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[2011] ZALCJHB 180
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National Union of Mineworkers and Another v Tokiso Dispute Settlement (Pty) Ltd and Others (JR 397/09) [2011] ZALCJHB 180 (22 March 2011)
Not reportable
Of interest to other judges
in
the labour court of South Africa
held
at BRAAMFONTEIN
case
no: jr 397/09
In the matter between:
NATIONAL
UNION OF MINEWORKERS First applicant
LOT
ZWANE Second applicant
and
tokiso
dispute settlement (pty) ltd First respondent
KATE
SAVAGE N.O. Second respondent
GOEDEHOOP
COLLIERY Third respondent
judgment
STEENKAMP J:
Introduction
This is an application to review a private arbitration award under
the auspices of Tokiso (the first respondent) by the arbitrator,
Kate Savage (the second respondent). The arbitrator found that the
dismissal of Mr Lot Zwane (the second applicant) by Goedehoop
Colliery (a division of Anglo Operations Ltd), the third respondent,
was fair.
application of the arbitration act
The arbitration was conducted under the auspices of Tokiso Dispute
Settlement (Pty) Ltd as a private arbitration. The parties
–
NUM (the first applicant) and Goedehoop Colliery – specified
the terms of reference as follows:
“
The issue which the
arbitrator must determine is whether, in the arbitrator’s
opinion,
Was the supervision recommended
by the doctor provided
Was he still fit to perform his
duties with that responsibility because of his condition
Was the company right to charge
him or was it suppose [
sic
] to send him for assessment
knowing his previous condition.”
The terms of reference are not entirely clear and are poorly
drafted, but it is common cause that “he” refers to
the
second applicant, Lot Zwane.
In another review application of a private arbitration award
involving the same arbitrator,
Clear Channel Independent (Pty)
Ltd v Savage NO & another
1
,
Molahlehi J held that the norms that apply in reviews of private
arbitrations are those found in the provisions of s 33 of the
Arbitration Act
2
and that the wider test of review envisaged in s 145 of the LRA
3
is not applicable to private arbitrations.
This
dictum
is important when considering the grounds of
review. Firstly, however, I need to deal with the aspect of
condonation.
condonation
In terms of s 33(2) of the Arbitration Act, an application for
review in terms of that Act “shall be made within six weeks
after the publication of the award to the parties.”
According to the union (the first applicant), it received the award
on 9 October 2008. The review application should have been
filed by
20 November 2008. Instead, the union only delivered the application
for review, together with an application for condonation,
on 24
February 2009 – more than three months outside of the
statutory time limit of six weeks.
I shall deal with the application for condonation in terms of the
well-known principles set out in
Melane v Santam Insurance Co
Ltd.
4
I should add that the third respondent’s answering
affidavit was also delivered some 25 days late. It has also applied
for
condonation. I will first deal with the applicant’s
application for condonation and then with that of the third
respondent.
Extent of the delay
As set out above, the review application was delivered more than
three months outside of the already generous statutory time
limit of
six weeks. To say that this is an excessive delay, is to state the
obvious.
As the Labour Appeal Court stated in
NUM v Council for Mineral
Technology:
5
"There is a further
principle which is applied and that is 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, the application
for condonation should be
refused."
I therefore have to consider the explanation for the delay and the
prospects of success.
Explanation for the delay
Mr Zwane has been represented by the National Union of Mineworkers
(the first applicant) throughout – both at arbitration
and in
the review application. The NUM, who is itself a party to these
proceedings, is entirely to blame for the delay.
The deponent to the founding affidavit, Mr Rakau, who is the legal
unit head of the NUM, says that "the matter only came
to my
attention in the second week of November 2008." He does not
explain why this should be the case, as he also states
that the
award was received by the union on 9 October 2008.
As the head of the legal unit, Rakau must have realised in
mid-November 2008 that the six-week period for launching a review
application was already about to expire. But this factor did not
prompt him to act with any haste. Instead, he says: "At
the
time I had a tied [
sic
] schedule, and was only able to read
the file on the 18th day of November 2008." I should add that,
at that stage, the union
had not requested a record of the
arbitration proceedings. It is therefore not clear what "file"
Rakau had to read.
In reality, he only needed to read the
arbitration award, comprising all of eight pages.
Rakau goes on to say that he could not decide whether or not there
were prospects of success. As will become clearer later, his
doubts
were well founded. Inexplicably, though, he says that he then
"looked for an advocate" to give him an opinion
on the
prospects of success. Even though he is the head of the legal unit
of the union, he could not have briefed counsel directly.
He would
have had to have instructed an attorney. Yet he does not state when
he instructed his current attorneys or anyone else.
What Rakau does go on to say, is that it could not find an advocate
because "all were closing down for the festive season".
According to him, he then instructed counsel [apparently directly]
who was only going to be able to "attend to the matter”
in the third week of January 2009. Neither Rakau nor his putative
counsel – whom he does not name – explains why
the
"festive season" is deemed to last from 18 November to
the third week of January, or why no attorney or counsel
in South
Africa should be available to provide an opinion on the prospects of
success of a review application pertaining to an
eight page
arbitration award for more than two months. This should also be seen
against the background that Rakau is the legal
unit head of one of
the largest trade unions in the country, a frequent litigator in
this court, who must be well aware of the
fact that there are no
dies non
during the so-called festive season in this court.
Only on 2 February 2009 did the unnamed counsel provide the union
with an opinion to the effect that the matter had prospects
of
success on review. It then took another three weeks to file the
review application, despite the fact that it was already out
of
time. Rakau states that: “The earliest date [to consult]
suitable to our attorney, Makinta, was the 16th day of February
2009. He then took our instructions on the 16th day of February
2009, and prepared the application from the 17th – 23rd
day of
February 2009." Why this attorney could not have prepared the
application in the first place, and why it should have
been
necessary to brief counsel, is not explained. Neither does Rakau or
his attorney explain why it should take a further week
to draft a
fairly simple – albeit defective, as will become clearer later
– review application comprising 14 pages.
The explanation for the delay is wholly inadequate.
Prospects of success
At the hearing of this application, and with the consent of the
parties, I indicated that I would hear full argument on the merits
of the review application, rather than deciding the two condonation
applications
in limine
,
as both parties were fully
prepared on the merits and it would have led to an unnecessary delay
to decide only the condonation
applications on the day of the
hearing.
As will become apparent from my view of the merits of the review
application, the applicants have no prospects of success. The
applicants' application for condonation must therefore be dismissed,
given the excessive delay, the inadequate explanation therefor,
and
the absence of prospects of success. However, I will deal with the
merits under a separate heading.
The third respondent’s condonation application
The third respondent applied for condonation for the late filing of
its answering affidavit. The applicants' supplementary affidavit
in
terms of rule 7A(8) was only filed on 10 June 2010. Tokiso delivered
the record on 25 February 2009. The applicants do not
explain why it
took them 16 months to comply with rule 7A(8).
The answering affidavit was delivered on 2 August 2010, i.e. some 25
days late.
The explanation for the delay is that Mr Paolos Soviya, the
erstwhile employee relations manager at Goedehoop Colliery who was
instructing the attorneys, had been transferred and it was difficult
to obtain instructions from him. Furthermore, Mr Phethane,
the
erstwhile shift boss who was also the complainant at the
disciplinary hearing, had to advise the attorneys on technical
aspects raised in the supplementary affidavit. He had left the
employ of Goedehoop and it took some time to find him.
The explanation for the delay is not unreasonable and should be
considered together with the extent of the delay, which is not
excessive; the applicants' own excessive tardiness in filing the
supplementary affidavit, which has the effect that there can
be no
real prejudice to them; and the prospects of success, which
overwhelmingly favour the third respondent.
Condonation is granted for the late filing of the answering
affidavit.
the merits
The applicants purport to bring the review application in terms of
ss 145, 157 and 158 of the LRA. They submit that the arbitrator
“committed misconduct, gross irregularities and exceeded his
[
sic
] powers”. The deponent to the founding affidavit,
Rakau, goes on to say:
“
It is an inevitable and
foregone result of the evidence on record, that the arbitration
proceedings and the conclusions reached,
were defect [
sic
] and
incorrect respectively.”
I have already referred to the judgment of Molahlehi J in
Clear
Channel Independent (Pty) Ltd.
6
There, he made it clear that the review test in s 145 of the LRA
is not applicable to private arbitrations,
inter alia
with
reference to
Telcordia Technologies v Telkom SA Ltd
7
,
which was in turn referred to by Navsa AJ in
Sidumo
8
when he said:
“
Compulsory arbitrations
in terms of the LRA are different from private arbitrations. CCMA
commissioners exercise public power which
impacts on the parties
before them. In the language of the pre-constitutional administrative
law order, it would have been described
as an administrative body
exercising a quasi-judicial function. I conclude that a commissioner
conducting a CCMA arbitration is
performing an administrative
action.”
Molahlehi J in
Clear Channel
came to the conclusion that the
test as set out in
Telcordia
applies in private labour
disputes. The test as set out in that case
9
is as follows:
“
By agreeing to
arbitration parties to a dispute necessarily agree that the fairness
of the hearing will be determined by the provisions
of the
[Arbitration] Act and nothing else. Typically, they agree to waive
the right of appeal, which in context means that they
waive the right
to have the merits of their dispute relitigated or reconsidered. They
may, obviously, agree otherwise by appointing
an arbitral appeal
panel, something that did not happen in this case.
Last, by agreeing to arbitration
the parties limit interference by courts to the ground of procedural
irregularities set out in
s 33(1) of the Act. By necessary
implication they waive the right to rely on any further ground of
review, ‘common law’
or otherwise. If they wish to extend
the grounds, they may do so by agreement but then they have to agree
on an appeal panel because
they cannot by agreement impose
jurisdiction on the court.”
Molahlehi J went on to say, quite correctly, that the grounds of
review as set out in s 33(1) of the Arbitration Act can only
be
extended by agreement between the parties. They could agree that the
grounds of review should include the reasonable decision-maker
test
as set out in
Sidumo
; but in the absence of such an
agreement, the review grounds are restricted to those in s 33 of the
Arbitration Act.
Those grounds are the following:
“
(a) [A]ny member of the
arbitration tribunal has misconducted himself in relation to his
duties as an arbitrator; or
(b) an arbitration tribunal has
committed any gross irregularity in the conduct of the arbitration
proceedings or has exceeded his
powers; or
(c) an award has been improperly
obtained.”
In the present case, the parties have agreed to terms of reference
for the private arbitration, as set out above. They have not
agreed
to include the
Sidumo
test. The grounds of review are
therefore limited to those set out in s 33 of the Arbitration Act.
The applicants have framed their review application in terms of ss
145 and 158 of the LRA. The third respondent has submitted
that the
review application is fatally defective for that reason alone. I
take into account, though, that the applicants have
alleged in their
pleadings that the arbitrator has committed misconduct, gross
irregularities and that she has exceeded her powers.
Insofar as
those grounds of review are included in s 33 of the Arbitration Act,
I shall consider them in that context.
Misconduct
For misconduct to have taken place, there must have been some
wrongful or improper conduct on the part of the arbitrator which
may
be categorised as mishandling the arbitration tantamount to a
substantial miscarriage of justice.
10
Examples of misconduct would be to ignore the principles of natural
justice or to be careless in the manner in which the arbitration
is
conducted.
It is not clear from the applicants’ pleadings or their heads
of argument what misconduct is alleged. They make sweeping
statements that the arbitrator “made mistakes so gross that
they could not have been made without some degree of misconduct.”
In oral argument, Mr
Maunatlala
, for the applicants, argued
that the arbitrator should have found that Zwane had a medical
condition that incapacitated him,
in the sense that he did not have
the mental judgment to carry out his duties properly.
It emerged in evidence before the arbitrator that Dr Alberts, of the
Anglo Coal Highveld hospital, recommended that Zwane “work
under supervision / with a co-worker” for one month, from 26
March to 26 April 2007. This was because he had been diagnosed
with
meningitis.
Almost a year later, on 11 March 2008, Zwane pleaded guilty (in a
disciplinary enquiry) to misconduct of working under an unsupported
roof. He was dismissed for this misconduct. Zwane never complained
of mental instability or illness, nr was any such instability
noted
by his supervisor, Petlane.
The arbitrator found on this evidence that the company was entitled
to discipline Zwane. She also found that his misconduct was
serious,
given its potentially fatal consequences; and that the ultimate
decision to dismiss him, after the disciplinary hearing,
was fair.
There is nothing in the award, in the typed record of the
arbitration proceedings or in the arbitrator’s handwritten
notes that suggest any form of misconduct. The arbitrator conducted
the arbitration process fairly and she considered all the evidence,
properly presented, before coming to an entirely rational finding.
Even if the parties had incorporated the
Sidumo
test in the
terms of reference, I would have found that the award was
reasonable.
Gross irregularity
The applicants have not made out any grounds for a gross
irregularity in the arbitration proceedings. The arbitrator
considered
her terms of reference and the evidence before her. She
came to the conclusion that Zwane was fit to perform his duties and
that
the company could charge him for misconduct. There is nothing
irregular about the process or, indeed, her conclusions. Neither
did
she exceed her powers under the arbitration agreement.
Award improperly obtained
The applicants have not alleged that the award was improperly
obtained. Neither is there any evidence to that effect.
It follows that the application for review must fail. In the context
of the condonation application, it is axiomatic that the
applicants
had no prospects of success.
costs
The applicants have dragged their feet in pursuing this application
for review and the accompanying application for condonation,
in
spite of the fact that the NUM has been representing Mr Zwane
throughout. When they eventually did deliver the review application,
it was legally flawed. The application never had any prospects of
success. This much must have been clear to the head of the
legal
unit , Mr Rakau, when he declined to express a view on the prospects
of success in November 2008.
The third respondent also filed its answering affidavit late.
Although I have condoned the late filing, the applicants should
not
be held liable for any costs related to the late filing of that
affidavit and the third respondent’s subsequent application
for condonation.
With regard to the rest of the ill-considered application, though,
it is my view that, in law and fairness, the NUM should be
held
liable for the third respondent’s unnecessary costs. The third
respondent submitted that the applicants should be
ordered to pay
its costs jointly and severally. I do not agree. Mr Zwane has not
been well served by his union. He should not
be held jointly liable.
Despite the ongoing relationship between NUM and Goedehoop Colliery,
though, the union should pay the
company’s costs on a
party-and-party scale.
conclusion
The applicants’ application for condonation is dismissed.
The third respondent’s application for condonation is granted.
The application for review is dismissed.
The first applicant is ordered to pay the third respondent’s
costs, save for the costs occasioned by the late filing of
the
answering affidavit and the third respondent’s application for
condonation.
_______________________
STEENKAMP J
Date of hearing:
18 February 2011
Date of judgment:
22 March 2011
For the applicants:
Adv MI Maunatlala
Instructed by ES Makinta attorneys
For the respondent:
Adv AL Cook
(Heads of argument having been drawn by
Adv F Venter)
Instructed by Cliffe Dekker Hofmeyr Inc
1
(2009) 30
ILJ
1593
(LC) para [36]
2
Act 42 of 1956
3
The Labour Relations Act, Act 66 of 1995
4
1962 (4) SA 531
(A) 532 A-F
5
[1999] 3 BLLR 209
(LAC)
6
supra
7
2000 (3) SA 266
(SCA)
8
Sidumo v Rustenburg Platinum Mines Ltd
(2007) 28
ILJ
2405
(CC) para [88]
9
Supra
paras [50]
– [51]
10
Naraindath v CCMA
(2000)
21
ILJ
115
(LC)