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[2011] ZALCJHB 56
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Anglo Platinum Ltd v Mmapitsa and Others (JR 1072/09) [2011] ZALCJHB 56; [2011] 11 BLLR 1048 (LC) (7 July 2011)
LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case: JR 1072/09
In the matter between:
ANGLO PLATINUM LIMITED
….............................................................................
Applicant
and
NTSIMANE LAMECK MMAPITSA
….........................................................
First
Respondent
MOGALE ATTORNEYS
….........................................................................
Second
Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION
….................................................................................
Third
Respondent
BERNARD VAN ECK (
N.O.
)
…...................................................................
Fourth
Respondent
JUDGMENT
LAGRANGE, J:
Introduction
This is an application in terms of Rule 11 of the Labour Court
rules to dismiss a review application of an arbitration award.
Since the matter first came to court on 8 February 2011, this is
the fifth time it has been set down.
On 8 July 2009 the first respondent, Mr Mmapitsa, launched a review
application against an award issued by the CCMA on 16 February
2009. The arbitrator had found Mmapitsa’s dismissal by the
applicant to have been substantively and procedurally fair.
The
review proceedings were launched approximately nine weeks outside
of the six-week time period for filing a review application.
The
employer’s attorneys advised Mogale attorneys, Mr Mmapitsa’s
attorneys at the time, that he would have to file
a condonation
application for the late filing of his review application.
The CCMA filed a copy of the record with the registrar of the court
in September 2009, but despite a number of requests from
the
company’s attorneys the only response received from Mogale
attorneys was that they were not in possession of records
from the
CCMA. Remarkably, given that it was the first respondent’s
duty to uplift and transcribe the record, his attorneys
further
advised the company’s attorneys to obtain the record
themselves from the CCMA.
On 12 April 2010, the company launched the application to dismiss
the review application, having warned Mogale attorneys that
it
would apply to have the review application dismissed because the
record of the arbitration proceedings had not been filed.
The application was set down on the unopposed roll on 8 February
2011. A few days before the hearing, Mmapitsa claims that
he
attended the offices of his erstwhile attorneys where he was
advised by Mogale attorneys that he would have to pay them
an
amount of R 10,000 in fees if he wanted them to proceed with the
matter, despite the fact that he believed his litigation
was being
funded by the insurer Legalwise. As he was unable to pay such an
amount, Mogale attorneys would not appear and he
had to represent
himself on 8 February 2011. By that late stage, still no record had
been filed, nor had a condonation application
for the late service
of the review application been served.
On 8 February 2011, the court issued a
rule nisi
, returnable
a week later on 15 February, calling upon Mogale attorneys to show
why a costs order should not be granted against
them and why the
first respondent should not be refunded any fees he had paid them.
Mogale attorneys were also called upon
to show cause why the matter
should not be referred to the Law Society for investigation
regarding their handling of the first
respondent's application and
their failure to appear in court at the first hearing date.
At the postponed hearing on 15 February 2011, Mmapitsa was
represented by new attorneys and the rule was extended to 18 March
2011. In addition, Mogale attorneys were ordered to provide an
explanation on the return day, why no written explanation was
furnished for their conduct in the matter. Mogale Attorneys were
also ordered to pay the costs occasioned by the extension
of the
rule nisi
on an attorney and client scale. The dismissal
application was deferred until 18 March 2011 to allow Mmapitsa an
opportunity
to file his overdue condonation application in respect
of the late review proceedings. It must be mentioned that, as far
back
as July 2009, Mmapitsa’s attorneys had been reminded by
the applicant’s attorneys of the need to file the condonation
application.
On 18 March 2011, it appears that part of the
rule nisi
of
15 February 2011 was confirmed, and the first respondent's
erstwhile attorneys were also ordered to pay the costs of the
proceedings on that day. The issue of the wasted costs in the
dismissal application was postponed until the application was
decided.
The matter was next set down on 30 March 2011 but was again
postponed to 12 May 2011, due to the non-appearance of the
Mmapitsa’s
new attorneys of record. Following what has become
a pattern in these proceedings, the new attorneys were ordered to
pay the
wasted costs of 30 March 2011 hearing on a scale
de
boniis propris
and to file an affidavit explaining their
non-appearance on that occasion.
On 12 May 2011, the fifth and final day scheduled for this hearing,
the dismissal application finally fell to be determined.
On 4 March
2011, the first respondent belatedly filed his condonation
affidavit for the late filing of the review application,
some
twenty-three months after it should have been done.
Evaluation
The delays in prosecuting the review application
The first striking fact is that there is no evidence Mmapitsa
directed any enquiries to his attorneys about the progress of
his
matter between 23 April 2009, when he deposed to his founding
affidavit, and on 5 February 2011, when he consulted with
his
attorneys again. While his erstwhile attorneys’ conduct
appears to have been grossly negligent, it also cannot be
said that
Mmapitsa made any attempt to make sure that the matter was
progressing. The consultation on 5 February 2011, when
the first
hearing was upon them, was initiated not by him but by his
attorneys. Mogale Attorneys’ own conduct in failing
to reply
to the enquiries from the applicant’s attorneys about the
filing of the record and advising the latter to obtain
a copy of
the record themselves from the CCMA demonstrates that they
conducted the proceedings with a reckless disregard for
their own
client’s best interests and for the rules of this court.
The record was available for transcription in September 2010. To
date, it has still not been filed. This alone is sufficient
reason
for not prolonging this matter any further in my view. In addition,
there is no proper explanation for the initial delay
in launching
the review proceedings, nearly two months late. In other words,
after the arbitration award had been handed down,
it took the first
respondent nearly three-and-a-half months to launch the review
application. The applicant did have legal
insurance and, at least
in the initial stages of this litigation, legal costs ought not to
have been an obstacle to him proceeding
with the matter.
Mmapitsa essentially cannot provide any explanation for the late
filing of the review application, but attributes any blame
for this
to his former attorneys. There is no indication that he attempted
to obtain the explanation from them when he finally
consulted them
on 5 February 2011.
Merits of the review application
The award
It is not necessary for the purposes of this application to
determine if Mmapitsa would probably succeed with his review
application. It is simply enough to consider whether he has
reasonable prospects of doing so. The only material available to
the court on the merits of the review is the arbitration award
itself, the founding affidavits in the review application and
what
can be gleaned from the employer’s affidavits.
Mmapitsa was found guilty of soliciting and receiving money from
two job applicants at the company in return for promises that
he
would ensure that the job applicants passed certain physical
pre-recruitment tests, which the employer conducted.
The arbitrator’s evaluation of the evidence led him to
conclude that the employer's version was the most probable one
in
the circumstances. He found the evidence of the employee
complainants to be "most convincing", and dismissed the
applicant's evidence as "a pack of lies". While the
arbitrator’s characterisation of the applicant’s
evidence is described in unnecessarily emotive terms, he justifies
his conclusion, saying that the complainants gave consistent
versions of what transpired on the day in question, whereas
Mmapitsa’s evidence was simply a blanket denial. Mmapitsa's
defence was merely that he had never met the two complainants in
his life. This bald denial contrasted with their elaborate
and
detailed evidence.
Of course if nothing of the kind had happened, as Mmapitsa
testified, then the inescapable conclusion which follows from that
is that there must have been an elaborate scheme that was devised
to falsely implicate him. Nothing in the arbitrator’s
account
of the evidence reveals that Mmapitsa provided any explanation why
false claims would have been made by the two complainants,
nor why
the company would have tried to persecute him. He merely testified
that he had never met the complainants before the
hearing. By
contrast, it is easier to understand why the complainants would
have reported the matter if their evidence was
true: they had been
promised that they would "pass" the physical tests in
return for making certain payments to Mmapitsa.
In both cases, they
alleged he had not kept his side of the deal, whereas they had both
paid him an amount of R 250-00. In
consequence, they would have
been out of pocket without anything in return for their outlay.
There was also additional evidence given by one Ms Masemong, a girl
friend of one of the complainants. She claimed that she
had taken
money at the request of one of the complainants to the mine
hospital and handed it to a man wearing a Bafana Bafana
t-shirt.
She said she never met the individual before, but could recognise
him at any time afterwards. The complainant in question
had
described Mmapitsa to her as a person wearing the t-shirt. The
arbitrator found that Masemong’s evidence and the
complainant’s evidence corroborated each other and he had no
doubt that the person wearing the Bafana Bafana t-shirt
on that day
in question, who accepted the money from Masemong, must have been
Mmapitsa.
The grounds of review
As is often the case in review applications, some of Mmapitsa’s
grounds of review are stated in the broadest terms. Where
no
factual basis for these claims has been provided they cannot be
taken seriously. Apart from these generalised grounds of
review,
Mmapitsa does advance a few more specific ones. The company rightly
criticises some of these grounds as being, properly
speaking,
grounds of appeal rather than grounds of review.
Mmapitsa complains that the arbitrator took no account of his
record and the prejudice he would suffer if dismissed. However,
the
arbitrator notes in paragraph [3.9] of his award that the only
issue disputed by Mmapitsa at the arbitration was the finding
of
guilt. There is no basis advanced to suggest any other contention
was raised before the arbitrator regarding the substantive
fairness
of his dismissal. In the circumstances, I have no factual basis for
believing that the arbitrator was expected to
determine any other
issue in relation to the fairness of the dismissal, and this ground
of review must fail.
The other specific grounds of review raised by Mmapitsa all relate
to the arbitrator’s assessment of the evidence of
Masemong in
identifying him as the person to whom money was given at the
hospital. Essentially he feels that the arbitrator
did not give
proper consideration to her evidence by which he was identified
solely as the person wearing a Bafana Bafana t-shirt
to whom she
gave the money. He points out that there could have been other
persons wearing such a t-shirt and that this was
the only basis on
which he was identified. As mentioned, the applicant approaches
this issue more in the form of a ground of
appeal, but I will
assume for the purposes of assessing the merits of his review
application, that he is simply saying the
arbitrator failed to have
regard to the evidentiary value of this portion of her testimony.
I cannot say the arbitrator’s evaluation of Masimong’s
evidence about the recipient of the money wearing a Bafana
Bafana
t-shirt in some way entailed the commission of a reviewable error.
The arbitrator clearly considered the two key pieces
of Masimong’s
evidence: she said she had been told to give the money to a man
wearing such a t-shirt at the hospital,
and that such an individual
accepted the money, apparently without question or query. Moreover,
the arbitrator found that Masimong’s
evidence and that of the
complainant, Mr Palahadi, corroborated each other. Accordingly,
Masimong’s evidence was clearly
evaluated in the context of
Palahadi’s own evidence that he had asked Masimong to give
the money to a man wearing a Bafana
Bafana t-shirt. Against
Mmapitsa’s bald denial of interacting with either of them, he
found their version was more probable
in his view. To suggest that
Mmapitsa was identified merely by the t-shirt he wore is to
oversimplify the context in which
Masimong’s evidence was
given. She not only saw such a person but gave money to him in
accordance with Palahadi’s
instruction.
Mmapitsa also takes issue with the fact that the arbitrator did not
appear to have treated Masimong’s evidence with caution
when
he ought to have given the ‘manner in which she was brought
into the proceedings’. Once again, why this would
constitute
a ground of review rather than one of appeal is difficult to
fathom, but I will assume Mmapitsa is attacking whether
or not the
arbitrator was reasonable in not treating her evidence with
caution.
In the absence of elaboration by Mmapitsa, the ‘manner’
in which Masimong came to testify at the arbitration, can
only
refer the fact that she was subpoenaed to give evidence at the
arbitration. The fact that she was subpoenaed to give evidence
suggests she might have been reluctant to testify. A reluctance to
testify can be for many reasons, and there is no evidence
before me
to suggest that the particular reason for having to subpoena
Masimong should have raised concerns about the reliability
of her
testimony. Certainly, there is no general rule that a subpoenaed
witnesses’s evidence must necessarily be treated
with
caution.
In the result, the specific grounds of review raised by Mmapitsa,
if indeed they qualify as such, are insubstantial and it
cannot be
said he has demonstrated reasonable prospects of succeeding.
In the circumstances, the arbitrator’s conclusions seem
entirely reasonable ones to have drawn.
Conclusion
Mr Mmapitsa and his former attorneys are jointly responsible for
inordinate delays in prosecuting the matter, for which no
reasonable explanation is given. Even at this late stage, a record
of the arbitration proceedings has still not been filed.
Secondly
the merits of the review application, on the material before me are
not at all promising. In the circumstances, there
is no good reason
advanced for the various delays in the matter and the first
respondent himself is far from blameless, irrespective
of the
negligence of his former legal representatives. Even if the merits
in this matter were sparkling, I believe the court
would be
condoning an abuse of court process to allow the review application
to proceed any further. All things considered,
the review
application stands to be dismissed.
Costs
The applicant’s current attorneys of record, Phambane Mokone
Incorporated, did not file an explanatory affidavit regarding
their
failure to attend the previous proceedings on 30 March 2011. In the
circumstances, I see no reason why they should not
also have to pay
the applicant’s wasted costs of attending and representing
the applicant at the hearing on 12 May 2011,
since no justification
has been provided why the matter could not proceed on 30 March
2011.
Order
Consequently the following order is made:
The first respondent’s review application in respect of the
arbitration award issued by the fourth respondent on 16
February
2009 under case number LP 3863-07 is dismissed.
The first respondent’s attorneys of record are ordered to
pay the applicant’s costs of representing the applicant
on
15 March 2011.
R
LAGRANGE, J
JUDGE
OF THE LABOUR COURT
Date
of hearing: 12 May 2011
Date of judgment: 07 July 2011
Representation
For
the Applicant: I Gwaunza
of
Edward Nathan Sonnenberg
For the Respondent:
T Makgate instructed by
Phamabane Mokone Attorneys