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[2012] ZALCJHB 28
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Mabitsela v Department of Local Government (JR 1006/11) [2012] ZALCJHB 28; [2012] 8 BLLR 790 (LC); (2012) 33 ILJ 1869 (LC) (7 February 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 1006/11
In the matter between:
KHOMOTSO CHRISTINA
MABITSELA
….......................................................
Applicant
and
DEPARTMENT OF LOCAL
GOVERNMENT
& HOUSING
….....................................................................................
First
Respondent
GPSSBC
….....................................................................................
Second
Respondent
MR SEOPELA
…................................................................................
Third
Respondent
Heard
:
24
January 2011
Delivered: 07 February
2012
Summary:
Review
application – the right to interpretation.
JUDGMENT
MOLAHLEHI J
Introduction
This is an application
to review and set aside the arbitration award made by third
respondent (the arbitrator) under case number
GPBC1028/2011 dated 18
March 2011. In terms of that arbitration award, the arbitrator found
the dismissal of the applicant on
charges of fraud to have been both
procedurally and substantively fair.
The review application
was unopposed.
Background facts
Mrs Mabitsela, the
applicant in this mater was together with her immediate superior, Dr
Sefala charged with an offence related
to fraud. Both Mrs Mabitsela
and Dr Sefala are employed in the Department of Local Government and
Housing and were responsible
for the transfer and registration of
property. They were both charged with fraud relating to the illegal
transfer and registration
of a property. The property in question is
site number 268E in Seshego.
According to Mrs
Mabitsela, the site ran into arrears in terms of payment of rates
and taxes. Because of this, the local authority
had placed the
property on auction.
It would seem Mr
Mabitsela, the husband to the applicant concluded an agreement to
purchase the property from the owner. Mrs Mabitsela
says her role in
this transaction was limited to having to sign the relevant purchase
documents as she and Mr Mabitsela are married
in community of
property.
Mrs Mabitsela says that
they later after purchasing the property but before it was
registered in their names, decided to sell
it because of the rising
costs of rates and taxes. The site was sold to Mr Sebola by the
Mabitselas.
The grounds of review
Mrs Mabitsela contends
that the arbitration award is reviewable because:
-the arbitrator
incorrectly said that she did dispute the charge of fraud against
her.
the sanction of
dismissal was too harsh
the arbitrator failed to
take into account that it was not her who cheated but Mr Maredi and
Mr Magano
the arbitrator required
to mitigate before she was informed of the outcome of the
disciplinary hearing
the notice of dismissal
was sent to PSA which is not her union and was not represented by
it.
The applicant further
complained that the arbitrator interfered with the proceedings and
would regularly switch off the tape so
that her arguments would not
be recorded. The complaint of Mrs Mabitsela is that there are
instances where the arbitrator would
remain behind with the first
respondent and have discussions.
The other submission
made by Mrs Mabitsela is that the arbitration award is reviewable
because the arbitrator deferred to the
decision of the chairperson
of the disciplinary hearing in that his award is the same as that of
the chairperson of the disciplinary
hearing.
The arbitrator’s
arbitration award
Under the heading
“Background Facts” the arbitrator notes that the case of
the applicant was that the first respondent
was not consistent in
the application of its policies because the respondent had decided
to charge accomplice, Dr Sefala with
a lesser offence of gross
negligence whilst she was charged with fraud.
In finding that the
dismissal was procedurally fair, the arbitrator rejected the
contention of the applicant that the procedure
was unfair because
the first respondent had addressed the notice of termination of
employment to the PSA and not to herself.
As concerning the delay
in communicating the decision to terminate the applicant's
employment by five days the arbitrator found
that that was not
unfair as the applicant failed to show that she was prejudiced by
that delay.
As concerning
substantive fairness, the arbitrator rejected the contention of the
applicant that the first respondent had inconsistently
applied the
disciplinary procedures. The arbitrator in rejecting the applicant’s
contention held that: ‘the applicant
and Dr Sefala did not
commit the same offences to receive the same sanction’
Evaluation
It is important to
mention that no evidence was led in this matter. Although it is not
clear from the record, it seems that before
the hearing commenced
some sort of an agreement was reached between the representatives of
the parties. The key agreement seems
to have been that the applicant
conceded to the charge of fraud and that she was to challenge only
the inconsistent application
of the discipline by the first
respondent.
The
applicant challenges the arbitration award of the
arbitrator
on the basis that she was not provided with the
assistance of an interpreter although she had requested for such
assistance. She
submits in this respect that she could not follow
the proceedings.
The right to have the
proceedings interpreted is well set out and has received attention
in the criminal law field both in our
jurisprudence and
internationally. In this respect section 35 [3] [K] of the
Constitution provides that an accused person has
a right to a fair
trial which includes the right to be tried in a language that an
accused person understand or if that is not
practicable to have the
proceedings interpreted in that language. The right to
interpretation is a key element of both the right
of access to
courts and the independent impartial dispute resolution bodies as
provided for in terms of section 34 of the Constitution.
This
principle is also found in article 14 of the International Covenant
on Civil and Political Rights (ICCPR) which provides:
‘
All
persons shall be equal before the courts and tribunals. In the
determination of any criminal charges against him, or of his
rights
and obligations in a suit at law, everyone shall be entitled to a
fair and public hearing by a competent, independent and
impartial
tribunal established by the law.’
The Principle and
Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa provided for in the African Charter for
Human Right (ACHPR),
which our country has ratified, provides amongst others that:
‘
2
(g) an entitlement to the assistance of an interpreter if he or she
cannot understand or speak the language used in or by the
judicial
body.
’
In
terms of the principle of access to courts and other independent
dispute resolution bodies as set out in section 34 of the
Constitution, there is a positive obligation on those conducting
proceedings to inform litigants of their rights and entitlement
to
interpretation when proceedings are conducted in a language other
than their own and when they would not be in a position
to
understand the proceedings when conducted in any other language. The
duty is less onerous when a litigant is represented by
someone else
during the proceedings. In that instance the
arbitrator
can
reasonably assume (unless the representative raises the issue of the
need for an interpreter) that same is not necessary.
However the
duty remains intact where the request for interpretation is made
even where the litigant is represented.
Thus failure to ensure
that a party in an arbitration hearing enjoys the right to be
assisted in participating and understanding
the proceedings
axiomatically, is a denial to a fair hearing which must render those
proceedings reviewable.
In the present instance,
the request for interpretation was made in writing to the CCMA by
the applicant in the letter dated 27
July 2010 which reads as
follows:
‘
APPLICATION
FOR AN INTERPRETOR
I
wish to apply for an interpreter for the hearing on arbitration on
the date to be set who will interpret in my mother tongue North
Sotho.’
In
the face of the above letter, the
arbitrator
was
duty bound to ensure that the services of an interpreter was made
available to the applicant. It seems to me that had the
interpreter
been made available, the applicant would have appreciated the import
and the implications of the concession which
her representative was
making on her behalf and in all probabilities would have objected
and withdrawn his mandate.
The
other ground upon which the arbitration award stands to be review
concerns the other allegations made against the arbitrator.
The
arbitrator is accused of several acts of misconduct and irregular
manner in which he conducted the proceedings. These allegations
have
not been denied by any of the respondents and in particular the
arbitrator. Reading through the record there is no reason
to doubt
the truthfulness of the complaints against the
arbitrator
made by the applicant
. The main complain in this
regard is that the arbitrator had private discussions with the
representatives of the other side.
In light of the above, I
am of the view that the arbitrator committed misconduct and gross
irregularity which have vitiated the
arbitration award.
In the premises the
following order is made:
The third
respondent’s arbitration award is reviewed and set aside.
The matter is
remitted back to the second respondent to be considered afresh by
an arbitrator other than the third respondent.
There is no order as
to costs.
______________
Molahlehi J
APPEARANCES:
FOR THE APPLICANT: Dan
Gobile instructed by: Karabo Labour Organisation
FOR THE FIRST RESPONDENT:
No appearance.