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[2013] ZALCJHB 65
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NEHAWU obo Ntuli v Commission for Conciliation Mediation and Arbitration and Others (JR 993/08) [2013] ZALCJHB 65 (18 January 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case No: JR 993/08
In the matter between:
NEHAWU obo NTULI
......................................................................................
Applicant
and
COMMISSIONER FOR
CONCILLIATION
MEDIATION AND
ARBITRATION
.....................................................
First
Respondent
KAREN KLIENOT N.O
..................................................................
Second
Respondent
UNIVERSITY OF THE
WITSWATERSRAND
...................................
Third
Respondent
Heard: 10 August 2012
Delivered: 18 January
2013
Summary: Parties may
be required or allowed to file further affidavits under exceptional
circumstances.
JUDGMENT
LALLIE J
Introduction
[1] This is an
application in terms of section 145 of the Labour Relation Act 66 of
1995 (the LRA) in which the applicant seeks
an order reviewing and
setting aside an arbitration award issued by the second respondent
(the arbitrator) on 8 April 2008. In
the award, the arbitrator upheld
the third respondent’s decision to dismiss the individual
applicant, Mr Ntuli (Ntuli).
Factual Background
[2] Ntuli was employed by
the third respondent as a security guard. On 18 April 2007, two bags
containing abdominal swabs (swabs)
were found by a security guard at
the premises of the third respondent. The swabs were the property of
the Johannesburg Hospital
which is attached to the third respondent.
An investigation was conducted and the viewing of surveillance
cameras revealed that
Ntuli was responsible for the unauthorised
moving of the swabs from the hospital side to the premises of the
third respondent.
Ntuli was subjected to a disciplinary enquiry whose
chairperson found him guilty of being in unauthorised possession of
the swabs
and dismissed him. It is the decision to dismiss Ntuli that
was upheld by the arbitrator which forms the subject of the present
application. This application is opposed by the third respondent.
Grounds for review
[3] The applicant’s
main ground for review is that the arbitrator committed a gross
irregularity in the manner in which she
conducted the arbitration
proceedings which resulted in the applicant being prejudiced.
Substantiating the above submission the
applicant alleged that the
video footage tender as evidence at the arbitration which the
arbitrator relied on, should not have
been allowed as it was not
clear. The award was further attacked on the grounds that on the last
day of the arbitration proceedings
evidence on a compact disk was
tendered as opposed to the first day when evidence on a video
cassette was used. The compact disk
contained evidence which differed
materially from evidence led at the disciplinary enquiry. In the
supplementary affidavit the
applicant raised a ground of review that
this matter be remitted to the first respondent to be arbitrated
de
novo
by a different commissioner owing to the absence of the full
record of the arbitration proceedings whose award is sought to be
reviewed and set aside. It is common cause that the third respondent
retrieved the video cassette which was used at the arbitration
and
submitted a compact disk of the footage which, on its version was
viewed at the arbitration. The applicant submitted that the
evidence
on the compact disc was a manipulated version of the evidence led at
the arbitration. The third respondent refused to
hand over to the
applicant’s attorneys the original video footage and suggested
a joint viewing of the video be held by both
parties at the offices
of the third respondent’s attorneys. The joint viewing did not
materialise until the original footage
went missing.
[5] The applicant
submitted that the original video footage is of vital importance in
the present application as all the third respondent’s
witnesses
who testified at the arbitration relied on its contents. The
applicant further submitted that in the absence of the original
video
footage neither its attorneys who were not present at the arbitration
nor this court will be in a position to determine whether
the
arbitrator applied her mind to all the evidence which served before
her. Another effect of the absence of the original video
recording is
that the applicant’s ability to prosecute this review is
curtailed as a substantial part of its case is capture
in the
unavailable video footage.
[6] This application is
opposed by the third respondent on the grounds that the applicant’s
submissions are incorrect and
unsound in law. The third respondent
submitted that the applicant is in possession of a compact disc in
which footage is located
which the applicant has not placed before
court. It further submitted that the omission is irregular and fatal
to the applicant’s
review application.
[7] It is trite that in a
review application in which the grounds for review are not limited to
the contents of arbitration award
but included the contents of the
arbitration record, the applicant has a duty to provide all the
evidence which served before the
arbitrator whose award forms the
subject of the review application. It is common cause that part of
the evidence tendered at the
arbitration was in the form of a
recording which was not filed with the record of the arbitration
proceedings as envisaged in Rule
7A(6). In the arbitration award, the
arbitrator referred to video footage and video evidence which she
used extensively in reaching
her decision. In the founding affidavit,
the applicant refers to video footage evidence which was allegedly
not clear but the arbitrator
relied on. The applicant further refers
to the use of evidence of both video cassette and compact disc on
different days on which
the arbitration hearing was held.
[8] In its answering
affidavit, the third respondent alleged that it appears from the
record that the surveillance footage as contained
in the compact disc
was the evidence which was led at the arbitration during 3 April 2008
before the second respondent on which
her findings were based. It is
however common cause that the applicant’s attorneys addressed a
number of letters to the attorneys
of the third respondent requesting
to view the video footage which had been tendered as evidence at the
arbitration. When the applicant’s
attorneys demanded the video
from the second respondent they were advised that the third
respondent had furnished the applicant
with a compact disc which,
according to the applicant, did not depict the incidents on the
footage that was viewed at the arbitration
hearing. In June 2012, the
third respondent’s attorneys invited the applicant’s
attorneys to a joint viewing of the
original video footage on a date
to be arranged, however, before the video footage could be viewed the
first respondent’s
attorneys informed the applicant’s
attorneys that the original video footage had gone missing and that
the only video footage
available was the one which they had already
furnished on a compact disc.
[9] The material
difference between the video footage which, according to the third
respondent was tendered as evidence at the arbitration
and other
evidence which served before the arbitrator is that the applicant did
not uplift the video footage from the first respondent
for filling at
this court. The third respondent took it from the first respondent
after the arbitration. Whether the evidence tendered
at the
arbitration was contained in a video cassette or compact discs, it
was received by the applicant for filling at this court
for purposes
of this review application some time after the arbitration had been
held, not from the first respondent as envisaged
in Rule 7 A (3) but
from the third respondent.
[10] The applicant
alleged that the compact disc that it received from the first
respondent in April 2010 is not the same video
cassette or compact
disc which was tendered as evidence at the arbitration. As the
evidence on the video footage is material and
was used by the
arbitrator in reaching her decision, the applicant seeks an order
reviewing and setting aside the arbitration award
because of the
absence of the video footage. A decision to review and set aside an
arbitration award is not taken lightly. It must
have a valid basis.
This court cannot set aside an award as a result of opportunistic
conduct by one of the parties. I accept that
the full record of the
arbitration proceedings has not been filed. This court therefore has
not been favoured with all the evidence
which served before the
arbitrator. The applicant has not filed the compact disc which
according to the third respondent, contains
evidence which served
before the arbitrator, an allegation denied by the applicant. Even if
the footage is in dispute there was
a duty on the applicant to file
the compact disc and give the court an opportunity to deal with it
and make a determination irrespective
of its opinion of its contents.
[11] I have considered
the third respondent’s submission that this matter stands to be
dismissed owing to the applicant’s
failure to file the discs.
Considering the circumstances surrounding the applicant’s
failure to file the disc and the third
respondent’s
contribution to the inability, I am not convinced that dismissing the
matter is a correct and fair decision.
I am of the view that it will
be appropriate to order the parties to file further affidavits.
[12] In the
circumstances, the following order is made:
12.1 The applicant files
a reconstructed record by filing the compact disc it received from
the third respondent in April 2010 within
ten days.
12.2 The applicant files
any supplementary affidavit within ten days of the filing of the
reconstructed record.
12.3 The third respondent
files an answering affidavit to the supplementary affidavit within
ten days of the filing of the supplementary
affidavit.
12.4 The applicant files
a replying supplementary affidavit within five days of the filling of
the supplementary answering affidavit.
12.5 Costs reserved.
_____________
LALLIE J
Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT: M
Manetje of Thaanyane Attorneys
FOR THE RESPONDENT:
Advocate MA Lenox
Instructed by: Mahons
Attorneys