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[2011] ZALCCT 57
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Mpelo v Commission for Conciliation Mediation and Arbitration and Others (C 835/10) [2011] ZALCCT 57 (5 August 2011)
Not reportable
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD AT CAPE TOWN
Case
no: C 835/10
In the matter between:
NKOSINATHI
ELVIS MPELO
...........................................................
Applicant
and
CCMA
....................................................................................
First
respondent
COMMISSIONER
C HENNEY
.........................................
Second
respondent
KELLY
INDUSTRIAL
...........................................................
Third
respondent
ruling on leave to appeal
STEENKAMP J:
Introduction
This is an application for leave to appeal against my
ex tempore
judgement of 24 May 2011. In that judgement, I dismissed the
application for review with no order as to costs.
In terms of a directive of this court issued in terms of rule
30(3A)(b), the applicant was to deliver his submissions by 24 June
2011. He only did so on 27 June 2011. He applied for condonation on
11 July 2011. Since the applicant is unrepresented, I deem
it in the
interests of justice to grant condonation for the late filing of his
submissions. The third respondent filed its submissions
on 27 June
2011.
In deciding whether to grant leave to appeal, I need to consider
whether there is a reasonable prospect that another court could
come
to a different conclusion.
In my judgement, I found that the Commissioner properly applied his
mind to the evidence before him, and in considering the fairness
of
the applicant's dismissal, the Commissioner took into account
relevant case law and the totality of circumstances in the evidence
before him. His finding that the applicant's dismissal was fair, was
one that a reasonable decision maker could reach.
Although the applicant’s submissions are by no means clear, he
appears to rely on alleged judicial bias or misconduct,
without
establishing any reasonable grounds for doing so.
The applicant raises six grounds of review. Firstly, he alleges:
"By placing undue reliance
that the applicant had accused the arbitrator of asking him
misleading questions. The applicant
furnish [sic] the honourable Mr
Justice Steenkamp with clarity during the court proceedings that, the
leading questions mentioned
in the heads of argument were asked by
the third respondent (which is the company) to its three witnesses
during the arbitration
process under the auspices of the CCMA, on the
19 August 2010."
I cannot find any substance to this allegation. In his heads of
argument, the applicant said:
"It's very questionable how
the second respondent reached his findings this court because nowhere
in the statements of the
third respondent's witnesses did they
substantiate also court the charges of misconduct, except for the
leading questions posed
by the third respondent. In order for the
honourable court to have a clear understanding of the proceedings it
would be advisable
for the court to listen to the audio recordings
made by the second respondent and revisited document D of the indexed
records."
In his oral argument, I explained to the applicant that a full
transcript of the arbitration proceedings was before me and that
I
have read through it. I challenged him to point me to the leading
questions that he complained of. He could not do so. There
is no
substance to this ground of appeal.
The second ground of appeal is:
“
By not
considering the fact that the referrals contained in the applicant’s
head [sic] of argument reveals how the arbitrator
misinterpreted and
improperly obtained the facts and material evidence of this
applicant. The applicant subsequently showed the
Honourable Mr
Justice Steenkamp paragraph 10 and 11 during this explanation that
the version of the case was an injury on duty.
And the referrals
contained in the above mentioned paragraphs demonstrate reasonably
that.”
This ground is also without substance. I made it clear in my
judgement that the employee testified at the arbitration that the
reason he went to the manager’s office on 17 June 2010, was
because he had sustained an injury on duty. But that does not
detract from the fact that he acted in a disorderly fashion, and in
an insubordinate manner towards the manager.
The third ground of appeal is:
"By refusing to accept the
applicant’s explanation that the leading questions were asked
by the third respondent, and
not his description of the whole
circumstances of the entire case. Although the applicant requested
from Mr Justice Steenkamp to
go through the documents in order to
find the question raised by the Honourable Mr Justice Steenkamp, and
as the applicant could
not find that statement but Mr Stringer
insisted that I should answer that question was irrelevant to my
statements contained in
my record and reliable documents.”
The applicant’s complaint appears to be that he could not find
a document. This appears to relate to an occasion when I
questioned
him about his allegation that the arbitrator had asked leading
questions. He could not refer me to any instance in
the record
whether this was the case. There is no substance to this ground of
appeal.
The fourth ground of appeal is:
"By ignoring biased
decision taken by the arbitrator for considering only what was said
by the third party."
As I pointed out in my judgement, this is simply not true. The
arbitrator summarised the applicant’s evidence in his award
and applied his mind to it.
The fifth ground of appeal is:
"By holding the court
proceedings privately and they were confusing as the learned judge
did not open the as normally done
by a court of law whereby
participants in the proceedings do so under oath but instead he asked
the irrelevant questions to the
applicant party that he should point
out him, whereupon the records does it state that the arbitrator
asked the applicant misleading
questions."
This allegation borders on contempt. The Labour Court is a court of
record
1
and its proceedings are open to the public. The applicant is lying
when he alleges that the court proceedings were held privately.
The final ground of appeal is:
“
By not
listening to the applicant’s explanation that in his conscience
he was expecting that the court proceedings will deal
his heads of
argument paragraph by paragraph and use referrals that are mentioned
to enable the court to observe where and how
the arbitrator was
biased towards applicant and improperly obtained facts and evidence
of the applicant, for example paragraph
16 of the heads of argument
last not even considered although it had a strong bone of
contention."
I accept that, because the applicant is not represented, he may not
understand how oral argument is conducted in court. The aim
is not
to read through each paragraph of a party's heads of argument. The
parties can accept that the judge had already read
through the heads
of argument. It is against that background that the issues are
discussed with the litigants. With regard to
paragraph 16 of the
applicant's heads of argument in the review application, that refers
to a clear typographical error and not
an indication of bias on the
part of the arbitrator.
There is no reasonable prospect that another court could come to a
different conclusion on appeal.
The only reason in law or equity that I will not order the applicant
to pay the third respondent's costs. In this application
is because
he has unrepresented, and possibly indigent.
The application for leave to appeal is dismissed. There is no order
as to costs.
_______________________
STEENKAMP J
Date of judgment:
5 August 2011
For the applicant:
In person
For the third respondent:
AJ Hamilton, Hamilton attorneys
1
LRA
s 151(3)