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[2012] ZALCJHB 168
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Protech Khuthele (Pty) Ltd and Another v Wabile NO and Others (JR 179/11) [2012] ZALCJHB 168; (2013) 34 ILJ 1246 (LC) (12 October 2012)
Reportable
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
CASE NO: JR 179/11
In the matter between:
PROTECH KHUTHELE (PTY) LTD
...........................................................
First
Applicant
PELA PLANT (PTY) LTD
.....................................................................
Second
Applicant
and
KATHOLO WABILE
N.O
......................................................................
First
Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
..................................................
Second
Respondent
NATIONAL UNION OF MINEWORKERS
...........................................
Third
Respondent
Date of application: 11 October
2012
Date of judgment: 12 October 2012
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an
application to review and set aside an arbitration award issued by
the second respondent (‘the commissioner’).
The point
argued in these proceedings was limited, by agreement between the
parties and in terms of a directive issued by this
court, to one of
the grounds for review raised by the applicants. That ground is based
on the commissioner's failure to disclose
certain material facts to
the parties relating to his prior association with the South African
Commercial Catering and Allied Workers
union (SACCAWU), and in
particular, SACCAWU’s shared affiliation to the trade
federation COSATU with one of the parties before
the commissioner,
the National Union of Mineworkers (NUM). This case therefore concerns
the apprehension of bias not in the form
of a prior direct
association with any of the litigants before the commissioner, buthis
prior association with a trade union that
enjoys with one of the
litigants a shared affiliation to a trade union federation, and the
extent to which any shared values flowing
from those
associationsmight preclude the commissioner from bringing an
impartial and unprejudiced mind to bear on the resolution
of the
dispute before him.
Factual background
[2] The arbitration
proceedings under review were initiated consequent on the dismissal
for misconduct of individual members of
the first respondent, the
National Union of Mineworkers (NUM). The misconduct occurred during
the course of a strike called by
NUM in February 2009 in support of a
demand that the applicant recognise the union for collective
bargaining purposes. In December
2010, the commissioner issued an
award in favour of NUM, and found that the dismissal of the affected
employees was substantively
fair. He ordered their reinstatement,
with retrospective effect.
[3] It is common cause
that after receipt of the award, the applicants initiated an
investigation into the commissioner’s
background and discovered
that he was a senior official of SACCAWU, a registered trade union
and an affiliate of the trade union
federation COSATU.The applicants
discovered further that the commissioner had represented SACCAWU in
an arbitration hearing reported
in 2002, some eight years prior to
the proceedings under review. The award issued in those proceedings
is reported as
Robson/SACCAWU
[2002] 12 BALR 1341 (CCMA). The
precise nature of the commissioner’s status within the union is
not readily ascertainable
from the papers before me, nor are the
dates of his employment. I accept for present purposes the applicants
assertions that that
he was employed by SACCAWU, in a senior
position, prior to his appointment as a commissioner. It isnot
disputed that NUM, the first
respondent in these proceedings and the
applicant in the arbitration proceedings, is a registered trade union
and like SACCAWU,
an affiliate of COSATU.
[4] After completing
their investigation, the applicantsfiled an application to review and
set aside the award, raising some 40
grounds of review. As I have
indicated, these proceedings concern only what has been referred to
as the ‘recusal’ ground.
[5] The basis of the
applicants’ground for reviewconcerns SACCAWU’s
affiliation with COSATU, NUM’s affiliation
with the same
federation, the relationship between COSATU and its affiliates and in
particular, the COSATU’s objectives.
These objectives are
listed in COSATU’s constitution, and as one might expect from
any trade union federation here or abroad,
they include objectives
that relate to the protection and furtherance of the interests of
workers, the securing of social and economic
justice, and the
attainment of freedom from oppression and economic exploitation under
the leadership of a united working class.
The constitution also
requires that affiliates of the federation abide by the terms of its
constitution and the policies of the
federation.
[6] In essence, the
applicants contend that given the commissioner’s prior
employment by SACCAWU, given the fact that one
of the parties before
him (NUM) was like SACCAWUan affiliate of COSATU, might cause a
reasonable, objective and informed person
reasonably to apprehend
that he would and could not bring an impartial mind to bear on the
dispute before him. Put more robustly
(as it was in argument), the
applicants are concerned that the commissioner advanced the cause of
the dismissed employees unfairly
because as a supporter of COSATU, he
would seek to protect and further the interests of workers.The
applicants accordingly submit
that the commissioner’s failure
to disclose his interest in SACCAWU and less directly in COSATU,
constituted a reviewable
irregularity and that his award stands to be
reviewed and set aside on that basis.
The applicable
principles
[7] Although the CCMA is not a court
of law, the same test for disqualifying bias that applies to a judge
is applicable to a commissioner.
In broad terms, this requires a
commissioner to disclose all facts that might give rise to a
reasonableapprehension of bias. The
principle is captured in the
CCMA’s Code of Conduct for commissioners. Item 3(1) of the
Codestates:
‘
3.1
Commissioners should disclose any interest or relationship that is
likely to affect their impartiality or which might create
a
perception of partiality. The duty to disclose rests on the
commissioners
.’
Item 3.2 of the Code requires
commissioners, before being appointed to intervene in any matter, to
disclose to the CCMA
inter alia
the following:
‘
3.2.1
Any direct or indirect financial or personal interest in the matter;
3.2.2
Any existing or past financial, business, professional family or
social relationship which is likely to affect impartiality
or may
lead to a reasonable perception of partiality or bias..
.’
[8] Of course, not every failure by a
commissioner to disclose facts is actionable, just as not every
suspicion or perception of
bias has the consequence that an
arbitration award is reviewable. Commissioners are required to
disclose to the parties appearing
before them only those facts as
might reasonably be relevant to a recusal application.
1
[9] The crisp issue that arises for
decision in the present proceedings is therefor whether the fact of
the commissioner’s
prior association with SACCAWUmight
reasonably be relevant to a recusal application.
[10] The applicants rely on the
principles established in
BTR Industry South Africa (Pty) Ltd and
others v Metal and Allied Workers Union and another
2
,
where the court said the following:
‘
It
is a hallowed maxim that if a judicial officer has any interest in
the outcome of the matter before him (save an interest so
trivial in
nature as to be disregarded under the
deminimis
principle)he
is disqualified, no matter how small the interest may be … The
law does notnot seek, in such a case, to measure
the amount of his
interest. I venture to suggest that the matter stands no differently
with regard to the apprehension of bias
by a lay litigant. Provided
the suspicion of partiality is one which might reasonably be
entertained by a lay litigant a reviewing
Court cannot, so I
consider, be called upon to measure in a nice balance the precise
extent of the apparent risk. If a suspicion
is reasonably
apprehended, then that is the end of the matter.’
Further, in
Ndimeni v Meeg Bank Ltd
(Bank of Transkei)
3
the Supreme Court of Appeal found that a judgment of this court was a
nullity in circumstances where the acting judge concerned
ought to
have made disclosures in a dispute involving the dismissal of the
manager of a bank on account of his professional relationship
with
the bank. The court said the following:
‘
Counsel
for the respondent conceded that ZilwaAJ should have made disclosure
of his relationship with the respondent, in the circumstances
of this
case, and that the logical conclusion from his failure to do so was
that the proceedings before him would be a nullity….
There is
no reason, in my view, while the appellant or litigants in labour
disputes generally, should be denied the right to fair
trial, to
which everyone else is entitled. In cases where the judicial officer
refuses to recuse himself or herself when he or
she should in fact
have done so, what occurs thereafter, i.e. the continuation the
proceedings, is a nullity.
[11] I was also referred to two
judgments by this court dealing with the review of arbitration awards
in circumstances where the
awards where set aside on account of bias
in the form of prior association. The first is the judgment by Boda
AJ in
Daniel Sefafe v Sasol Infrachem& others
(unreported,
JR 1034/08) where the court held that an award was reviewable in
circumstances where a bargaining council arbitrator
was a director
and shareholder of an entity that supplied services to the employer
party. In
KwaZulu Transport (Pty) Ltd v Mnguni& others
(2001)
22
ILJ
1646 (LC), Pillay J held that a commissioner who
rendered services as a commissioner and as a labour consultant should
have recused
himself on account of a reasonable apprehension of bias
based on his dual role.
4
In
that case, the commissioner had, in his capacity as a labour
consultant, represented employees previously dismissed by the
employer
party. Further, the first respondent in the proceedings (a
shop steward) had previously referred matters to the commissioner,
acting
in the capacity of a consultant, for advice.
[12] All of these cases share the
common element of a relationship or association, in one form or
another,betweenthepresiding officer
and one of the parties to the
litigation. The
BTR
judgment concerned apresidingofficer
intheindustrial court who had during the course of litigation made a
presentation at a seminar
conducted by the industrial relations firm
that was an adviser to the employer party, whose advicewas material
to the case before
him. In doing so, the court found that he had
displayed too great an association with the firm and this would have
created a reasonable
apprehension of bias in the reasonable minds of
union officials. The
Meeg Bank
case more directly concerned a
commercial relationship between the presiding judge and one of the
parties (the acting judge concerned,
in his capacity as an attorney,
had received regular instructions from the bank that was a party to
the proceedings before him).
The
Sasol
and
KwaZulu
Transport
judgments similarly concerned direct professional
relationships between the arbitrator and one of the parties to the
dispute.In
the present matter, is not disputed that the commissioner
had no direct relationship with the NUM. As I have indicated, the
applicants’
complaint relates more indirectly to a prior
employment relationship between the commissioner and a trade union
sharing a common
affiliation with the trade union party before him.
. [13] In this sense, the facts of the
present case are more closely aligned with those in
President of
the Republic of South Africa and others v South African Rugby
Football Union and others
.
5
In
that case, the South African Rugby Football Union (SARFU) sought the
recusal of a number of judges of the constitutional court
on the
grounds of their past relationships either with then president
Mandela or with the African National Congress (ANC). SARFU
argued
that even though the ANC was not a party to the litigation, the
president and the ANC were so closely identified that a
past
relationship with the ANC amounted to a past relationship with the
president. The application for recusal was refused. In
his
judgment,Chaskalson P (as he then was) stated the following:
6
‘
Absolute
neutrality on the part of a judicial officer can hardly if ever be
achieved. There this consideration was elegantly described
as follows
by Cardozo J:
“
There
is in each of us a stream of tendency, whether you choose to call it
philosophy or not, which gives coherence and direction
to thought and
action. Judges cannot escape that current any more than other
mortals. All their lives, forces which they do not
recognise and
cannot name, have been tagging at them – inherited instincts,
traditional beliefs, acquired conviction; and
the resultant is an
outlook on life, a conception of social needs… In this mental
background every problem finds it[s] setting.
We may try to see
things as objectively as we please. None the less, we can never see
them with any eyes except our own….
Deep below consciousness
are other forces, the likes and dislikes, the predilections and
prejudices, the complex of instincts and
emotions and habits and
convictions which make the [person] whether [she or he] be litigant
or judge.”
It
is appropriate for judges to bring their own life experience to the
adjudication process. As it was put by Cory J in
R v S (RD)
“
It
is obvious that good judges will have a wealth of personal and
professional experience,that they will apply with sensitivity
and
compassion to the cases that they must hear. The sound belief behind
the encouragement of greater diversity in judicial appointments
was
that women and visible minorities would bring an important
perspective to the difficult task of judging.”
[14]
The court
added:
7
‘
In
a multicultural, multilingual and multiracial country such as South
Africa, it cannot reasonably be expected that judicial officers
should share all the views and even the prejudices of those who
appeared before them. In
S
v Collier
,
before the commencement of a criminal trial in the magistrate's
court, the accused insisted that he be tried by black magistrate.
The
white magistrate before whom the matter was called refused to recuse
himself. In dismissing an appeal against the decision,
Hlope J said:
“
Equally,
the apparent prejudice argument must not be taken too far; it must
relate directly to the issue at hand. In such a manner
that it could
prevent the decision maker from reaching a fair decision… Prof
Baxter gives a commonly cited example, namely,
the mere fact that a
decision maker is a member of the SPCA does not necessarily
disqualify him from adjudicating upon a matter
involving alleged
cruelty to animals….’
[15] In relation to the fact that
certain judges had a past close relationship with and membership of
the ANC, the court said the
following:
8
‘
That
a judge may have been engaged in political activity prior to
appointment to the bench is not uncommon in most if not all
democracies,
including our own. Nor should it surprise anyone in this
country. Upon appointment, judges are frequently obliged to
adjudicate
disputes which have political consequences. It has never
been seriously suggested that judges do not have political
preferences
or views on law and society. Indeed, a judge who is so
remote from the world that he or she has no such views would hardly
be qualified
to sit as a judge. What is required of judges is that
they should decide cases that come before them without fear or favour
according
to the facts and the law, and not according to the subject
of personal views. This is what the Constitution requires.
[16] More recently, in relation to the
question of perceptions of bias by reason of prior association,the
Constitutional Court has
affirmed that prior association with an
institution cannot for the basis of a reasonable apprehension of bias
unless the subject
matter of the litigation arises from the prior
association or activities.
9
Ngcobo
CJ, writing for a unanimous court, said the following:
‘
Most
judicial officers would have been engaged in a number of activities
in pursuit of their professional lives before the appointment.
These
activities contributed expertise the judicial officers bring to the
bench. What is required is that judicial officers should
decide cases
that come before them that fear, final prejudice, according to the
facts and the law, and not according to their objective
personal
views.’
10
Analysis
[17]
The above remarks are particularly apposite to commissioners
appointed to the CCMA under the Labour Relations Act. In terms of s
117 (1),the governing body of the CCMA must appoint as commissioners
as many adequately qualified persons as it considers necessary
to
perform the functions of commissioners by or in terms of the Act. It
is inevitablethat those persons who have the necessary
knowledge and
experience of labour law to qualify for appointment as commissioners
would have their foundational experiences informed
either from a
trade union or a management perspective. It may be that a
commissioner’s perspective was acquired in circumstances
where
the commissioner was an office-bearer or official of a trade union or
anemployers’ organisation, or in the course of
employment by a
company or an NGO.Even those commissioners drawn from the ranks of
the legal profession may in their professional
capacities have tended
to act primarily if not exclusively for either trade union or
management clients.
[18] In the case of a prior trade
union affiliation, the perspective acquired by the commissioner is no
doubt one that would find
resonance the terms of the preamble to
COSATU's constitution, a vision of a united, democratic South Africa,
free of oppression
and economic exploitation under the leadership of
a united working class. Similarly, commissioners drawn from the ranks
of employers
or employers’ organisation would no doubt share a
perspective that placed greater emphasis on the merits and values of
a
free-market system, with more limited regulation of the labour
market. These differences in outlooks on life and conceptions of
society are not remarkable, nor are they objectionable. On the
contrary,they are inevitable, and should be welcomed. The diversity
of commissioners, drawn as they are mainly from the ranks of persons
engaged in one way or another in the industrial relations
community,
and the diversity and richness of their experience, is no doubt an
integral component of the CCMA’s success as
a statutory dispute
resolution agency. But what remains fundamental and what is required
in each and every arbitration hearing
is that commissioners conduct
proceedings and issue awards without fear or favour, according to the
facts and the law, without
allowing their personal views to intrude
on their decision-making.
[19] What the applicants submit in
essence is that the existence of a commissioner’s prior
association with a trade union
affiliated to COSATU
in itself
creates a reasonable apprehension of bias in any dispute to which a
COSATU affiliate is a party. In my view, there is no merit
in this
submission, since there is no necessary or logical connection between
the commissioner’s association with SACCAWU
and the feared
deviation from a fair and impartial hearing. The absence of any
present or past interestby the commissioner in NUM
aside, there can
be no suggestion that the subject matter of the litigation before the
commissioner arose from his prior association
with SACCAWU, or
SACCAWU’s affiliation to COSATU. In particular, there is no
suggestion that in the course of his association
with SACCAWU, the
commissioner acquired personal information that was relevant to the
dispute that he was required to determine.The
commissioner was
required only to determine whether the individual employees on whose
behalf NUM had acted committed acts of misconduct.
The right to
strike was not at issue, nor were the merits of NUM’s demand
that it be recognised as the collective bargaining
agent for its
members. The subject matter of the arbitration proceedings before the
commissioner was wholly remote fromthe commissioner’s
association with SACCAWU and SACCAWU’s shared affiliation with
NUM to COSATU, or with any program or objective that either
trade
union for the federation might pursue. In the circumstances, there
was no obligation on the commissioner to disclose his
prior
association with SACCAWU. It follows that the recusal ground for
review stands to be dismissed, without prejudice to the
applicants’
right to re-enrol the application for hearing, should they so wish,
on any of the remaining grounds for review.
[20] Finally, I deal with the
applicants’ submission that the failure by the CCMA and the
commissioner to oppose these proceedings
and in particular, to take
issue with what are referred to as ‘damning allegations’
made against the commissioner necessarily
have the consequence that
the court should accept what the applicants aver concerning the
commissioner and his conduct. The CCMA
filed a notice of intention to
abide, reflecting that the commissioner had read the notice of motion
and supporting affidavit,
and that he stands by the reasons for his
decision and abides by the decision of this court. In my view, this
means no more than
that the first and second respondents, the
commissioner and the CCMA respectively, do not dispute the facts
deposed to in the founding
affidavit. Insofar as the deponent to the
founding affidavit has sought to draw inferences from those facts,
whether or not those
inferences are capable of being sustained is a
matterfor the court to determine.
[21] There is no reason why costs
ought not to follow the result.
[22] For these reasons, I make the
following order:
The applicants’ ground for
review based on the contention that the first respondent was biased
on account of his prior association
with the South African
Commercial Catering and Allied Workers Union is dismissed, with
costs.
Andre van Niekerk
Judge of the Labour Court
Appearances.
For the applicants:Adv. N Cassim SC,
with Adv. PBuiski, instructed by SalijeeDu Plessis Van Der MerweInc
For the third respondent: Adv. P
Kennedy SC, with Adv. C Orr, instructed by Cheadle Thompson and
Haysom Inc.
1
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para 89;
Bernert v ABSA Bank
2011 (3) SA 92
(CC) at para 79.
2
[1992]
4 All SA 701
(AD)
3
2011
(1) SA 560
(SCA)
4
At
p 1651D.
5
[1999] ZACC 9
;
1999
(7) BCLR 725
(CC).
6
At
para 42 of the judgment, footnotes omitted.
7
At
para 4, footnotes omitted.
8
At
paragraph 70 of the judgment, footnotes omitted.
9
See
Benert v ABSA Bank
2011 (3) SA 92
(CC).
10
At
para 78.