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[2011] ZALCJHB 153
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Westmead Carriers CC v Geviseer NO and Others (JR924/05) [2011] ZALCJHB 153 (10 November 2011)
Not
reportable
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR924/05
In the matter between:
WESTMEAD CARRIERS
CC
Applicant
and
GEVISSER A, N.O
First Respondent
NATIONAL BARGAINING
COUNCIL FOR
ROAD FREIGHT
INDUSTRY
Second Respondent
J E
MAHLABA
Third Respondent
Heard:
1 November 2011
Delivered:
10 November 2011
JUDGMENT
SAVAGE AJ
Introduction
[1]
This is an application to review and set aside a ruling made by the
first respondent (‘the commissioner’)
on 15 February 2005
in terms of which the application brought by the applicant to rescind
a default arbitration award which had
been made in favour of the
third respondent was dismissed.
[2] The default
arbitration award issued by the commissioner is dated by him as
having been made on 9 November 2004. The applicant
thereafter applied
for the rescission of this award. In support of the rescission
application, the applicant filed the affidavit
of Mr Devanandan
Pillay. In his affidavit Mr Pillay stated that both he and the human
resources manager were unavailable on the
date of the arbitration
hearing and that an employee, Mr Neresh Sewpersad, was sent to the
bargaining council’s offices on
the date of the arbitration
hearing following ‘numerous attempts’ to postpone the
matter. Mr Pillay stated only that
the applicant had good prospects
of success in the matter but took the issue of prospects no further.
He submitted that the applicant
had been prejudiced in the matter.
Rescission application
ruling
[3]
In dismissing the rescission application, the first respondent
concluded that:
3.1. the applicant was
aware that the respondent had not consented to a postponement but
nevertheless informed the bargaining council
via letter that it could
not attend “due to prior arrangements” and proposed an
alternative date for the arbitration
hearing;
3.2. the suggestion by
the applicant that it tried to comply with the rules must be viewed
”with suspicion” given the
context of the letter sent to
the bargaining council and that the attitude of the applicant that it
could unilaterally decide when
it would attend was unacceptable;
3.3. the applicant
failed to explain the unavailability of personnel and there is no
confirmatory affidavit corroborating Mr Pillay’s
version or
explaining why this was;
3.4. it was “somewhat
peculiar” that the applicant’s employee failed to attend
the arbitration hearing when the
applicant contends that such person
was to attend;
3.5. the prospects of
success had not been dealt with and the applicant failed to take the
bargaining council into its confidence
in this regard, instead
providing “unsubstantiated explanations and submissions.”
Power to rescind
[ 5]
Section 144(a) of the Labour Relations Act gives a commissioner the
power to rescind an arbitration award
‘
erroneously
sought or erroneously made in the absence of any party affected by
that award
.’
In considering an
application for rescission, a commissioner is required to consider
whether the applicant has shown good cause
to justify the granting of
rescission, including whether the applicant was in wilful default of
the arbitration process and that
the applicant has a
bona
fide
defence to the claim or reasonable prospects of success
in the claim should the arbitration award be set aside.
See
Emfuleni
Local Municipality v Sekhabisa N.O and Others
(JR2397/06)
[2008] ZALC 58
(18 April 2008
).
[6]
While the applicant is not required to deal fully with the merits of
the case, it is incumbent upon an applicant
for rescission to show
that there exists a bona fide defence to the claim which has
reasonable prospects of succeeding were rescission
to be granted.
This requires of an applicant more than simply an averment that there
exist prospects of success without any further
substantiation of the
statement. The purpose of requiring an applicant to show the
existence of a bona fide defence to a claim
or reasonable prospects
of success is a well-founded one in that it seeks to prevent a
rescission application from being granted
where there exist no, or
very limited, prospects of success in the matter when later
adjudicated. This in turn obviates the unnecessary
time and expense
that would then be incurred in the hearing of the matter, where a
rescission ought to be granted, with no bona
fide defence or
prospects of success.
[7]
In terms of Rule 33.9 (a) of the bargaining council Rules for the
Conduct of Processes and Proceedings before
the NBCRFI (ver. 10/06),
applicable at the time that this rescission application was
determined, the council is required to allocate
a date for the
hearing of the application once a replying affidavit has been
delivered, or once the time limit for delivering a
replying affidavit
has lapsed, whichever occurs first. Mr Snyman argued for the
applicant that the bargaining council had contravened
the rule by
failing to set the matter down for hearing. Rule 33.10 states that
“[d]espite this rule, the Commissioner may
determine an
application in any manner it deems fit, and in particular may have
applications determined on the papers delivered
with hearing and
agreement”.
Review test
[8]
This court, with reference to the grounds of review, is entitled to
set aside an arbitration award or ruling
if the commissioner’s
decision falls outside of a band of decisions to which a reasonable
person could come on the available
evidence (see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others).
1
It is accordingly not the correctness of the commissioner’s
decision which is relevant but whether the result of the arbitration
proceedings is reasonable.
[9] In
Bestel
v Astral Operations Ltd and Others,
2
Davis JA emphasised:
‘…
that
the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to
be correct by
the reviewing court; that is whatever this Court might consider to be
a better decision is irrelevant to review proceedings
as opposed to
an appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[10] The test in
Sidumo
for determining whether a decision is reasonable is a stringent one
that will ensure that awards are not lightly interfered with.
3
Clearly, an award that is unsupported by any evidence, is based on
speculation, is disconnected from the evidence or is made without
appropriate consideration of evidence may be considered
unreasonable.
4
Grounds of review
[11] The applicant has
raised a number of grounds of review:
11.1. The commissioner
failed to comply with the provisions of the Act pertaining to the
conducting of fair and proper arbitration/rescission
proceedings;
11.2. The commissioner
made no proper factual findings whatsoever in respect of the evidence
and documents properly placed before
him in the matter;
11.3. The commissioner
exceeded his powers in terms of the Act;
11.4. The commissioner
did not properly, rationally and justifiably apply his mind to the
facts or the law and failed to comply
with the fundamental principle
of audi alteram partem;
11.5. The commissioner
failed to properly apply the provisions of the Constitution;
11.6. The commissioner
failed to afford the applicant a hearing at all in the circumstances;
11.7. The award is not
justifiable in relation to the reasons given for such award and is
not rational or justifiable in its merit
or outcome;
11.8. The commissioner
failed to properly, justifiably and reasonably determine and assess
the evidence properly before him in the
matter.
11.9. The award
constituted a defect as contemplated by section 158(1)(g) and should
be reviewed and set aside.
Evaluation
[12] Apart from a bald
averment that it held prospects of success in the matter, the
applicant provided no further details to show
the existence of any
such prospects. In the circumstances, the applicant failed to meet
the test to justify the rescission of the
arbitration award granted
against it in default.
[13] In addition, the
finding of the commissioner that the applicant did not explain the
unavailability of personnel, nor did it
file a confirmatory affidavit
corroborating or explaining Mr Pillay’s averments regarding the
whereabouts of the applicant
on the date of the arbitration hearing,
is a conclusion justified on the evidence before the commissioner.
[14] In determining the
rescission application on the papers, the commissioner dealt with the
matter in a manner he deemed fit in
accordance with the Act and the
bargaining council’s rules. There is nothing to suggest that
the requirements of fairness
and expedition were not appropriately
balanced (s
ee Foschini Group (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
(2002) 23
ILJ
1597 (LC);
Halcyon
Hotel (Pty) Ltd t/a Baraza v CCMA and Others
[2001]
8
[2001] 8 BLLR 911
(LC)) or
that the applicant’s fundamental rights were impinged upon in
any way.
[15] The decision of
the commissioner to dismiss the rescission application is one which
falls within the band of decisions to which
a reasonable person could
come on the available evidence. In the circumstances, the application
for the review and setting aside
of the rescission ruling must fail.
Costs
[16]
With
regards to the issue of costs, in terms of section 162 of the LRA,
this court has a discretion as to whether or not to award
costs
taking into account considerations of law and fairness. In exercising
this discretion,
ordinarily, it the party that is wholly
successful in an action or application that is awarded costs.
‘…
In other
words, the judicial officer may not, as he or she pleases, deprive a
successful party of its costs. He or she must
do so for reasons which
he or she must set out or state. It similarly follows that, although
ordinarily a successful party will
be awarded its costs, it does not
follow that that will always be the case.
’
5
[13]
I can find there to exist no reasons as to why costs should not
follow the
result in this matter.
Order
[17] The application is
dismissed with costs.
_______________________
K M Savage
Acting Judge
APPEARANCES
APPLICANT:
Mr S Snyman
Snyman Attorneys
THIRD RESPONDENT:
Mr H E Marx
Instructed by Roets & Du Plessis Attorneys
1
[2007]
12 BLLR 1097
(CC)
2
[
2011] 2 BLLR 129
(LAC) at para 18.
3
At
para [100] of the judgment.
4
See
A Myburgh ‘Sidumo v Rusplats: How the Courts deal with it’
(2009) 30 ILJ 1
5
The
Trustees of the Time Being of the Biowatch Trust v Registrar Genetic
Resources and Others
(Open Democracy Advice
Centre as Amicus Curiae) (A831/2005)
[2008] ZAGPHC 135
(13 May 2008)
2008 JDR 0442 (T)
at para 31