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[2012] ZALCJHB 177
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Mabogoane v Commission for Conciliation Mediation and Arbitration and Others (JR 1114/09) [2012] ZALCJHB 177 (14 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
of
interest to other Judges
Case
no: JR 1114/09
In
the matter between:
SAMUEL
MOLEKE MABOGOANE
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
E. LERUMO N.O.
Second Respondent
GOLDENMARC
(PTY) LTD
Third
Respondent
Heard
on: 14 December 2011
Delivered
on: 14 February 2012
JUDGMENT
MAHOMEDAJ
Introduction
[1]
The Third Respondent is incorrectly cited in the review application
as "Golden Mark", At the hearing of this application,
I
made an order in terms of Rule 22 amending the citation of the Third
Respondent to
"Goldenmarc
(Pty) Ltd". This being the correct citation of the Third
Respondent entity.
[2]
The Applicant is a former employee of the Third Respondent. It is
alleged that the Applicant resigned from his employment.
The
Applicant is aggrieved with a default arbitration award issued by
the Second Respondent wherein the Second Respondent found
that the
Applicant failed to establish his dismissal. The Second Respondent
accordingly proceeds to conclude that she is not
required to decide
whether the termination was "fair".
1
The Third Respondent did not appear at the arbitration.
[3]
The Applicant represented himself in the review proceedings whilst
the Third Respondent was represented by an attorney, Ms
Wessels.
There was no opposition to the application by either of the First
and/or Second Respondents. The First and Second Respondents
filed a
notice to abide the decision of this court on 8 June 2009. The
further notices and an opposing affidavit were filed subsequent
thereto.
The
dispute which came before the second respondent commissioner
[4]
The Applicant alleged that he was coerced into signing a letter of
resignation in September 2008. The effect of such allegation,
in the
face of the written letter of resignation, is that the Applicant
bears the onus in terms of section 192 of the Labour
Relations Act,
1995 ("the LRA") to establish the existence of the
dismissal. As set out above, the Second Respondent
found that the
dismissal was not established.
[5]
The Applicant gave evidence that he was accused of theft on 29
September 2008. The Applicant's version was that such allegation
was
made by a person merely referred to as "Colby" in the
award.
[6]
I proceed to quote the further evidence as recorded in the award of
the Second Respondent:
‘
3.1.2
He further submitted the said Colby told him that the Respondent’s
(i.e. the employer) is in possession of the CD
showing him stealing.
He further submitted that he requested to watch the CD but he was
told it is not available. He stated the
said Colby is the person
that the Respondent use when wanting to dismiss its employees. He
further submitted that Colby said
why he does not want to sign the
resignation letter because the other employee confessed to stealing
and he has signed the resignation
letter. He submitted that on 29
September 2008 he was forced to sign the resignation letter.
3.1.3.
The Applicant submitted that on 1 October 2008 his manager David
told him that he has been suspended. He further submitted
that on 19
December 2008 his manager David told him that he was not dismissed
but the Respondent has accepted his resignation
of the 29
th
September 2008.
3.1.4.
The Applicant submitted on that 30 November 2008 he went to the
Advice Centre and on 5 January 2009 the Respondent told
them that
Applicant can do what ever he wants because he resigned. The
Applicant stated the he wrote 5 January 2009 as date of
dismissal
because he was told that he resigned on 29 September 2008.’
(sic)
[7]
Under the heading "Analysis of Evidence in Argument", the
Second Respondent, in her award, notes the following:
'4.2
In the absence of an alternative version, I have no option but to
accept the evidence presented to me by the Applicant.
4.3.
On the Applicant's own version he submitted that he was forced to
sign the resignation letter. Further on perusal of documents
the
Applicant signed a resignation letter and on the said letter it is
stated that "I do this written resignation letter
out of my own
free will". I am unable to find how the Applicant was forced to
resign.’ (sic)
The_reyiew
application
[8]
The Applicant completed a standard
pro
forma
review application. This being a
pro
forma
template obtained from the Registrar's office.
[9]
Inasmuch as the review application was late, the Applicant makes
certain allegations in support of his condonation application.
The
condonation application was not opposed on the papers. Ms Wessels,
at the hearing, also confirmed that the Applicant’s
application for condonation was not opposed. In the absence of
opposition to the condonation application and for reasons set
out in
this judgment, essentially relating to prospects of success, I have
condoned the late filing of the review application.
[10]
On 9 June 2009, the First Respondent filed a notice in terms of Rule
7A(3) of the Rules of the Labour Court. This constituted
notice of
the filing of the record of the arbitration proceedings with the
Registrar of this court. The Rule 7A(3) notice provides
that the
CCMA "evenly herewith" files the following:
10.1.
LRA Form 7.11;
10.2.
Certificate of Outcome;
10.3.
Default Arbitration Award;
10.4.
No audio recordings as the matter was not electronically recorded
(sic). (The Rule 7A(3) Notice itself highlighted this
provision).
[11]
It is apparent from the Notice filed that no hand written notes of
the arbitration were kept either. Had there been hand
written notes
the Rule 7A(3) Notice would have made reference thereto. There was
no contrary submission and/or evidence before
the court. This court
is accordingly saddled with having to determine the review
application without a record of the arbitration
proceedings. The
Second Respondent’s failure to produce the record, on its own,
constitutes a reviewable irregularity.
2
The
absence of a record of the arbitration proceedings
[12]
I must point out that no issue is raised in the opposing affidavit
registering any protest with regard to the failure of
the Applicant
to place before this court a record of the proceedings. It appeared
that it had only become apparent to Ms Wessels
during the course of
submissions on the day of the hearing that there was indeed no audio
recording of the CCMA proceedings.
This was when same was drawn to
the attention of Ms Wessels.
[13]
Ms Wessels sought to convince me that the Third Respondent had taken
issue with the "incomplete record" filed by
the Applicant.
She drew my attention to Item 5 in the Index to the court bundle
which makes references to "Applicant's Purported
Notice in
terms of Rule 7A(6)" (my emphasis). This was the high watermark
of Ms Wessels’ submission in this regard.
I was at a loss as
to what "Purported Notice in terms if Rule 7A(6)
M
meant and Ms Wessels was unable to convince me that "purported”
was an objection to the filing of the inadequate record.
Ms Wessels
was also unable to direct me to any further evidence where it was
brought to the attention of the Applicant that the
record was
lacking and/or the consequence thereof.
[14]
This is an appropriate juncture to interpose and note that the issue
of the missing record was raised
mero
motu
by the court and not the parties. Whilst I accept that the general
principle is that the role of the reviewing court is limited
to
deciding issues raised in the review proceedings (and this
submission was not made by either party) and the court may not,
on
its own, raise issues which were not raised by the party who seeks
to review an arbitration award, this proposition was recently
dealt
with by the Constitutional Court in
Commercial
Workers Union of South Africa v Tao Ying Metal Industries and
Others.
3
In this regard, the court held that there is much to be said ‘for
the submission by the workers that it is not for the
reviewing court
to tell a litigant what it should complain about’.
4
The Constitutional Court went further to say that in particular, the
LRA specifies the grounds upon which arbitration awards
may be
reviewed. A party who seeks to review an arbitral award is bound by
the grounds contained in the review application. These
principles
are, however, subject to one qualification it was held (by the
Constitutional Court in
CUSA
v Tao Ying (supra))
- where a point of law is apparent on the papers, and the parties
proceed on a wrong perception of what the law is, the court
is not
only entitled, but is, in fact, also obliged,
mero
motu,
to raise the point of law and require the parties to deal therewith.
The failure of a court to do so, would be a decision premised
on an
incorrect application of the law and an infringement of the
principle of legality. I accordingly raised my concerns with
regard
to the lack of the record and heard submissions from the parties on
this issue at the hearing of this application.
[15]
No attempt has been made by any of the parties to reconstruct a
record of the arbitration proceedings. Obviously, the Third
Respondent would not have been in a position to assist in this
regard inasmuch as it was not a party to the arbitration
proceedings.
[16]
It is trite that there is an obligation upon an Applicant in a
review application to place before a court the record of the
proceedings which are subject to the review application. Where the
Applicant neglects to do so, the Applicant obviously runs
the risk
of the application either being struck off the role or being
dismissed.
5
[17]
Molahlehi J in
Solidarity
obo Botha v CCMA and Others (supra)
held that the exception to the aforementioned rule is that the court
"may consider the review even in the absence of the
transcript
where it has been shown that the cassette tapes are missing or the
parties are unable to reconstruct the record".
6
This is an important exception. For reasons set out below, I am of
the view that a further exception exists in the interests
of both
fairness and justice. My reasons in support of this view and the
basis of the exception are dealt with further below.
However, it is
necessary to initially commence with an analysis of the law relating
to an absent record.
[18]
The CCMA is obviously not a court of law. This was confirmed in the
landmark decision of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
7
CCMA commissioners, however, exercise public power which impacts
upon the parties before them. Navsa AJ concluded that an arbitrating
CCMA commissioner performs an administrative function. As an
administrative functionary the CCMA arbitrator essentially derives
her power and obligations from the LRA.
[19]
In
CUSA
v Tao Ying (supra)
Ngcobo J reiterated that the role of the Labour Court was to oversee
the arbitration process.
8
This overseeing function is conducted by way of the review power
granted to the Labour Court in terms of Section 145 of the LRA.
[20]
Curiously though, the LRA is silent with regard to the obligation of
the Commissioner to keep a record of the arbitration
proceedings.
This apparent lacuna is plugged by Rule 36 of the Rules for the
Conduct of Proceedings before the CCMA.
[21]
Rule 36(1) of the CCMA Rules provides that a Commissioner must keep
a record of:
21.1.
Any evidence given in an arbitration hearing;
21.2.
Any sworn testimony given in any proceedings before the
Commissioner; and
21.3.
Any arbitration award ruling made by a Commissioner,
[22]
Rule 36(2) provides that the record may be kept by "legible"
handwritten notes or by means of an electronic recording.
Rule 36 is
couched in peremptory terms and must accordingly in my view (as
would appear in any event to be the prevailing practice)
be complied
with by the Commissioner.
[23]
The Commissioner obviously has an option of either recording the
proceedings electronically or by means of "legible"
handwritten notes. In
Lifecare
Special Heath Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA
and Others,
9
the Labour Appeal Court, however, noted that it "Is certainly
true that Commissioners are encouraged to make use of electronic
recording equipment whenever possible". This was said in the
context of an affidavit filed by the CCMA in which the following
was
alleged:
‘
33.2
Commissioners do not keep copious and detailed notes of hearings.
33.3.
The proceedings are recorded and Commissioners listen to evidence
that is led. Awards are usually handed down without transcribed
recordings being made available to Commissioners beforehand.'
[24]
In this matter, the Second Respondent chose not to keep an audio
recording of the default arbitration proceedings. It would
also
appear, having regard to
inter
alia
the Rule 7A(3) Notice, that the Second Respondent neglected to keep
any handwritten notes of the proceedings. No explanation
is
furnished for such omission. It is not too much for a review court
to expect an explanation for such omission from a functionary
of
State. An explanation would have been useful to the parties and the
court.
[25]
Basson J in
Doompoort
Kwik Spar CC v Odendaal and Others,
10
summarised
the law in respect of absent records in the following terms (and I
can do no better than quote from the dicta of Basson
J):
‘
[4]
An Applicant has a right to a reasoned award in respect of the
dispute that was adjudicated before the CCMA. When an award
is the
subject of a review application, the record of the proceedings
before the statutory body will also become important. See
Uee-Dantex
Explosives (Pty) Ltd (supra).
In fact, once a party has filed its notice of motion and founding
affidavit, he or she has the right to the record of the proceedings
insofar as it may be necessary for the purposes of the review. In
this regard Rule 7A(8) of the Rules specifically provides that
an
Applicant in review proceedings may ... supplement the supporting
affidavit filed in the review application in light of the
record of
the proceedings. An applicant who is not afforded this opportunity
by virtue of an incomplete or non-existent record
may well be
prejudiced. The COMA is a creature of statute and as such it derives
its powers and obligations from the LRA. It
is therefore obliged to
adhere to these statutory imposed duties - most notable for purposes
of this judgment - to keep a proper
record of the proceedings
conducted before it.
[5]
There is, however, clear authority to the effect that the mere fact
that there is not a record, does not necessarily imply
that the
matter should as a matter of course be remitted to the CCMA. Even
where parties have endeavoured to reconstruct the
record and it is
not possible, the court will likewise not as a matter of course
remit the dispute to the CCMA, See
Nathaniel
v Northern Cleaners Kya Sands (Pty) Ltd and Others
(2004) 25 ILJ 1286 (LG) where the court declined to remit the matter
to the CCMA but decided to proceed to determine the case
on all the
available evidential material before it See also
Fidelity
Cash Management Services (Pty) Ltd v Muvhango NO and Others
(2005) 26 ILJ 876 (LC). In the latter case, the court followed the
decision in the
Kya
case. However, in two cases the court was willing to refer the
matter back to the CCMA: See
Uee-Oantex
Explosives (Pty) Ltd (supra)
and
Shoprite
Checkers Ltd (supra).
In these two cases it was taken into account that no record was
available. It was concluded that the commissioner's failure to
produce the recorded constituted a reviewable irregularity.
[7]
Where there has been no mechanical transcribing of the proceedings,
the applicant is still obliged to reconstruct the record
as far as
possible. See
Ndlovu
vs Mullins
A/,0
and
Another(
1999)
20 ILJ 177 (LC). Parties who seek relief on the basis of an
incomplete record run the risk of being unsuccessful purely
on this
basis. See
Metalogik
Engineering and Manufacturing CC v Fernandes and Others
(2002) 23 ILJ 1592 (LC). Where an applicant in review proceedings
fails to provide a transcription of the handwritten records
and/or
the cassette tapes, the court will be unable to adjudicate the
review application and may find that it is not entitled
to interfere
with the award. The court will not, as already stated, as a matter
of course set aside an award and remit the matter
to the CCMA for
rehearing merely on the basis that the record is incomplete
especially in circumstances where the applicant has
taken no steps
to reconstruct the record. In such circumstances the court will
decide whether or not the award is reviewable
by looking at all the
evidence available, the documentary evidence and the record as
incomplete as it may be.’ (footnote
omitted)
26.
From the above, it is apparent that the line of authority regarding
the failure of an applicant (and/or the parties) to place
before a
court a proper record of the proceedings is now well established.
[27]
The Second Respondent in paragraph 4.1 of the award specifically
provides that ‘if, in this analysis, certain evidence
is not
referred to, this does not imply it has not been considered’,
It was the undisputed evidence of the Applicant that
he was "forced
to sign” a letter of resignation. Notwithstanding such
uncontroverted evidence, the Second Respondent
proceeds to conclude
in paragraph 4.3 of the award that having regard to the letter of
resignation which provides that ‘I
do this written resignation
out of my own free will
1
that she is ‘unable to find how the Applicant was forced to
resign'. I pause to mention that the Applicant in paragraph
8 of his
founding affidavit alleges
"Commissioner
Elizabeth Lerumo ... interviewed me, and I gave her my
whole
clear
story
of exactly what has happened"
(my emphasis). In the absence of a record of the arbitration
proceedings, this court is not in a position to properly adjudicate
on the review application or even determine whether the Second
Respondent properly applied her mind to the Applicant’s
’’whole clear story". I put this to Ms Wessels who
was unable to advance a solution on how I was to overcome
such
dilemma.
[28]
Ms Wessels did, however, seek to persuade me that inasmuch as the
Applicant was
dominus
litus
he bore the full responsibility in placing the record before the
court. His failure to do so, so the argument went, must result
in
the dismissal of the review application. On the facts of this case,
I am not convinced that there is force in such argument,
I set out
below the reasons why I am not inclined to dismiss the review
application which interlinks with the question of the
further
exception, I made reference to earlier.
The
dismissal/striking of the review application on the basis of the
absent
record.
[29]
It is certainly not the fault of the Applicant that neither
electronic recording nor handwritten notes of the arbitration
proceedings were kept by the Second Respondent, (This was also not
suggested by the Third Respondent in argument) Such responsibility
lies solely with the Second Respondent.
[30]
In
Sidumo
(supra)
Navsa AJ, concluded that a reading of the just administrative right
clause in the Bill of Rights contained in section 33, provides
that
national legislation must be enacted to give effect to the right to
administrative action that is lawful, reasonable and
procedurally
fair,
11
I have already mentioned the authority which confirms that the CCMA
is not a court but an administrative organ. Section 145 of
the LRA,
concluded the court in
Sidumo
constitutes such national legislation in respect of "administrative
action" within the specialised labour law sphere.
The right of
review which the Applicant seeks to assert is accordingly not a
"mere" statutory right but effectively
a constitutional
right. I put it to Ms Wessels that a dismissal of the review
application, as suggested by the Third Respondent,
would in the
circumstances of this case prejudice the Applicants right of review.
Ms Wessels reluctantly conceded this point.
[31]
Section 34 of the Bill of Rights guarantees everyone the right to
access to courts. This right and, consequently, the right
to seek
justice, which in a constitutional democracy must never be a mirage,
is an important "self-standing" right
which must be
jealously safeguarded by our courts,
35.1.
the requirements of Rule 7A;
35.2.
the requirement to place before this court a complete record,
35.3.
where the record is incomplete - to advise such party of the
obligations to reconstruct the record and of the consequences
of a
failure to place before the court a complete record; and
35.4.
that she may in appropriate circumstances be able to obtain pro bono
legal advice from a community legal center, a University
Law Clinic,
the SASLAW pro bono legal office (established at the various Labour
Courts), Legal Aid of South Africa (and furnish
the particulars of
such offices).
[36]
Where the lay litigant does not heed such advice, I submit that an
absent record in such circumstances would, depending upon
the facts,
warrant the consequences’ referred to by Molahlehi J in
Solidarity
obo Botha v CCMA and Others (supra).
[37]
It is necessary that I make reference to the
Boale
decision even though same was not referred to in argument. In
Boale
Francis J dismissed a review application instituted by
Boale
an individual who represented himself The
Boale
decision is distinguishable from the present case in that
Boale
himself was legally trained and in fact, was a prosecutor who was
dismissed by the National Prosecuting Authority,
Boale
was legally represented prior to the termination of the mandate of
his counsel. He accordingly had the services of both an attorney
and
counsel. A further distinguishing factor in the
Boale
decision is that a transcript of the proceedings was already in
existence and
Boale
had neglected to have the full transcript placed before the court.
The facts in
Boale
are entirely distinct from the present matter.
[38]
For these reasons, I accordingly do not believe that this case falls
within the general rule endorsed by Molahlehi J in
Solidarity
obo Botha and Others (supra)
that where an applicant fails to provide a full transcript of the
proceedings that the review application either be struck off
the
role or dismissed. The Applicant
in
ca$u
is not to blame and to saddle him with such a drastic consequence
would be to deny him his right of review and the right of access
to
the Labour Court. This cannot be countenanced on the facts of this
case.
[39]
In remitting the matter back to the CCMA, Ms Wessels argued that the
Third Respondent would be forced to incur further costs.
There is
force to such argument. The Third Respondent did not appear at the
arbitration proceedings and in remitting the matter
back to the CCMA
this will give the Third Respondent an opportunity to place its
version of events before another commissioner.
Whilst mindful of the
issue of costs, on balance, it appears to me that the Applicant's
right of review and access to the Labour
Court is the overriding
consideration.
[40]
I am therefore of the view that it would be fair to remit this
dispute to the CCMA for a hearing
de
novo
before a Commissioner other than the Second Respondent
[41]
The following order is accordingly hereby made:
41.1.
The default arbitration award issued by the Second Respondent under
the auspices of the First Respondent under case number
GAJB 496-09
dated 9 February 2009 is reviewed and set aside.
41.2.
The dispute between the Applicant and the Third Respondent is
remitted back to the First Respondent to conduct an arbitration
de
novo
before a Commissioner other than the Second Respondent.
41.3.
There is no order for costs
MAHOMED
AJ
ACTING
JUDGE OF THE LABOUR COURT
Appearances
For
the Applicant: In person
For
the Third Respondent: Ms E Wessels
Instructed
by: Du Randt Du Toit Pelser Attorneys
1
This
is obviously a correct conclusion to the extent that the finding
of
the Second Respondent is not found to be reviewable in relation to
the first question relating to the existence of the dismissal.
2
See
UEE'Dentex
Explosives (Pty) Ltd v Ma$eko and Others
(2001) 22 ILJ 1905 (LC) and
Shopnte
Checkers Ltd v CCMA and Others
(2002) 23 ILJ 943 (LAC),
3
(2008)
29ILJ 2461 (CC).
4
Id
at para 67,
5
See
Boale
v National Prosecuting Authority of South Africa and Others
(2003) 10 BLLR 988
(LC) at para 5 and
Solidarity
obo Botha v CCMA and Others
(2009) 3 BLLR 257
(LC) at para 14.
6
Solidarity
obo Botha v CCMA and Others (supra)
at para 15.
7
(2007)
28 ILJ 2405 (CC) at para 88.
8
CUSA
v Tao Ying (supra)
at para 57.
9
(2003)
24 ILJ 931 (LAC) at para 6.
10
(2008)
29 ILJ 1019 (LC) at paras 4 - 7.
11
Sidumo
{supra)
at para 89.