reconstructed record of the arbitration proceedings.
[32]
The applicant further contends that the
Registrar also delayed in informing it of the outcome of the
requested extension and thereby
contributing to the late filing of
the record.
[33]
It is common cause that when the matter was
scheduled for the first time the reconstruction process could not be
finalized and had
to be rescheduled for another date. On that
occasion the parties dealt with the reconstruction in so far as it
pertains to the
evidence of Mr. Jardine. That part of the record was
duly completed and certified by the commissioner as reflecting the
true version
of what transpired during the arbitration proceedings.
[34]
On the 18th and 19th December 2007, being the
second occasion when the parties met, they could not finalize the
reconstruction process
due to arguments that erupted in respect of
photographs that were tendered as part of the evidence tendered
during the arbitration
proceedings by the applicant.
[35]
The applicant blames the employee for the delay
in that according to it the employee was obstructive and
uncooperative and as a
result thereof Mr. Graham Berndt decided to
abandon his participation in the reconstruction of the record
process.
[36]
As concerning the prospects of success the
applicant states that it has good prospects of success in that:
“
24.1 That the
Third Respondent was not, as per the company policy, authorized to
sell products for cash to any of the Applicant's
clients, whether
existing or potential,-
24.2 That
the Third Respondent was not authorized to negotiate cash deals with
the Applicant's existing clients or even
potential clients-,
24.3 That
the Third Respondent was not authorized to conduct business on a
Saturday on behalf of the Applicant-,
24.4 That
the Third Respondent was not authorized to conduct business in the
manner that he did, by meeting with a client
in a parking bay-,
24.5 That
the insulin under consideration was lethal to the potential patients
as same was lined up for incineration.”
[37]
In his answering affidavit the employee
challenges the authority of the deponent to the applicant’s
founding affidavit, namely
Mr Jack Amon Zebediela, who is also the
attorney of record of the applicant. The employee contends in this
regard that the attorney
did not have the authority to attest to the
founding affidavit in that there is no resolution authorizing him to
attest to the
founding affidavit.
Analysis
and evaluation
[38]
In my view the applicant has failed to show
that it deserves the indulgence of the Court in as far as its
application for condonation
for the late filing of the reconstructed
record of the arbitration proceedings as directed by the Labour
Appeal Court is concerned.
Instead of explaining why it failed to
comply with the 30 (thirty) days period for filing of the
reconstructed record in terms
of the order of the Labour Appeal
Court, all what the applicant does is to place blame on the employee
and his representative.
It is apparent that at the time the employee
representative objected to the dates of the first meeting scheduled
by the CCMA the
30 (thirty) days as required by the Court order had
already expired. In my view the employee and his representative were
correct
in insisting that the applicant should seek an extension of
the 30 (thirty) days before proceeding with the reconstruction
process.
I therefore do not agree with the contention of the
applicant that the employee and his representative were uncooperative
and obstructed
the process of reconstructing the record. In a sense
in insisting that the applicant should obtain the extension first
before proceeding
with the reconstruction the employee was refusing
to be a party to undermining and engaging in conduct short of
contempt of the
Labour Appeal Court order. The letter requesting the
Registrar to extend the 30 (thirty) days period dated 4
th
May 2007, by the applicant illustrates in some way the attitude of
the applicant particularly in relation to ensuring the speedy
finalization of this matter. The letter shows no sense of urgency and
the need to avoid having the matter protracted further than
it
already had. The letter also in my view reflects that the applicant
was less concerned about the interests of the applicant
which was to
have the matter finalized as soon as possible. The relevant parts of
the said letter reads as follows:
“
THULANI
MANQUELE/ NOVO NORDISK CASE NO JR214/01
1.
We refer to the above matter, the hearing which was heard on the 16
th
of March 2007 and enclosed herewith a copy of court order delivered
by the Honourable Justice Zondo Judge President Juppie (sic)
and
Patel Acting Judges of appeal.
2.
The parties in this matter have been ordered to reconstruct those
parts of the arbitration
proceedings that are missing or inaudible in
the record and in terms of the court order the Applicant is ordered
to apply for an
extension if the reconstructed record is not
available within 30 days.
3.
The parties are out of time and we are request that you grant us an
extension in the above
matter for reconstruction of the record.
4.
Hope hear from you
Your faithfully.”
[39]
The applicant also blames the employee and his
representative for the walking out of the meeting in December 2007,
by Mr Berndt.
According to the applicant Mr Berndt left the meeting
because he was not happy with the protracted debates of the employee
and
his representative. It is apparent that one of the issues that
caused the debate concerned the issue of the photographs which were
used during the arbitration proceedings. The case of the applicant
was during the arbitration proceedings largely based on these
very
photos which were taken by the private investigator at scene of the
incident at Bruma Lake. The copies of the photos which
were used
during the arbitration proceedings were marked as annexure by the
commissioner.
[40]
The photos which the applicant sought to
introduce during the reconstruction process were not those which were
used during the arbitration
proceedings and marked as such by the
commissioner. The applicant does not explain what happened to those
photos which were apparently
collected from the record by its
attorneys.
[41]
The commissioner in her affidavit states that
Mr Berndt was requested to bring the photos which were used during
the arbitration
proceedings but failed to do so. There is no
explanation in the applicant’s founding affidavit as to why Mr
Berndt failed
to comply. It may be important at this point to also
indicate that the commissioner in an affidavit confirmed as a true
reflection
of what transpired at the arbitration proceedings the
reconstructed the evidence of Sophos. She further indicates that the
reconstruction
of Mr Berndt’s evidence was not done at the CCMA
and that she could therefore not confirm or dispute whether or not
the corrections
were done by him. It is also important to note that
the applicant has not attached a supporting affidavit from Mr Berndt
in this
regard.
[42]
The other difficulty which the applicant has
with regard to its application for condonation is that it does not
explain why it did
not comply with the directive issued by Van
Niekerk J. In terms of that directive as indicated earlier the
applicant was required
to apply for a further extension of the 30
(thirty) days as provided for in the Labour Appeal’s Court
order.
[43]
The applicant has also failed to deal with
another critical aspect in its condonation application, that of
addressing the issue
of the authority of Mr Zebediela of the
attorneys of record to depose to the founding affidavit.
[44]
As concerning the prospects of success the
applicant relies on the five points quoted above. The legal
representative of the applicant
argued during the hearing of the
condonation application that the Court should take into account the
fact that another Judge had
already found that the award was
reviewable. That does not in my view assist the case of the applicant
because that decision was
set aside by the Labour Appeal Court.
[45]
In my view whilst the standard required in
showing prospects of success is lower than that applied when the main
case is considered.
The applicant for condonation needs show more
than just listing factors related to prospects of success. The
applicant needs to
persuade the Court that there is a chance of the
arbitration award being found when the review is considered in the
main case to
be irregular or unreasonable.
[46]
The reading of the arbitration award alone
indicates to a very large extent that the commissioner applied her
mind to the issues
before her and analyzed the evidence of the
witnesses that testified. She also took into account in arriving at
the conclusion
that the dismissal was unfair, the relevant material
presented during the proceedings. She evaluated the evidence of the
main witness
of the applicant and came to the conclusion that his
evidence was based on what he was told by the private investigator.
It was
for that reason that she concluded that his evidence was
hearsay. It may well be that she was incorrect in her evaluation of
that
version but that is not the test in a review application. The
test is that of a reasonable decision maker as set out in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12
BLLR 1097
(CC).
Assuming that it was
possible to consider the review application on the basis of the award
and the limited record available, I
am of the view that the chances
of finding that the conclusion of the commissioner was unreasonable
are highly limited. It is also
apparent from the reading of the award
that the commissioner evaluated the applicant’s version which
was based on the photos
taken at Bruma Lake. She found that whilst
the person at the scene as reflected on the photos was the employee
and the car at the
scene was his, the photos did not constitute
sufficient evidence to show that the employee sold the products of
the applicant to
a third party. In relation to the reason for not
calling the private investigator to testify the commissioner rejected
the reason
advanced by the applicant as to why he did not testify.
She dismissed the reason of fear and intimidation as proffered by the
applicant.
That explanation could not according to the commissioner
apply because the name of the private investigator was disclosed.
[47]
In my view, the applicant’s application
for condonation stands to be dismissed.
[48]
It is trite that a review application does not
automatically stay the enforcement of an arbitration award. However,
as a matter
of practical approach and convenience the Court has
generally declined to make an award an order of Court whilst there is
a pending
review application.
[49]
In my view the circumstances of this case and
justice dictates that this Court should exercise its discretion in
favour of upholding
the employee’s application to have the
arbitration award made an order of Court. As a matter of principle
the status of the
award changes as soon as it is made an order of
Court. The consequences of making an award an order of Court is that
any pending
review would fall away as there would no longer be any
award to challenge but an order of Court which can only be challenged
by
way seeking leave to appeal before appealing against it. I do not
believe that an order as to costs should be made in this matter.
[50]
In the premises the following order is made:
(i)
The applicant’s condonation
application for the late filing of the purported reconstructed
recorded of the arbitration proceedings
is dismissed.
(ii)
The arbitration award issued by the
second respondent under case number GA76865 and dated 26
th
January 2001 is made an order of the Court.
(iii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
28
th
April 2009
Date
of Judgment :
18
th
September 2009
Appearances
For
the Applicant :
Adv G Hulley
Instructed
by :
Tshiqi Zebediela
Inc
For
the Respondent: Mr S Sebola
(Union Official)