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[2010] ZALCJHB 22
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South African Police Services v Nxumalo and Others (JR1330/07) [2010] ZALCJHB 22 (19 August 2010)
iAfrica
Transcriptions (Pty) Limited
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO
: JR1330/07
DATE:
2010-08-19
In
the matter between
SOUTH
AFRICAN POLICE
SERVICES Applicant
And
CAPTAIN
NXUMALO &
OTHERS Respondent
O R D E R
STEENKAMP,
J
:
This
is an application to review and set aside the ruling of the third
respondent, who is an arbitrator, under the auspices of the
second
respondent, the Safety and Security Sectoral Bargaining Council.
The award was made on 11 April 2007, under case number
PSSS868-06/07. That ruling deals only with an application for
condonation made by the employee, who is the first respondent
in this
application, Captain Joel Nkoniseni Nxumalo.
In
his ruling, the arbitrator found that there was in fact no need for
the employee to have applied for condonation because, so
the
arbitrator found, his referral was not out of time. He did so
on the basis that the employee was only notified about
the outcome of
his appeal on 1 February 2007 and not, as the applicant in
this review application argues, on or about
20 December 2005.
It
is, however, common cause that the employee was represented
throughout his disciplinary hearing and at arbitration by his trade
union and that the trade union was informed of the outcome of the
employee’s appeal hearing by 20 December 2005.
Mr
Makare
,
who appears for the applicant, has argued that in making the ruling
he did, the arbitrator committed a gross irregularity in that
he
failed to appreciate that there was a need for an application for
condonation. Mr Makare further argued that the arbitrator
committed an error of law, which of course on its own constitutes
reviewable conduct. In this regard he referred me to the
fairly
recent Supreme Court of Appeal case of the
Pepcor
Retirement Fund v Financial Services Board
2003 (3) ALL SA 21 (SCA). In that case the Supreme
Court of Appeal applied the well known
dictum
set out in
Hira v Booysen
1992 (4) SA 69
(A) 93B C.
Mr
Makare further argued that that made the award reviewable, also on a
test of unreasonableness as set out in the now well known
case of
Sidumo v Rustenburg Platinum Mines
(2007) (21)
ILJ
2405 (CC).
It
appears evident to me that the employee’s union was properly
informed of the outcome of the appeal hearing in circumstances
where
he was represented by his union, and that also is common cause.
It was grossly unreasonable of the arbitrator not to
take that fact
into account. I am satisfied that that finding was so
unreasonable that it is not one that a reasonable arbitrator
could
reach.
Mr
Makare agreed with me that, should I find that the award is
reviewable, this is a matter that should properly be referred back
to
the Bargaining Council for another arbitrator to decide afresh.
With
regard to costs, I take into account that the employee is an
individual. He has had to incur his own legal costs in order
to
defend an award that was made in his favour, albeit erroneously.
In law and fairness, I do not deem it proper to saddle
him with a
further costs order.
In
those circumstances, I make the following order:
1.
The condonation ruling of the third
respondent dated 11 April 2007 under case number PSSS868-06/07 is
reviewed and set aside;
2.
The matter is referred back to the second
respondent, the Safety and Security Sectoral Bargaining Council, for
a hearing
de novo
before a different arbitrator;
3.
There is no order as to costs.
---oOo---