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[2011] ZALCJHB 121
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Erasmus NO v Commission for Conciliation, Mediation and Arbitration and Others (JR 2579/09) [2011] ZALCJHB 121; (2012) 33 ILJ 1670 (LC) (22 December 2011)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case no: jR 2579-09
In the matter between:
NICOLENE
ERASMUS N.O.
….............................................................................
APPLICANT
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
…....................................................
FIRST
RESPONDENT
COMMISSIONER
PIETER GREYLING N.O.
…...............................
SECOND
RESPONDENT
W.
PARKIN
….......................................................................................
THIRD
RESPONDENT
Heard
: 2
0 December 2011
Delivered
:
22 December 2011
Summary: Review proceedings – Applicant requested
postponement on 29 July 2009 based on illness of the main witness
contracted
on 28 July 2009. Applicant sent a representative to
request postponement. Costs were tendered should postponement be
granted. Commissioner
refused application and continued in default.
Applicant took Default Judgement on Review. Review granted. Default
Award set aside.
Matter referred back to the CCMA.
judgment
SWANEPOEL AJ
Introduction
[1] This is an application to rescind the default award handed down
by the Second Respondent on 11 August 2009 in which the following
award was made:
That the dismissal of the Applicant [Third Respondent] was declared
to have been substantively and procedurally unfair.
That the Respondent [Applicant] Erasmus Labour Brokers Trust, pay
the Applicant [Third Respondent] an amount of R 13 000.00
being the
equivalent of two months remuneration as compensation
That the Respondent [Applicant] pay the Applicant [Third
Respondent] the amount of R 5 502.00 being outstanding overtime due
to the Applicant [Third Respondent]
That the total amount of R 18 502.00 must be paid no later than 31
August 2009.
[2] For the rest of this judgement I will be referring to the
original Applicant as the Third Respondent.
[3] The Applicant became aware of the judgement and filed this
application seeking the following order:
3.1 Reviewing and setting aside the arbitration award of the Second
Respondent issued under Case no. NWKD 3733-09 on 11 August
2009 and
which was received by the Applicant on 12 August 2009.
3.2 Remitting the matter back to the First Respondent for a
de
novo
hearing before another Commissioner.
3.3 Directing any Respondent who opposes this Application pay the
costs thereof (
Sic).
3.4 Affording the Applicant further and/or alternative relief.
The
facts
Applicant’s
submissions
[4] The Third Respondent was employed by the Applicant on 16 March
2009 and deployed to Crest Choice Chicken to render services
to them.
[5] On 25 May 2009, the Third Respondent deserted his workplace and
failed to render his contractual duties.
[6] Disciplinary procedures were instituted and the Third Respondent
was found guilty and dismissed on 10 June 2009.
[7] He referred his dismissal to the First Respondent and the matter
was set down as a con/arb for 29 July 2009 in front of the
Second
Respondent.
[8] The designated official and member of the Applicant, Nicolene
Erasmus was tasked to deal with the matter. She lived in Pretoria
and
the matter was set down to be dealt with in Potchefstroom.
[9] In the afternoon of 28 July 2009 Liebenberg, the main witness of
the Applicant was admitted to hospital. Smit, another employee
of the
Applicant became aware of it and brought it to the attention of
Erasmus.
[10] Erasmus decided not to drive the 400 km drive to Potchefstroom
and asked Smit to attend and arrange a postponement.
[11] Smit had no prior knowledge of the matter and attended to the
matter the next day. She was not in the position to furnish
any
information pertaining to the matter to the Second Respondent.
[12] The Second Respondent ruled that Smit had failed to lay a
bona
fide
basis on which a postponement could be granted,
inter
alia
because:
12.1 She could not provide documentary evidence or specific details
pertaining to Liebenberg’s [the witness’] admittance
to
hospital;
12.2 That she did not submit evidence as to an attempt to engage with
the opposition in order to secure an agreed postponement;
12.3 She made no attempt to proceed with the matter or call other
witnesses.
[13] Postponement was denied and the matter continued in default.
Grounds for review
[14] The Second Respondent committed gross misconduct in that he
failed to apply his mind in making the award therein that:
14.1 He did not take into consideration the interest of justice and
fairness when considering the application for postponement
by no
evidence or argument pertaining to this issue was put before him,
14.2 What prejudice was likely to be suffered by either party should
postponement be granted or refused therein that
14.2.1 No evidence was presented by the legal representative of the
Third Respondent on this issue and
14.2.2 The influence of Liebenberg’s hospitalization, being the
main witness of the Applicant and the inability for the matter
to
continue in his absence, led to the Second Respondent not properly
considering the severity of the prejudice the Applicant would
suffer.
14.3 The possibility of an appropriate order to cure the prejudice
suffered was also not properly taken into account. The Second
Respondent did not take into account that the Third Respondent’s
Legal Representative suggested that he could consider an
appropriate
order as to costs in the event of him considering granting a
postponement in order to cure any prejudice that the Third
Respondent
might have suffered.
14.4 Whether the application was
bona fide
or a mere tactical
manoeuvre. The Second Respondent did not take into account the fact
that a
bona fide
basis was presented by the evidence that
14.4.1 The unavailability of the Applicant’s witness was due to
him having been hospitalized,
14.4.2 Smit was not prepared to continue with the arbitration since
she was not mandated to deal with the matter,
14.4.3 Smit could not factually continue with the matter since she
was not in possession of the file.
[15] It was admitted that Erasmus might have wrongfully pre-empted
the Second Respondent’s decision to postpone but such
action
could have been cured by an appropriate order as to costs.
[16] In a supplementary affidavit drafted after the recording was
transcribed, Smit stated that she also indicated that if the
Applicant was desirous to delay the proceedings it would have
objected to the con/arb process, which it did not do.
[17] She also pointed out that even if there were other witnesses to
testify, the matter would have had to be postponed for the
evidence
of Liebenberg since he was an important witness and that the matter
would therefore not have been concluded on 29 July
2009.
[18] The fact that the Second Respondent noted on record that the
evidence presented in Afrikaans had to be translated into English
was
an indication that he was aware that he was making a mistake by not
allowing the postponement.
[19] It also surfaced that no application was brought by the Legal
Representative of the Third Respondent in terms of Rule 25 of
the
CCMA Rules pertaining to representation.
Third Respondent’s submissions
[20] Since the issue pertaining to the citation was not regarded as
that relevant by Mr. Badenhorst, who appeared on behalf of
the Third
Respondent, I do not intend burdening the record with the submissions
on it.
[21] The Contract of Employment was incomplete since
inter alia:
21.1 It indicated that he was employed as a dispatch supervisor;
however he was fulfilling his duties at Crest Choice Chickens,
21.2 His working hours were left blank,
21.3 His salary was R 6 500.00 per month,
21.4 The contract was for a limited duration from 16 March 2009 –
31 March 2009.
[22] After 31 March 2009 no new contract was negotiated and he
understood from it that he became a permanent employee.
[23] He stated that the incident that led to his dismissal took place
on 25 May 2009 on which day he left his place of employment
after he
completed his normal 8-hour shift.
[24] He was not prepared to work overtime since he was informed, when
he queried the non-payment of the overtime worked in April
2009 that
the dates on which he indicated he worked overtime was deleted from
the claim he submitted and he was only paid overtime
for three public
holidays worked in April.
[25] When he discussed the issue with Liebenberg, the owner of Crest
Choice Chickens, on 25 May 2009, he was informed that Crest
Choice
Chickens would not pay for overtime worked.
[26] He discussed the issue at 18:00 with his immediate supervisor he
indicated to the supervisor that he would not work more than
an
8-hour shift.
[27] He therefore went home at 21:00 on 25 May 2009, having completed
his 8-hour shift.
[28] He was telephoned by Liebenberg later that evening and asked why
he was not at work. He indicated that since he was not paid
overtime
he was not prepared to work. Liebenberg informed him that
disciplinary action would ensue, which eventually happened on
5 June
2009.
[29] He was found guilty of gross negligence. The Chairman committed
a gross error when he arrived at the conclusion that the Third
Respondent was supposed to work a 9-hour shift without there having
been sufficient evidence for him to draw that conclusion.
[30] The chairperson was a certain Pieterse to whom he had previously
complained about his unpaid overtime.
[31] His dismissal was pre-determined and evidence was manufactured.
There was no rule in existence pertaining to the number of
hours he
had to work.
[32] The fact that the Applicant had not supplied a medical
certificate to validate the reason for Liebenberg’s absence on
29 July 2009 should be noted and taken into account.
[33] Since Smit had no knowledge of the matter, or the basic details
such as who the witness was, or the nature of the evidence
he was to
present, she was not in a position to properly launch a postponement
application.
[34] Smit and Erasmus wilfully and intentionally concluded (
sic)
on 28 July 2009 that the matter would merely be postponed on 29 July
2009.
[35] The Second Respondent applied his mind thoroughly when he
considered the postponement application brought by the Applicant
in
that:
35.1 The Applicant was the party that should have presented argument
on the interest of justice,
35.2 The prejudice that the Third Respondent would have suffered was
properly indicated and contained in the award rendered,
35.3 The Applicant’s unpreparedness to continue with
arbitration on the day of the hearing had to be placed squarely at
the door of the Applicant.
[36] As to the issue raised pertaining to costs, it was raised as an
alternative by the Third Respondent’s lawyer, should
the Second
Respondent decided to grant postponement and not offered by the
Applicant.
[37] The issue raised by the Applicant that the Second Respondent did
not apply his mind when he considered postponement is not
a valid
reason to review the default award since it was not a defect as
envisaged in Section 145 of the Labour Relations Act, act
66 of 1995
as amended.
[38] As to the contents of the Supplementary Affidavit filed, the
submission was made that the Applicant threatened the Second
Respondent with further steps should the application be refused.
[39] As to the fact that the referral form was completed indicating
that the Third Respondent did not know the actual reason for
his
dismissal he ticked the box “reasons unknown”. He was
assisted by his father at this time. No objection to legal
representation was raised prior to the Applicant wilfully leaving the
proceedings.
The Default Award
[40] The Second Respondent, in his analysis of the evidence and
argument pertaining to the postponement application, indicated
that
even though he was informed that Liebenberg was admitted to hospital,
no documentary evidence could be produced to substantiate
this
averment and Smit could not provide any detail of the reason behind
Liebenberg’s admittance or detail of the specific
hospital he
was admitted to.
[41] He also indicated that the Applicant on its own decided that the
proceedings would not continue and made no attempts to contact
the
Third Respondent to obtain its consent to postpone the matter, or to
notify it of the impending application for a postponement.
[42] He indicated that the Applicant made no attempts to proceed with
the matter by calling other witnesses that might have been
necessary
to call. No indication was given as to the readiness of other
witnesses.
[43] Smit also indicated that she could not proceed since the file
was with Erasmus.
[44] He concluded that there was no
bona fide b
asis on which a
postponement could be granted; hence the application for postponement
was dismissed.
Transcription of the proceedings
[45] From the transcription it seems clear that the Second Respondent
demanded to know the extent of the evidence to be presented
by
Liebenberg. It is also clear that Smit told him that all the evidence
pertaining to the matter would be presented by Liebenberg.
Evaluation
The test for Review
[46] The test for the review of the finding of the
first respondent is now beyond doubt. In
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others
1
it was held as follows:
‘
In
considering whether or not the first respondent's award falls to be
set aside on the ground that it is not justifiable in relation
to the
reasons given for it, I consider that one must have regard to the
material that was properly available to the first respondent,
the
decision he took and the reasons that he gave for such decision. As
one does this, one must bear in mind what Chaskalson P
said in the
Pharmaceutical Manufacturers' case, namely that a decision that is
objectively irrational is likely to be made only
rarely. Of course, I
am saying this insofar as it seems that there is much commonality
between justifiability and rationality.
One must also bear in mind
the importance of maintaining the distinction between appeals and
reviews. It must also be borne in
mind that the Act contemplates that
the disputes that it requires to be referred to arbitration are meant
to be put to an end by
way of arbitration and that the
dispute resolution dispensation of the Act which is meant
to be expeditious
would collapse if every arbitration award
could be taken on review and set aside.’
And
‘
In the
light of what has been said above in regard to Carephone and the
Pharmaceutical Manufacturers' case and what was said by
the
Constitutional Court in the latter case, and in the light of the
possibility that the PAJA may well be applicable to arbitration
awards issued by the CCMA, I am of the view that it would not serve
much purpose for this court to consider whether or not its
decision
in Carephone was correct and whether or not such decision should be
departed from. In those circumstances Carephone stays.
This appeal
can, therefore, be considered on the basis that, as was decided by
this court in Carephone , CCMA awards can be reviewed
and set aside
if they are not justifiable in relation to the reasons given for
them.’
[47] From the outset, the Second Respondent, in
finding in favour of the Third Respondent, completely failed to
properly determine
the evidence before him, thereby committing a
gross irregularity. Reference is made to the following extract from
Crown Chickens (Pty) Ltd t/a Rocklands
Poultry v Kapp and Others
2
‘
Arbitration
awards issued by the CCMA may be reviewed on any of the grounds set
out in s 145 of the Act more especially where the
commissioner had
committed a gross irregularity in the conduct of the arbitration
proceedings. The decision of the arbitrator can
also be set aside if
it is not rationally related to the purpose for which the power was
given from an objective view
(Shoprite
Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC)
para [26], Pharmaceutical Manufacturers' Association
of SA &
others: in re Ex Parte Application of the President of the RSA &
others
[2000] ZACC 1
;
2000 (3) BCLR 241
(CC)) or if it is not justifiable as to the
reasons given. See Carephone (Pty) Ltd v Marcus NO & others
(1998) 19 ILJ 1425
(LAC);
(1998) 11 BLLR 1093
(LAC) at 1103C
.
By rational I understand that the award of an arbitrator must not be
arbitrary and must have been arrived at by a reasoning process
as
opposed to conjecture, fantasy, guesswork or hallucination. Put
differently the arbitrator must have applied his mind seriously
to
the issues at hand and reasoned his way to the conclusion. Such
conclusion must be justifiable as to the reasons given in the
sense
that it is defensible, not necessarily in every respect, but as
regards the important logical steps on the road to his order.
A gross irregularity can occur
patently where for example the right to cross examination is
denied or latently where the reasoning
is so flawed that one must
conclude that there has not been a fair trial of the issues.
See
Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340
(LAC).’
[48] There was a duty on the Second Respondent to
properly determine the evidence before him. This means that the
Second Respondent
had to properly, and in a reasoned fashion, assess
all witnesses, documents, and the probabilities. In
Marapula
and Others v Consteen
(Pty) Ltd
3
it was held as follows:
‘
The
credibility of witnesses and the probability or improbability of what
they say should not be regarded as separate enquiries
to be
considered piecemeal. They are part of a single investigation into
the acceptability or otherwise of the employer's version,
an
investigation where questions of demeanour and impression are
measured against the content of the witnesses' evidence, where
the
importance of any discrepancies or contradictions are assessed and
where a particular story is tested against facts which cannot
be
disputed and against the inherent probabilities, so that at the end
of the day one can say with conviction that one version
is more
probable and should be accepted, and that therefore the other version
is false and may be rejected with safety.’
[49] The judgment in
S
v Civa
4
is particularly apposite. In particular, it was
held as follows:
‘
The
evidence must be weighed as a whole, taking account of the
probabilities, the reliability and opportunity for observation of
the
respective witnesses, the absence of interest or bias, the intrinsic
merits or demerits of the testimony itself, any inconsistencies
or
contradictions, corroboration, and all other relevant factors. It is
in the context of this overall scrutiny of the evidence
that
demeanour, if there are sufficient indications thereof to be
significant, must be assessed.’
[50] Simply put, the Second Respondent, in this instance, did not
lawfully, reasonably and justifiably determine the issue of the
postponement properly before him, as will be addressed hereunder.
The Postponement Application before the Second Respondent
[51] It is apparent from the award of the Second Respondent that he
refused the postponement on two grounds only, being:
51.1 The Second Respondent, in his analysis of the evidence and
argument pertaining to the postponement application, indicated
that
even though he was informed that Liebenberg was admitted to hospital,
no documentary evidence could be produced to substantiate
this
averment and Smit could not provide any detail of the reason behind
Liebenberg’s admittance or detail of the specific
hospital he
was admitted to.
51.2 He also indicated that the Applicant on its own decided that the
proceedings would not continue and made no attempts to contact
the
Third Respondent to obtain its consent to postpone the matter, or to
notify it of the impending application for a postponement.
51.3 He indicated that the Applicant made no attempts to proceed with
the matter by calling other witnesses that might have been
necessary
to call. No indication was given as to the readiness of other
witnesses.
51.3 Smit also indicated that she could not proceed since the file
was with Erasmus.
51.4 He concluded that there was no
bona fide b
asis on which a
postponement could be granted; hence the application for postponement
was dismissed.
[52] In terms of Rule 17(2) of the CCMA Rules a party that wishes to
object to Arbitration following immediately after conciliation
5
i
must
deliver a written notice to the Commission and to the other party, at
least 7 days prior to the scheduled date in terms of
subrule (1).
[53] No such objection was filed and as such it is indicative that
both parties were prepared to continue with the arbitration
process
should they fail to settle the matter during conciliation.
[54] Rule 23 (3) of the CCMA Rules state that any party may, apply in
terms of Rule 31 to postpone an arbitration by delivering
an
application to the other parties to the dispute and filing a copy
with the Commission before the scheduled date of the arbitration.
[55] It is clear from the evidence that prior to 28 July 2009 the
Applicant had no intention to apply for the postponement of the
arbitration proceedings. It is also clear from the Rule that a formal
application must be made, should the parties not be able
to agree to
postpone the matter.
[56] From the submissions made it is clear that the Applicant found
itself in a rather precarious matter since there was no way
it could
contemplate the unavailability of Liebenberg prior to the afternoon
of 28 July 2009. I might interject that in the Applicant’s
Heads of Argument it stated that Liebenberg was involved in an
accident on 28 July 2009. This specific evidence was however not
in
front of the Second Respondent on 29 July 2009 nor was it proffered
in the papers of the Applicant.
[57] Given the fact that there was no time to launch such an
application, the Applicant had to rely on Smit to apply for a
postponement
on 29 July 2009.
[58] It is trite that the granting of an application for postponement
is not a right but an indulgence granted by the CCMA or the
Court in
the exercise of a judicial discretion
6
.
[59] An Application for postponement must be
bona fide
and not
used simply as a technical manoeuvre for the purpose of obtaining an
unfair advantage over the opposing party.
[60] In terms of the CCMA Practice and Procedure Manual an
application for a postponement brought on the scheduled date of an
arbitration should only be considered if it is shown that good cause
exists for treating it as an urgent application in respect
of which
the requirements of Rule 31 may be dispensed with in terms of Rule
31(8). Factors to be considered include, where applicable
60.1 The explanation for not seeking the consent of the other party
timeously,
60.2 ....
60.3 ....
60.4 Whether the other party was given as much notice of the
application as was reasonably possible and, if not, the explanation
for not giving such notice,
60.5 The prejudice that the Respondent would suffer should the
application for the postponement be heard on an urgent basis or
that
the Applicant would suffer should it not be heard.
[61] The considerations that are relevant in deciding whether or not
to grant a postponement are as follows:
61.1 The Commissioner has a discretion whether an application for
postponement should be granted or refused.
61.2 The discretion must be exercised judicially and for substantial
reasons and should not be exercised capriciously or on any
wrong
principle.
61.3 The CCMA/Commissioner must reach a decision after properly
directing its/his/her attention to all the relevant facts and
principles including ... good cause for a postponement.... The said
factors are not individually decisive and the weight to be attached
to each factor is within the CCMA/ Commissioner’s discretion.
61.4 An application must be made timeously or as soon as the
circumstances, which may justify an application, become known to the
Applicant. In cases where fundamental fairness and justice justify a
postponement, the CCMA/Commissioner may in appropriate cases
allow a
postponement even though the Application was not timeously made.
61.5 The Application for postponement must always be
bona fide
and not used simply as a tactical manoeuvre for the purpose of
obtaining an advantage to which the Applicant is not legitimately
entitled.
61.6 Where a postponement will cause prejudice to the adversary of
the Applicant for a postponement, it must be considered whether
this
can fairly be compensated by an appropriate order of costs or any
ancillary mechanisms.
[62] Based on the submission made by the parties, the transcription
of the proceedings it seems clear that the Second Respondent
focused
mainly on the expected contents of the evidence Liebenberg would have
presented. He actually pressed Smit to provide an
overview or
indication as to why Liebenberg was so important. Smit stated that
the whole case turned on his evidence.
[63] It is also apparent that he did not take into account the fact
that Smit was not in possession of a file or further information
pertaining to the matter.
[64] I do agree with Mr. Wissing that indeed Erasmus acted
incorrectly when she opted to not attend and to ask Smit, who clearly
was not privy to the details of the matter, Liebenberg’s
evidence or the nature of his illness, to apply for a postponement.
[65] Be that as it may, clearly, given the significance of
Liebenberg’s evidence and the fact that he could instruct the
Applicant to supply proper documentary evidence of Liebenberg’s
reason for hospitalization at the next hearing date he decided
to
deny the application for postponement.
[66] Further to this, it seems abundantly clear that he could have
postponed the matter ordering the Applicant to pay the wasted
costs
of the Third Respondent.
The Principles relating to Postponements
per se
[67] It is trite that the CCMA was established to ensure the speedy
resolution of labour disputes and it is trite that postponements
do
impact the financials of the CCMA negatively. However, given the
surrounding circumstances it would have been fair and just
to allow
the postponement giving the Applicant the opportunity to a fair and
equitable process.
[68] It is apposite to first refer to the
judgement in
Carephone (Pty) Ltd v
Marcus No and Others
7
.
The Court held as follows on the issue of postponements before the
CCMA:
‘
In a
court of law the granting of an application for postponement is not a
matter of right. It is an indulgence granted by the court
to a
litigant in the exercise of a judicial discretion. What is normally
required is a reasonable explanation for the need to postpone
and the
capability of an appropriate costs order to nullify the opposing
party's prejudice or potential prejudice. Interference
on appeal in a
matter involving the lower court's exercise of a discretion will
follow only if it is concluded that the discretion
was not judicially
exercised (Madnitsky v Rosenberg
1949 (2) SA 392
(A) at 398 9).
There are at least three reasons
why the approach to applications for postponements in arbitration
proceedings under the auspices
of the commission under the LRA is not
necessarily on a par with that in courts of law. The first is that
arbitration proceedings
must be structured to deal with a dispute
fairly and quickly (s 138(1)). Secondly, it must be done with 'the
minimum of legal formalities'
(s 138(1)). And thirdly, the
possibility of making costs orders to counter prejudice in good faith
postponement applications is
severely restricted (s 138(10)).’
[69] The general principles applicable to
postponements was aptly summarized in the judgement of
Insurance
& Banking Staff Association and Others v SA Mutual Life Assurance
Society,
8
where it was held as follows:
‘
In an
application for postponement, the legal principles established in the
High Court over the years apply equally in practice
in the Labour
Courts. For the purpose of the present application, the following
principles apply:
The trial judge has a
discretion as to whether an application for postponement should
be granted or refused. (R v Zackey
1945 AD 505
; Myburgh Transport
v Botha t/a SA Truck Bodies
1991 (3) SA 310
(Nm).)
That discretion must at all
times be exercised judicially. It should not be exercised
capriciously or upon any wrong principle,
but for substantial
reasons. (R v Zackey ; Myburgh Transport ; Joshua v Joshua
1961
(1) SA 455
(G) at 457D.)
The trial judge must reach a
decision after properly directing his/her attention to all
relevant facts and principles. (Prinsloo
v Saaiman
1984 (2) SA 56
(O); Johannesburg Stock Exchange & another v Witwatersrand
Nigel Ltd & another
1988 (3) SA 132
(A).)
An application for
postponement must be made timeously, as soon as the circumstances
which might justify an application
become known to the applicant.
However, in cases where fundamental fairness and justice justify
a postponement, the court
may in an appropriate case allow such
an application for postponement, even though the application was
not timeously made.
(Myburgh Transport ; Greyvenstein v Neethling
1952 (1) SA 463
(C).)
The application for
postponement must always be bona fide and not used simply as a
tactical manoeuvre for the purpose of
obtaining an advantage to
which the applicant is not legitimately entitled.
Considerations of prejudice
will ordinarily constitute the dominant component of the total
structure in terms of which the
discretion of a Court will be
exercised.' What the court has primarily to consider is whether
any prejudice caused by a
postponement to the adversary of the
applicant for a postponement can fairly be compensated by an
appropriate order of
costs or any other ancillary mechanisms.
(Herbstein & Van Winsen The Civil Practice of Superior Court
in SA (3 ed)
at 453; Myburgh Transport)
'The Court should weigh the
prejudice which will be caused to the respondent in such an
application if the postponement
is granted against the prejudice
which will be caused to the Applicant if it is not.’
Where the applicant for a
postponement has not made the application timeously, or is
otherwise to blame with respect to
the procedure which the
applicant has followed, but justice nevertheless justifies a
postponement in the particular circumstances
of a case, the court
in its direction might allow the postponement but direct the
applicant in a suitable case to pay the
wasted costs of the
respondent occasioned to such a respondent on a scale of attorney
and client. Such an applicant might
even be directed to pay the
costs of the adversary before the applicant is allowed to proceed
with the action or defence
in the action, as the case may be.
(Van Dyk v Conradie & another
1963 (2) SA 413
(C); Tarry &
Co Ltd v Matatiele Municipality
1965 (3) SA 131
(E); Myburgh
Transport)’
[70] The above principles should have thus been applied by the Second
Respondent in determining the postponement application of
the
Applicant, in terms of the facts set out above. The Second
Respondent, in a grossly irregular manner, did not do so.
Application: General principles
[71] The principal reason for the Applicant’s
application that the matter be postponed was the unavailability of
its main
witness. This is proper basis for postponement per se (see
Sajid v Mahomed No & Others
9
;
Mbuli v Spartan Wiremakers CC
10
.
[72] In
Foschini
Group (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration and Others
11
where it was held as follows:
‘
...The
commissioner's failure to grant the applicant an opportunity to call
witnesses (by adjourning the proceedings for a short
while) was
grossly irregular and unreasonable.
By refusing the applicant the
opportunity to call witnesses, the commissioner ignored the principle
of
audi alteram partem
and denied the applicant a proper
opportunity to be heard which prevented a fair trial of the issues.
In my view, the failure to
observe the
audi alteram partem
rule renders the decision invalid...’
[73] On the common cause facts before the Second Respondent, as set
out above, Liebenberg was not available to give evidence. It
is also
clear that Liebenberg was the principal witness. In fact, even on the
default award and the record of the proceedings,
it is clear that
Liebenberg was the person that caused– according to the Third
Respondent – that he left the workplace
after his 8-hours had
lapsed. It is clear that his evidence was indispensable, and crucial
to the arbitration, and is clearly proper
cause for a postponement.
[74] In fact, all that the Second Respondent did was to state that
despite Liebenberg not being available, the Applicant could
have
presented the evidence of “other witnesses” who were
available. Clearly, this is an untenable finding by the Second
Respondent, and clearly not a valid basis at all to refuse the
postponement. The Applicant was clearly entitled to call its central
witness first. The Second Respondent was in effect saying to the
Applicant what witnesses it should call and in what order. Also,
even
if the Applicant led the witnesses, the matter would still have to
postpone to call Liebenberg later, as it is clear that
Liebenberg was
instrumental and vital to the Applicant’s case. The Second
Respondent clearly dealt with this issue in a grossly
irregular
manner.
[75] When the parties were in front of teh Second Respondent a very
short period – two months- has lapsed. The Legal Representative
of the Third Respondent claimed that he would be severely predujiced
should the matter be postponed. He added though, that should
the
Second Respondent grant a postponement, a cost order could cure the
prejudice.
[76] Mr. Badenhorst argued that the CCMA seldom grant cost orders and
that as such it would have been unlikely that costs would
have been
granted.
[77] Mr. Badenhorst is wrong – cost orders as part of the final
award is not made easily given the fact that aspects such
as fairness
and the possibility of a continued relationship must be taken into
account.
[78] Wasted costs on the other hand is normally tendered or ordered
to compensate for the inconvenience caused by the party responsible
for an incidental postponement. The facts
in casu
would have
warranted an order pertaining to the wasted costs for the day of 29
July 2009.
[79] Therefore, a further delay of a few months
(at most) that may have been caused by granting a postponement pales
by comparison,
to the current situation – after all, this
matter was enrolled on the Con/Arb roll for 29 July 2009 and taken
into account
that today, on 22 December 2011 the matter has still to
be determined. Any prejudice which may have resulted from the
postponement
to the Third Respondent could be fully cured by an
appropriate interest and costs award (see
Anderson
Transport (Pty) Ltd v Maqhina and Others
12
;
Vorster v Commission for Conciliation,
Mediation & Arbitration and Others
13
).
This factor was not considered by the Second Respondent at all.
[80] In essence, the Second Respondent placed
requirements of expedition above requirements of the interests of
justice. In
Commuter Handling Services
(Pty) Ltd v Mokoena and Others
14
,
it was held as follows:
‘
In
this case the unseemly haste with which the commissioner wanted to
'finish' the case seems to have been the prime consideration
that
caused her to resist an application for postponement for the
arrangement of a legal representative for the employer. She did
not
want to waste a day. She avoided the moment of postponement for the
sole reason of avoiding to waste time. She subordinated
the
consideration of the interests of justice to the interests of speed.
To compound issues, when the matter could not in any event
be
completed that day, she purported to reverse her decision to allow
legal representation. Further, given the manifest inability
of
Ackermann to cross examine effectively, even in the
commissioner's own view, offering Ackermann legal representation was
like closing the gate when the proverbial horse was already a
considerable distance from the stable. It was in effect too late.
Damage had already been done. In those circumstances it makes no
difference whether the commissioner denied Ackermann legal
representation
on the first day, or merely refused a postponement.
She misdirected herself grossly in first refusing to grant him an
opportunity
to arrange for a lawyer, and then, almost as a whim, in
purporting to grant it to him at the end of the first day. She acted
capriciously.
The effective denial of legal representation was
clearly going to lead to, as it in fact did in my view, incalculable
and irreparable
harm to the employer's case. The case could not be
saved by her last minute and capricious purported grant of legal
representative
to the employer.’
[81] The Second Respondent should have assisted and guided Smit in
her application pertaining to the requirements for a postponement.
She was a lay person and he clearly, given the questions he asked, he
should have guided her on the requirements or facts he needed
to duly
consider the application as was found in Xinwa & Others v
Volkswagen of SA (Pty) Ltd
15
,
not simply kept on demanding to know the relevance and/or extent of
Liebenberg’s evidence.
[82] Based upon the above principles and facts, the Second
Respondent, had he exercised his discretion judicially and properly,
should have granted the Applicant’s postponement application.
He thus committed a gross and reviewable irregularity in his
determination of, and refusal of, the postponement application.
[83] The basic principle applicable in this
instance has been enunciated in President of the Republic of South
Africa and Others
v South African Rugby Football Union and Others
16
,
where it was held as follows at 65A
C:
‘
Although the right to
just administrative action was entrenched in our Constitution in
recognition of the importance of the common
law governing
administrative review, it is not correct to see s 33 as a mere
codification of common law principles. The right
to just
administrative action is now entrenched as a constitutional control
over the exercise of power. Principles previously established
by the
common law will be important, though not necessarily decisive, in
determining not only the scope of s 33, but also the content.
The principal function of s 33
is to regulate conduct of the public administration and, in
particular to ensure that where action
taken by the administration
affects or threatens individuals, the procedures followed comply with
the constitutional standards
of administrative justice. These
standards will of course, be informed by the common law
principles developed over decades.’
[84] In the
Simelane
and Others NNO v Seven Eleven Corporation SA (Pty) Ltd and
Anothe
r
17
matter it was held as follows:
‘
To decide whether an
administrative action has been taken fairly it is crucial that the
decision making process be viewed as
a whole. The demands of
fairness will depend on the context of the decision viewed within the
procedural context in which it arises.
An essential feature of the
context is the empowering statute, which creates the discretion, as
regards both its language and the
shape of the legal and
administrative system within which the decision is taken’
[85] In the
National
Director of Public Prosecutions and Another v Mohamed NO and Others
18
matter the following was held:
‘
It is well established
that, as a matter of statutory construction
,
the audi
rule should
be enforced unless it is clear that the Legislature has expressly or
by necessary implication enacted that it should
not apply or tha
t
there are exceptional circumstances which would justify a court not
giving effect to it. R v Ngwevela above n 22 at 131H; Du Preez
and
Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(A)
(1997 (4) BCLR 531)
at 231F; Cooper NO v First National Bank of South
Africa Ltd
2001 (3) SA 705
(SCA) paras [23] [25]; and
Transvaal Agricultural Union v Minister of Land Affairs and Another
[1996] ZACC 22
;
1997 (2) SA 621
(CC)
(1996 (12) BCLR 1573)
para [25].
For stronger reasons this
approach should apply when construing a statutory provision in order
to determine its constitutionality.
Accordingly, in construing s 38,
where no express reference is made to the audi principle, or its
exclusion, the question to be
asked is not whether the audi principle
can be implied in the section, but rather whether it has been
excluded from the section
by clear necessary implication, or whether
there are exceptional circumstances which would justify a court not
giving effect to
it.’
[86] In this regard, the judgment in
N
F Die Casting (Pty) Ltd v Metal & Engineering Bargaining Council
and Others
19
is apt, where it was held as follows:
‘
I am
of the view that the application for postponement was not properly
entertained on its merits because the arbitrator took the
view that,
having regard to the provisions of rules 17 and 19, it was not
properly before him. The construction placed on these
rules by the
arbitrator was erroneous in law, since the rules are plainly designed
for cases in which an application for postponement
is made in the
ordinary course.
Where the application is
made from the bar, it is plain that these two rules, and in
particular rule 17 cannot apply.
The arbitrator's belief
that the rules have the effect of precluding any application
from the bar had the result that
he failed to consider the
application for a postponement on its merits, and in
consequence, improperly rejected it. The
approach that the
arbitrator took was such that he shut his mind to the
submissions that would have been made to him
on the merits, and
as a result, failed to properly apply his mind to the matter. In
consequence, he rejected an application
that should have been
entertained by him and considered on its merits, thereby
committing a reviewable irregularity.
The standpoint adopted by
the arbitrator was based on a reading of the CCMA Rules that
was, in the circumstances, vitiated
by error of law so drastic
as to constitute a material irregularity in the circumstances.
The arbitrator by misconstruing
the rules in the way he did,
took a blinkered approach to the provisions of the rules and
thus failed to apply his mind
to the merits of the application.
If he had not committed
this irregularity, he would have considered the application on
its merits and decided it accordingly.
It would have been open
for him to decide that the application for postponement should
be granted and then to decide,
once the application for
withdrawal of the concession and for a declaration that the
referral was out of time and thus
null and void had been made,
to consider that on its merits and potentially to decide in
favour of the applicant. This
irregularity prevented a fair
trial of the issues and a failure of justice.’
[87] Given all of the above I make the following order:
Order
[88] The Default Award issued by the Second Respondent is hereby set
aside.
[89] The matter is referred back to the First Respondent to be set
down for Arbitration to be conducted by another Commissioner
at its
earliest convenience.
[90] I make no order as to costs.
_______________________
A.H. Swanepoel
Acting Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT: Mr. Henk Wissing of Henk Wissing Attorneys
FOR THE RESPONDENT: Mr. Hennie Badenhorst of Hennie Badenhorst
Attorneys
1
(2001)
22 ILJ 1603 (LAC).
2
(2002)
23 ILJ 863 (LAC) at 868.
3
(1999)
20 ILJ 1837 (LC).
4
1974
(3) SA 844
(T).
5
Section
191(5A) Labour Relations Act, Act 66 of 1995 as amended.
6
Real
Estate Services (PTY) Ltd v Smith
(1999) 20 ILJ 196 (LC).
7
(
1998)
19 ILJ 1425 (LAC).
8
2000)
21 ILJ 386 (LC),
9
(2000)
21 ILJ 1204 (LC) par 24.
10
(2004)
25 ILJ 1128 (BCA).
11
(2002)
23 ILJ 1048 (LC).
12
(2003)
24 ILJ 522 (LC).
13
(2002)
23 ILJ 1899 (LC).
14
(2002)
23 ILJ 1400 (LC).
15
(2003)
24 ILJ 1077 (CC).
16
2000
(1) SA 1
(CC).
17
13
2003 (3) SA 64
(SCA).
18
2003
(4) SA 1
(CC).
19
(2002)
23 ILJ 924 (LC).
i