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[2012] ZALCJHB 14
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Liwambano v Department of Land Affairs and Others (JR 1127/07) [2012] ZALCJHB 14; [2012] 6 BLLR 571 (LC); (2012) 33 ILJ 1862 (LC) (17 February 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 1127/07
In the matter between
K M LIWAMBANO
….................................................................................................
Applicant
and
DEPARTMENT OF LAND AFFAIRS
….......................................................
First
Respondent
GPSSBC
….............................................................................................
Second
Respondent
PRAKESH ROOPA N.O.
…........................................................................
Third
Respondent
Heard: 19 January 2012
Delivered: 17 February 2012
Summary:
JUDGMENT
LEPPAN AJ
[1] The Applicant seeks to review and set aside the
arbitration award handed down by the Third Respondent on 5 April
2007. The date
when the Applicant's review application was filed at
Court was 31 May 2007.
[2] The Applicant's application was brought
in terms of Section 145(1) of the Labour Relations Act, as amended
("the LRA")
1
.
[3] In terms of Section 145(1)(a) of the LRA, such a
review application must be brought within six weeks of the date of
receipt
of the arbitration award.
[4] According to the information available on the Court
file, the six week period in this matter expired on 17 May 2007.
[5] The Applicant attested to his founding affidavit in
Bloemfontein on 17 May 2007. The Applicant's attorneys, Mr M Khang,
signed
the notice of motion in Bloemfontein on 17 May 2007. Mr
Khang's covering letter to the Registrar of this Court is dated 18
May
2007 and it enclosed the review application.
[6] There is no explanation why the review application
was only filed at this Court on 31 May 2007. Furthermore, the
Applicant has
not instituted an application for condonation for such
late filing.
[7] On the face of it, the Applicant has not complied
with the provision of Section 145(1) of the LRA and on this ground
alone the
review should ordinarily fail.
[8] This is not the only material difficulty posed by
the Applicant's conduct in this matter.
[9] On 6 June 2007, the secretary of the Second
Respondent despatched to the Registrar of this Court the following
documentation
and materials, in compliance with its obligations in
terms of Rule 7A(2)(b) of the Rules of Practice and Procedure in this
Court,
namely -
the arbitration award;
the Applicant's dispute referral form to the First and
Second Respondent;
notices of set down of the arbitration hearing;
attendance registers indicating the names of the
persons in attendance at the arbitration;
a certificate of outcome of non-resolution of the
dispute;
the handwritten notes of the Third Respondent;
three cassette tapes containing the evidence led at
the arbitration hearing.
[10] The Second Respondent's Rule 7A (2) (b) notice was
received by the Registrar of this Court on 18 June 2007.
[11] In terms of Rule 7A(6), the Applicant was obliged
to furnish the Registrar and each of the parties with a copy of the
record
or portion of the record relied upon and any additional
reasons as may have been supplied by the relevant trier of facts.
Thereafter,
the Applicant had 10 Court days, calculated from the date
when the Registrar made the record available, in which period it is
incumbent
upon the Applicant to deliver a notice indicating whether
he stood by, or wished to amplify, his notice of motion and deliver a
supplementary affidavit if required.
[12] On 28 November 2007, the Applicant served the
following-
the handwritten notes of the Third Respondent;
the "record of documents" comprising those
items listed at paragraphs 9.1 to 9.5 of this judgment;
a transcript of the evidence led at the arbitration
hearing prepared by Lubbe and Meintjies Inc ("the
transcribers")
on 30 October 2007.
[13] The record of proceedings and the Applicant's
notice in terms of Rule 7A (8)(b) was delivered to the parties and
filed with
the Registrar on 29 November 2007, some six months later.
No explanation for this delay has been proffered by the Applicant.
[14] The transcript of the evidence prepared by the
transcribers starts with a caveat by its typist as follows:
‘
Typist
Note: sound quality
extremely
poor.
Struggled to hear what is being said. Plenty inaudible...’
[15] Attempting to read this transcription was taxing.
Often enough important questions that were posed, for which it was
apparent
that answers were given, could not be read or understood due
to the numerous inaudible portions.
[16] The handwritten notes of the Third Respondent were
illegible. These handwritten notes comprise 77 pages.
[17] These obvious defects in the record of proceedings
were brought to the attention of the Applicant and his attorneys on
19 November
2008 when the First Respondent delivered its answering
affidavit. These problems were set out in the answering affidavit of
Mr
Thandukwazi Mtethwa ("Mtethwa") who is the Legal
Administration Officer of the First Respondent –
‘
The
record of proceedings of the arbitration has been despatched by the
Bargaining Council (Second Respondent). The transcribed
record is not
much helpful because of many inaudible (sic) in it. Together with the
transcribed record, was attached the handwritten
notes of the
arbitrator. However the handwritten notes are also not much helpful
because of the handwriting…The First Respondent
has since
suggested to the Applicant that the handwritten notes be transcribed
by the Applicant as dominus litis and have them
served on the First
Respondent in order that an answering affidavit be filed. To date,
the Applicant has neglected to have the
handwritten notes transcribed
nor has the Applicant taken steps to reconstruct the inaudible
record’.
2
[18] On 19 November 2008, the First Respondent delivered
its answering affidavit, because the Applicant had taken steps to try
and
prevent it from doing so even though the record of proceedings
did not constitute a complete or proper record at that time.
[19] In response to these averments, the Applicant
attested to his replying affidavit on 31 December 2008, some 23 days
late and
again with no explanation why the five day period provided
for in Rule 7A(10) was ignored. In his replying affidavit, the
Applicant
averred that the complaint about an incomplete and
unintelligible record of proceedings arose only on 4 November 2008.
Be that
as it may, the record of proceedings has always been and
remains unintelligible.
[20] On 4 February 2010, this matter came before Mr
Justice A van Niekerk and was postponed
sine die
. When this
matter was re-enrolled on 19 January 2012, this Court enquired about
the reason for this postponement. The Applicant's
attorney, who has
been involved throughout this matter, stated that it was because one
aspect of the Third Respondent's award appeared
to be incomplete.
This portion of the award under scrutiny reads as follows:
Page 25 of the Record
‘
... I
therefore find no merit for the proposition that the Applicant had a
legitimate expectation of being permanently employed
indefinitely.
The same can be said about the argument that he had an expectation
that
his
Page 26 of the Record
His employment
status and
informed of the reasons the Respondent did not convert his contract,
so it can hardly be the case that he was not given
an opportunity to
deal with the refusal of the Respondent to do so...’
[21] The Applicant's attorney claimed he had queried
this aspect with the Third Respondent and was subsequently informed
by the
Third Respondent that the award was complete. On a scrutiny of
the correspondence between the Applicant's attorney and the Third
Respondent, in which confirmation was received to this effect, it was
evident that the letter was dated in advance of the date
when this
matter was before Mr Justice van Niekerk.
[22] According to the First Respondent's Counsel, Mr W R
Mokhari SC, there was a different reason for the postponement. This
was
articulated in his supplementary heads of argument where it is
stated that-
‘
The
purpose of these supplementary heads is to deal with certain matters
which impact on the review application. Those matters relate
to steps
that the Applicant failed to take despite being alerted to by the
First Respondent in the answering affidavit, and despite
the fact
that the matter was postponed on the previous occasion due to non
compliance by the Applicant with the rules of the Court
relating to
the filing of a complete record with the Court
.’
[23] The point remains that for the period from 28
November 2007 to 19 January 2012, a period of over four years, the
Applicant
has made just about no effort to have the Third
Respondent's bench notes transcribed and nor did he attempt a
reconstruction of
the transcript of evidence inspite of the
willingness of the First Respondent to co-operate in that regard.
[24] At the hearing of this matter, the Applicant's
attorney informed this Court that he would place no reliance on the
transcript
of evidence given the fact that it was pockmarked with
enumerable passages marked inaudible. After the argument presented by
the
First Respondent's Counsel, the Applicant's attorney, on
realising his difficulties in this matter, requested this Court to
have
regard to the Third Respondent's handwritten bench notes in
order that this Court should determine what is relevant and what is
not. This Court has obviously declined to do so. It is not the place
of this Court, even as a Court of equity, to aid a litigant
who has
acted in a tardy and grossly negligent fashion in prosecuting a
review application that has been contaminated by egregious
delays.
[25] In the case of
Metalogik
Engineering and Manufacturing CC v Fernandes and Others,
3
the Labour Court held that it cannot review an
arbitration award on its merits without a proper record of what
transpired in the
arbitration hearing. The Applicant is obliged, in
the absence of a coherent transcription of the record of evidence led
at the
arbitration, to reconstruct the record.
[26] In the case of
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA
and Others,
4
the Labour Appeal Court explained how a reconstruction
of a record should be undertaken as follows:
‘
the
tribunal (in this case the Commissioner) and the representatives...
come together, bringing their extract notes and such other
documentation as may be relevant. They then endeavour to the best of
their ability and recollection to reconstruct as full and
accurate a
record of proceedings as the circumstances allow. This is then placed
before the relevant Court with such reservations
as the parties may
wish to note...
’
[27] The Applicant was mindful that the Third
Respondent's bench notes were largely illegible. In fact, on 29 March
2010, the Applicant's
attorney sent a letter to Krino Transcription
Services to have these handwritten notes transcribed. This never
materialised and
there is no indication that the Applicant bothered
to pursue the issue.
[28] All that was necessary in this matter was for the
Applicant to:
call upon the Third Respondent to read his handwritten
notes into the record and have same transcribed;
call upon the Second Respondent to convene a meeting
of the parties, attended by the Third Respondent, to reconstruct
the missing
portions of the record of evidence already prepared by
the transcribers on 30 October 2007.
[29] There is no good and sufficient reason why the
Applicant did not seize upon these initiatives in order to produce a
proper
record. In fact, no attempt has been made by the Applicant to
reconstruct, yet it was his obligation to do so.
[30] In the case of
JDG
Trading (Pty) Ltd t/a Russells vs Whitcher NO and Others,
5
the Labour Appeal Court made it clear that an Applicant
who seeks relief in a review on the basis of a defective record runs
the
risk that it will be unsuccessful on that ground alone. This must
be based on the simple principle that ‘evidence at the heart
of
the attack on the decision of a Commissioner must be “properly
available” to the reviewing Court.’
[31] In as much as the Applicant's attorney suggested
that the record of the evidence led at the arbitration hearing before
the
Third Respondent be ignored, it is interesting to note that in
the review application, the grounds for review were that the Third
Respondent committed a gross irregularity by-
failing to apply his mind to the facts of the matter
and applicable legal principles;
31.2 failing to consider relevant facts and considering
irrelevant ones instead; and
31.3 his decision is not supported by the facts and
evidence led at the arbitration.
[32] The Applicant never amplified his papers upon
delivering the record. This led the Applicant to the following
argument, on one
hand, the Applicant expected this Court to consider
his challenge to the Third Respondent's alleged misdirection on the
facts established
in the arbitration proceedings, and simultaneously
the Applicant expected this Court to ignore the incomplete transcript
of evidence.
These approaches were manifestly incompatible. This is
not what this Court is tasked to do nor is it acceptable for a Court
to
entertain a guessing game about what evidence was tendered in the
arbitration proceedings.
[33] Lastly, and as an aside, what is apparent from the
Third Respondent's detailed award is that the Applicant was
dissatisfied
that after three of his fixed term contracts with the
First Respondent were renewed, his employment was not made permanent
by the
First Respondent. In that regard, he claimed an unfair
dismissal and an unfair labour practice.
[34] The Third Respondent stated at page 19 of the
arbitration award:
‘
the
Department (of Land Affairs) is tasked to deal with the issue of land
restitution in terms of the Land Restitution project.
The period
during which it was to finalise its work was extended on a number of
occasions, which resulted in its offering fixed
period contracts to
its employees which were extended on a number of occasions. The fixed
term contracts of the Applicant were
extended on at least 3
occasions. Initially, the project was to have been completed by
December 2005, which was then extended to
2008. As a result thereof,
and as result of the concerns of employees as to their situation
beyond that period, the Respondent
sometime in 2003 – 2004,
agreed to convert the fixed term period contracts to permanent
contracts in order to create stability
and job security for the
contract employees who opted for such conversion.’
[35] It was common cause on the affidavits exchanged
between the parties in the review that the Applicant had been
employed as one
of these fixed term contract employees who was given
the option to apply to convert his fixed term contract status to that
of a
permanent employee of the First Respondent. In opting to apply
for such conversion, the Applicant's attorney conceded in argument
that the Applicant had no guarantee, or legitimate expectation, that
he would be appointed to a permanent position. The Applicant
had
specifically agreed in the written application for conversion that in
the event that his conversion application failed he would
simply be
required to serve out the remaining unexpired portion of his third
and last fixed term contract.
[36] It is also common cause that the Applicant, in the
same manner as the other fixed term contract employees, was subjected
to
an internal and external assessment to determine his suitability
for appointment to such permanent positions. The internal process
was
reliant on various factors such as performance, disciplinary and work
records and the like. The external assessment was conducted
by a
completely external and independent service provider to the First
Respondent, SHL Consultants. The Third Respondent found
that these
two assessments were complementary to each other.
[37] It was also common cause that the Applicant was
unsuccessful in his application to be converted to a permanent
employee and
he served out the remaining period of his fixed term
contract. However, upon that expiry date passing, the Applicant
claimed an
unfair dismissal, yet at that very time he had agreed the
outcome of his conversion application if he was unsuccessful.
[38] I concur with the First Respondent's Counsel that
these concessions obtained from the Applicant's attorney in argument
drove
a wedge through the
causa
of the review application.
[39] In the circumstances, I find as follows:
The review application is dismissed with costs.
_______________
LEPPAN
Acting Judge of the Labour Court
:
APPEARANCES:
FOR
THE APPLICANT: Mr M Khang of Mphafu Khang Inc.
FOR
THE FIRST RESPONDENT: Adv W R Mokhari SC
Instructed by the State Attorney
1
66
of 1995.
2
(See:
pages 163 and 164 of indexed pleadings).
3
[2002]
10 BLLR 985
(LC).
4
[2003]
5 BLLR 416
(LAC) at para 17..
5
[2005] ZALC 1
;
[2001]
3 BLLR 300
(LAC).