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[2010] ZALCJHB 67
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Modiba v Sirkhot and Others (JR167/08) [2010] ZALCJHB 67 (14 January 2010)
THE
LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO. JR 267/08
In
the matter between:
M.J.
MODIBA
Applicant
And
MR.
I. SIRKHOT
1
ST
Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL 2
ND
Respondent
MINISTER
OF SAFETY AND
SECURITY 3
RD
Respondent
NATIONAL COMMISSIONER:
SOUTH
AFRICAN
POLICE
SERVICES 4
TH
Respondent
JUDGMENT
VAN
NIEKERK J
Introduction
[1] This is an
application to review and set aside an arbitration award made by the
first respondent (the arbitrator) in terms of
which he found that the
applicant’s dismissal from the employ of the third and fourth
respondents was fair. This application
was filed some 6 months late.
The applicant has sought condonation for the late filing, and I deal
first with this element of the
application.
Condonation
[2] In applications for
condonation, this Court has consistently applied the principles in
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A), where
Holmes JA said the following:
”…
the
basic principle is that the Court has discretion, to be exercised
judicially upon a consideration of all the facts, and in essence
it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor,
the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually decisive,
for
that would be a piecemeal approach incompatible with a true
discretion, save of course if there are no prospects of success
there
would be no point in granting condonation. …What is needed is
an objective conspectus of all the facts. Thus a slight
delay and a
good explanation may help to compensate for prospects of success
which are not strong. Or the importance of the issue
and strong
prospects of success may tend to compensate for a long delay. And the
respondent’s interest in finality must not
be overlooked.”
In
NUM v Council for
Mineral Technology
[1999] 3 BLLR 209
(LAC), the Labour Appeal
Court added a gloss to this approach in respect of cases where the
applicant is unable to furnish a reasonable
and acceptable
explanation for the delay - in this instance, the absence of an
explanation is dispositive of the application, and
the prospects of
success are irrelevant.
[3] The applicant states
that his attorney received a copy of the arbitration award on the
same day that it was issued, i.e. 5 July
2007. The applicant was
informed of the outcome of the arbitration hearing on 16 July 2007,
when he consulted his attorney. The
applicant thereafter instructed
his attorney to proceed with this application. After being advised of
the costs involved, on 21
August 2007, the applicant received a
written estimate from his attorney. He realised that he would not be
in a position to fund
the application, and advised his attorney that
he would be able to do so only after the sale of his house was
finalised. The applicant’s
house was sold in December 2007. On
8 January 2008, he made a payment to his attorney toward the costs
from the proceeds of the
sale. This application was filed five weeks
later, on 15 February 2008. The applicant submits that the
respondents cannot be prejudiced
by what he terms ‘this very
short delay’, that his prospects of success in the main
application are strong, and that
condonation ought therefore to be
granted.
[4] The delay in bringing
this application is considerable. It is far from a ‘very short
delay’ as the applicant has
presumptuously elected to describe
it. The explanation proffered by the applicant is cast in very
general terms and less than detailed.
A delay of some six months in
filing a review application requires a full and proper explanation
from the applicant that covers
the entire period of the delay. This
is not provided by the applicant, who appears content to believe that
this Court was obliged
to await the finalisation of the sale of his
house before he was required to take any steps to prosecute this
review. Further,
it took the applicant’s attorney some five
weeks (almost the full period within which a review application must
be filed)
to file this application after he had been placed in funds.
There is no explanation for this delay, or for what appears to have
been a lack of urgency on the part of the applicant and his attorney,
knowing as they did that the application was already considerably
out
of time. In short, I am not satisfied that the applicant has provided
a full and frank explanation as to his inability to file
this
application timeously.
[5] On this basis alone,
the application for condonation should fail. But even if I were to
extend the benefit of the doubt to the
applicant in this regard, in
any event, for the reasons that appear below, the applicant’s
prospects of success are limited,
if they exist at all. This is
apparent from a consideration of the factual background to this
dispute, the evidence led at the
proceedings under review, the
arbitrator’s award, and the test to be applied by this Court on
review. Each of these elements
is more fully canvassed below.
[6] At the time of his
dismissal, the applicant was a captain in the SAPS. He was dismissed
after being found guilty of corruption
(he was alleged to have
received an amount of R1000 from an illegal immigrant), and of
releasing the illegal immigrant from custody
without good cause. The
respondents contend that on 16 September 2005, Thaienne Fall, an
illegal immigrant, was arrested and detained
in the cells at the
Krugersdorp Police Station. The applicant was the cell commander on
duty that day. The respondents contend
that after Fall paid the
applicant R1000, the applicant released Fall from the cells and
arranged for another officer, Moabi, to
transport Fall to the railway
station. The applicant denies that Fall was detained in the
Krugersdorp police station, and that
he had any interaction with
Fall.
[7] At the arbitration
hearing, five witnesses testified on the respondents’ behalf.
Inspector Wolmarans testified that on
16 September 2005, he was
patrolling the Key West Shopping Centre with Constables Molebatse and
Henene. Wolmarans arrested Fall
for being in the country illegally.
Fall was driven to the Krugersdorp police station and booked into the
cells, with all of the
necessary documentation being completed.
Wolmarans saw Fall the following day in the flea market. He asked
Fall how he had got
out of jail. Fall told Wolmarans that he had
given the captain R1000 and the captain had released him. Wolmarans
then rearrested
Fall. Molebatsi testified that he was with Wolmarans
when Fall was arrested on 16 September. Fall was booked into the
cells. The
following day, Wolmarans telephoned him and informed him
that Fall was again at the flea market. Fall informed them that he
had
been released after paying the applicant and Constable Sokhela.
Fall claimed to have identified the applicant by his nametag. Sokhela
testified that he was working in the cells with the applicant on 16
September. He recalled that Wolmarans arrived at the cells
with
people that he had arrested. On the day, they could not find Fall in
the cells. The applicant instructed him to strike Fall’s
name
from the entry book and to insert Sibande’s name. Moabi
testified that on 16 September, the applicant asked him to take
R100
to Sokhela and asked him to take a man whom he recognised as Fall to
the railway station. He took the money to Sokhela who
asked him to
make sure that Wolmarans did not see him with Fall. He took Fall to
the railway station and left him there. He recognized
Fall because he
had previously arrested him. Superintendent van der Merwe testified
that it was the cell commander’s duty
to enter details of all
detainees in the Occurrence Book. The procedure for scratching out
Fall’s name and inserting Sibanda’s
name was incorrect.
[8] The applicant
testified on his own behalf. His version was that on 17 September, he
was assisting Captain Sokhela by checking
the cells. The number of
people in the cells did not correspond with the register. No person
had been released on his shift. He
did not receive money from any
prisoner arrested that day. The applicant denied knowing Fall and
denied asking Moabi to take Fall
to the railway station.
[9] The arbitrator
summarised the evidence given by all the witnesses. In relation to
statements made by Fall, he found these to
be contradictory, and
concluded that no weight could be attached to them since they had not
been tested in cross examination.
[10] The test to be
applied in a review under s 145 was explained in
Sidumo &
another v Rustenburg Platinum Mines Ltd & others
[2007] 12
BLLR 1097
(CC) in the following terms:
“
The
better approach is that section 145 is now suffused by the
constitutional standard of reasonableness. That standard is the one
explained in
Bato Star
:
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect
not only
to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful,
reasonable and
procedurally fair.”
[11] In his majority
judgment, Ngcobo J (as he then was) had occasion to assess the
principle of fairness in the conduct of arbitration
proceedings. At
para 267, He concluded:
“
[267]
…Fairness in the conduct of the proceedings requires a
commissioner to apply his or her mind to the issues that are
material
to the determination of the dispute. One of the duties of a
commissioner in conducting arbitration is to determine the
material
facts and then to apply the provisions of the LRA to those facts in
answering the question whether the dismissal was for
a fair reason.
In my judgment where a commissioner fails to apply his or her mind to
a matter which is material to the determination
of the fairness of
the sanction, it can hardly be said that there was a fair trial of
the issues.
[268]
It follows therefore that where a commissioner fails to have regard
to material facts, the arbitration proceedings cannot
in principle be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing, in the words of
Ellis
,
the commissioner’s action prevents the aggrieved party from
having its case fully and fairly determined. This constitutes
a gross
irregularity in the conduct of the arbitration proceedings as
contemplated by section 145(2)(a)(ii) of the LRA. And the
ensuing
award falls to be set aside not because the result is wrong but
because the commissioner has committed a gross irregularity
in the
conduct of the arbitration proceedings.”
[12]
Thus, in addition to the result-based test established by
Sidumo
in terms of which an award will only be set aside on review if the
result is incapable of justification on all the material before
the
commissioner, an award will also be reviewable for process-related
reasons, where the commissioner, for example, commits a
(latent)
gross irregularity in the form of a material error of law or the
failure to apply the mind to materially relevant considerations.
In
addition to constituting a (latent) gross irregularity, these errors
also constitute acts of (what may be termed) ‘process-related’
unreasonableness – see:
Minister of Health v New Clicks SA
(Pty) Ltd & others
2006 (2) SA 311
(CC) at para 511;
CUSA
v Tao Ying Metal Industries & others
(2008) 29
ILJ
2461
(CC) at para 134.
[13]
The hurdle set by the
Sidumo
judgment for an applicant in a
review application is high. In
Palaborwa Mining Co Ltd v Cheetham
& others
(2008) 29 ILJ 306 (LAC), the LAC emphasised that
this Court may review a decision taken by an arbitrator if and only
if the decision
is one that a reasonable decision-maker could not
reach. This requires the Court to defer (not in an absolute sense) to
the decision
of the commissioner. The LAC further emphasised the
intention of the LRA that arbitration awards be interfered with only
in limited
circumstances, thus promoting the expeditious resolution
of labour disputes.
[14]
In the present matter, the decision of the arbitrator is
unimpeachable in that, having regard to the evidence, it is not one
which a reasonable decision-maker could not reach. The evidence by
the various witnesses called on behalf of the respondents support
the
conclusions reached by the arbitrator, and the applicant had failed
to adduce any evidence in support of his contention that
each of the
witnesses conspired against him. Neither the outcome nor the process
of the arbitration hearing is impeachable.
[15]
In the absence of a satisfactory explanation for the delay in filing
this application and in view of the applicant’s
limited
prospects of success, the application for condonation fails. There is
no reason why costs should not follow the result.
I
accordingly make the following order:
1.
The application is dismissed, with costs.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
Date
of hearing: 30 September 2009
Date
of judgment: 14 January 2010
Appearances:
For
the applicant: Mr. J M Gouws from Johan Gouws Attorneys
For
the respondent: Adv K Pillay
Instructed
by: The State Attorney