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[2013] ZALCJHB 144
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LA Crushers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR941/10) [2013] ZALCJHB 144; (2013) 34 ILJ 2593 (LC) (5 March 2013)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF
SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 941/10
In the matter between:
L A CRUSHERS (PTY) LTD
......................................................................................
Applicant
and
THE COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
...............................................................
First
Respondent
COMMISSIONER: C
MOKABANE (N.O.)
...............................................
Second
Respondent
NATIONAL UNION OF
MINEWORKERS
obo PHINEAS MALAZA
.............................................................................
Third
Respondent
Heard: 18 January 2013
Delivered: 5 March
2013
Summary: Review
Application – Refused application for a postponement of the
arbitration proceedings – Whether there
was a proper notice for
hearing of the matter – Court held that the commissioner could
not have been satisfied that notice
had been given – Review
application upheld – Matter remitted back to the CCMA before
another Commissioner.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HULLEY, AJ
Introduction
This is an application
for the review and setting aside of an arbitration award delivered
by the second respondent (to whom I
shall refer hereinafter as “the
commissioner”) in which he
inter alia
ordered the
applicant to reinstate Mr Phineas Malaza on the same or similar
terms and conditions of employment as those
which operated “prior
to the dispute” and to pay the applicant an amount of
R7 290.00 as “arrear wages”.
The applicant challenges
the award essentially on the basis that it had not been given proper
notice of the hearing of the matter
by the first respondent (“the
CCMA”) and that the commissioner ought, accordingly, not to
have heard the arbitration
proceedings and issued an award. There
are other grounds of review, but they all flow from the main ground
of review.
The factual background
to this matter
It appears from the
papers that Mr Malaza had been in the employ of the applicant but
was dismissed. He subsequently referred
an unfair dismissal claim to
the CCMA.
The
matter was scheduled for conciliation – arbitration (a process
contemplated in
s 191(5A)
of the
Labour
Relations Act, 66 of 1995
)
before the CCMA
for 25 March 2010. It was assigned to the commissioner who, it
appears, duly conciliated the matter. The transcribed
record relates
(as it ought to) to what unfolded after conciliation had failed and
arbitration commenced.
The record reveals that
when the matter was called, Mr Mmusi Dlamini of the National Union
of Mineworkers (“the union”)
appeared on behalf of Mr
Malaza; two people, Ms Lidia Magaro and Mr Sybrian Khoza, noted
their presence on behalf of the applicant.
Ms Magaro described
herself as the applicant’s HR supervisor and Mr Khoza as its
HR Administrator.
Ms Magaro explained that
the company’s representative was ‘fully booked’
for the day, was not available to appear
at the hearing and that she
would be representing the company for the purpose of requesting a
postponement of the matter. She
then moved for the postponement of
the matter. In this regard, Ms Magaro explained to the Commissioner
that the applicant had
received the notice of set down on 18 March
2010 and that the legal representative had ‘advised me to
object because we
did not have the fourteen days’ notice
period to object [to] the claims or the seven days to object against
the con-arb’.
She went on to explain
that she was not mandated to proceed with the conciliation or
arbitration of the matter and accordingly,
requested that the matter
be postponed.
Mr Dlamini, for his
part, opposed the application for the postponement on the bases
that:
8.1. The notice of set
down which had been posted to the applicant and received by it on 18
March 2010, constituted sufficient notice
as the company ‘had
sufficient time to respond if they wanted to respond’.
8.2. The notice of set
down had also been faxed to the fax number 086-525-3421 which he
stated was the fax number of the company
‘and the company
confirmed that’. He contended that there was ‘nothing in
the CCMA file that says that the fax
couldn’t reach them and
that is why they are here today.’ (Of course, it was apparent
that the company’s representatives
had responded to the notice
which had been sent by registered post and not that which had been
faxed.)
As an aside, it appeared
during argument before me that both counsel accepted that a fax
number with the prefix “086”
was a so-called
“fax-to-computer” number. This means that the fax would
be received on a computer and viewed in electronic
format.
When confronted with the
assertion that the notice of set down had been faxed to the company,
Ms Magaro stated that she had never
seen the fax number before. Mr
Khoza indicated that whilst he did not recognise the number, he was
aware that the union had previously
sent documents to the fax number
of the company’s Operations Director, Mr Brian Smith. He
stated that this number was Mr
Smith’s personal fax number
which he used at home.
Mr Dlamini persisted
with his opposition to the application for a postponement on the
basis that the notice of set down had been
faxed to a number which
was one that the union had used ‘in all cases that we have in
the company’ and had in fact
been used as recently as the
Friday preceding the conciliation – arbitration hearing. He,
accordingly, contended that the
applicant was relying upon a
‘technicality’ and questioned the
bona fides
of
the applicant.
The commissioner stood
the matter down in order to deliberate. When he returned, he
dismissed the application for a postponement.
The matter then
proceeded. Since neither Ms Magaro nor Mr Khoza was in a position to
represent the applicant, the matter proceeded
on an unopposed basis
and an award was ultimately made in favour of Mr Malaza.
The arbitration award
The commissioner
provided no reasons at the hearing but subsequently, in his award,
explained:
‘
On
perusal of the case file, the commission’s records show that
the notice of set-down was faxed to the [applicant in the
present
case] on the 04 March 2010 and also posted on the 09 March 2019
respectively. Although the [applicant] claims that the
fax number
where notice was effected does not belong to the company, it is still
in compliance with
rule 5
of the CCMA rules as it belongs to the
operations director of the [applicant]. The [applicant’s]
contention that it was not
timeously notified cannot be sustained if
one count[s] the 14 days notice required in terms of rule [?] it is
apparent that the
[applicant] was given sufficient notice by the
commission.’
I imagine the
commissioner had
rule 17
in mind and that his satisfaction that
there had been proper notification in terms of that rule related to
the notice sent by
fax on 4 March 2010. It was in any event common
cause that if there had been proper notification it could only have
been pursuant
to the notice sent by fax.
Grounds of review
The applicant appears to
challenge the award essentially on the basis that the notice of
set-down which had been faxed, had not
been received by it. Other
grounds of review flow from this ground, but I need not consider
them; if this ground of review is
good, the others do not matter; if
it is bad, the others do not arise.
Ms Magaro deposed to the
founding affidavit on behalf of the applicant. In it she states:
‘
4.15.
The 1
st
Respondent… faxed a notice of set down on the 4
th
of March 2010 to a stand by (
sic
)
fax no of the Applicant, which fax is situated in the reception of
the Applicant, but which fax number is not the fax number cited
on
the Applicant’s letterhead and only used by the Applicant in
case of emergency (cited number not in working order), this
the 2
nd
Respondent concluded is in compliance with
Rule 5
of the Rules for
the Conduct of proceedings before the CCMA.
4.16
…
4.17.
The personal fax numbers of a co-employee is not a method of service
or in compliance with the Rules. The co-employee is not
the employer
or a representative of the Applicant authorised in writing.’
Paragraphs 4.15 and 4.16
appear to contradict each other.
Paragraph 4.15 suggests
that the standby number was that “of” the applicant and
that the machine which corresponded
with that fax number was located
in the applicant’s reception, but was not in working order.
Paragraph 4.16, on the
other hand, suggests that the service had been effected on a
co-employee’s personal fax.
Mr Molebaloa, who
appeared for Mr Malaza, made much of this apparent contradiction. He
suggested that whatever deficiencies may
have existed in the
evidence at the arbitration hearing were overcome by the
‘concession’ made by the applicant in
its founding
affidavit.
Mr Geldenhuys, who
appeared on behalf of the applicant, disputed that the “standby
fax number of the applicant” belonged
to the applicant.
There is much to be said
for Mr Molebaloa’s view. In general, a Court is bound to
determine a review application on the
strength of the evidence which
was before the arbitrator. I do not, however, consider that to be an
immutable rule. There may
be circumstances in which an issue which
was hotly contested before the arbitrator and was decided by him or
her in favour of
one of the parties may be conceded by such party in
the review proceedings. There may be other circumstances in which
the Court
may consider evidence not led at the arbitration hearing.
Such circumstances would, I venture, be rare.
However, the change of
heart may take place, before a Court is entitled to consider a
matter on the basis of a concession apparently
made by one party, it
must be satisfied that such concession was indeed made and intended
as a concession.
One way of resolving the
apparent conflict between paragraphs 4.15 and 4.16 is by
understanding the standby number “of the
applicant” not
as a number corresponding with a fax machine belonging to the
applicant, but as a number which was used
by the applicant in cases
where the applicant’s fax machine was unavailable.
At any rate, I am not
satisfied that the applicant intended to make a concession or that
one was indeed made. I, accordingly,
prefer to deal with the matter
on the basis of the ‘facts’ which were before the
commissioner. (In any event, as
will become apparent from my
discussion of the legal position below, I do not think it makes a
difference to the outcome.)
Provisions governing
set down before the CCMA
The principles governing
conciliation – arbitration proceedings are to be found both in
the LRA and the Rules for the Conduct
of Proceedings before the CCMA
(the CCMA Rules).
Section 191 deals with
the referral of unfair dismissal disputes to the CCMA. The relevant
portions thereof read as follows:
‘
191.
Disputes about unfair dismissals and unfair labour practices
(1)
(a) If there is a
dispute
about the fairness of a
dismissal
,
or a
dispute
about an unfair labour practice, the dismissed
employee
or the
employee
alleging the unfair labour
practice may refer the
dispute
in writing to—
(i)
a
council
, if the parties to the
dispute
fall within
the registered
scope
of that
council
; or
(ii)
the Commission, if no
council
has jurisdiction.
(b)
…
(2)
…
(4)
The
council
or the Commission must attempt to resolve the
dispute
through conciliation.
(5)
If a
council
or a commissioner has certified that the
dispute
remains unresolved, or if 30 days have expired since the
council
or the Commission received the referral and the
dispute
remains unresolved—
(a)
the
council
or the Commission must arbitrate the
dispute
at
the request of the
employee
if—
(i)
the
employee
has alleged that the reason for
dismissal
is
related to the
employee’
s conduct or capacity, unless
paragraph (b)(iii) applies;
(ii)
…
(b)
…
(5A)
Despite any other provision in the Act, the
council
or
Commission must commence the arbitration immediately after certifying
that the
dispute
remains unresolved if the
dispute
concerns—
(a)
…
(c)
any other
dispute
contemplated in subsection (5)(a) in respect
of which no party has objected to the matter being dealt with in
terms of this subsection.’
Section
191(5A) is commonly understood to mean that the arbitration must
commence immediately after the conciliation has failed.
1
If
that was the intention of the legislature, it has, sadly, failed to
express itself clearly.
The
use of the word “must” in s 191(5A) appears to be
peremptory and implies that the CCMA is obliged to proceed
immediately to arbitration after certifying that the dispute remains
unresolved.
2
Although
arbitration
must take place immediately after certification, there is no
indication as to when
certification
must
take place. What is clear, however, is that the arbitration can
only
take
place
after
certification.
Certification
must, of course, be in writing.
3
Rule 17 of the CCMA
Rules is the rule by which effect is given to s. 191(5A) of the LRA.
It reads, insofar as is relevant for
present purposes, as follows:
‘
17.
Conduct
of Con-Arb in terms of section 191(5A)
(1)
The Commission must give the parties at least fourteen days’
notice in writing that a matter has been scheduled for Con-Arb
in
terms of section 191(5A) of the Act.
(2)
A party that intends to object to a dispute being dealt with in terms
of section 191(5A), must deliver a written notice to the
Commission
and the other party, at least seven days prior to the scheduled date
in terms of subrule (1).
(3)
…
(4)
If a party fails to appear or be represented at a hearing scheduled
in terms of subrule (1), the commissioner must conduct the
conciliation on the date specified in the notice issued in subrule
(1).
(5)
Subrule (4) applies irrespective of whether a party has lodged a
notice of objection in terms of subrule (2).
(6)
…
(8)
The provisions of the Act and these rules that are applicable to
conciliation and arbitration respectively apply, with the changes
required by the context, to con-arb proceedings.’
Rule 17(1) requires the
CCMA to “give” the parties at least 14 days written
“notice” of the fact that
the matter has been scheduled
for conciliation-arbitration.
There does not appear to
be any provision in either the LRA or the CCMA Rules which
stipulates the method by which the CCMA is
required to give written
notice to parties of the fact that the matter has been scheduled for
conciliation-arbitration in terms
of s 191(5A). (I will revert to
the provisions of Rule 8 later.) Whatever method is selected, the
onus remains upon the person
required to give notice (the CCMA) or
the party seeking to prove that notice was in fact given (the third
respondent in the present
case) to prove it.
The
matter was argued before me on the basis that Rule 5 was applicable.
However, that rule deals with the manner in which “service”
of a document has to be affected by “a party”. On the
face of it, Rule 5 does not deal with the question of notification
by the CCMA and, accordingly, has no application to the present
case.
4
I do not consider that I
am bound by the parties’ incorrect understanding of the legal
position.
5
My
attention was drawn to the judgments in
Northern
Province Local Government Association v Commission for Conciliation,
Mediation and Arbitration and Others
6
and
Mega
Burger v Commissioner Louw, N.O. and Another
.
7
I
consider it appropriate, however, to commence my analysis with
reference to a case which preceded both of these judgments:
Duarte
v Carrim, N.O.
8
In
the
Duarte
case,
Sutherland AJ (as he then was), was called upon to consider a review
of a commissioner’s refusal to rescind an award
which had been
granted in the absence of the employer party. The commissioner
considering the rescission application refused
it on the basis that
he had before him a fax transmission report which demonstrated that
the notice of set-down had been faxed
to the employer. The Learned
Judge said:
‘
[18]
The definition of “serve” in
section 213
of the
Labour
Relations Act, means
sent by registered post, telegram, telex,
telefax or delivery by hand.
[19]
The only resistance which the applicant has put up is to say that he
did not get the telefax. If one was to conclude that the
explanation
was adequate in order to establish a basis for a rescission, it would
completely undermine the efficacy of the section
in the Act.
[20]
It seems to me that when the section in the Act defines service as
sending by telefax, then effect must be given to it.
[21]
The commissioner was of the view that a telefax had been sent. If one
is to go further and conclude that notwithstanding the
sending of the
telefax there was an explicable and non-blameworthy reason for the
non-receipt of the telefax, then it seems to
me that the applicant
should have done much more than it did in this matter. If the
transmission (and to the extent that there
is in documentary form an
indication that the transmission took place) is to be challenged, it
seems to me that it must be challenged
on a proper footing. The
applicant in this matter did no more than simply say “I didn’t
get it” and to suggest
as a probability for not getting it that
he gets many faxes and therefore there was no reason why he would not
have got this one.
[22]
That seems to me to be insufficient.’
9
The judgment in that
case was followed by that in
Mega Burger
in which a
commissioner had granted an award in the absence of the employer
party. The facts demonstrated that the employer party
did not appear
at the arbitration hearing and upon perusing the CCMA file the
commissioner established that the case management
officer had
initially made an unsuccessful attempt to fax the notice of set-down
to the employer, and had followed this up by
sending the notice of
set-down to the employer by registered post. On the day of the
arbitration hearing, the commissioner requested
the case management
officer to contact the employer. He was informed (by the case
management officer) that the employer claimed
that it had not
received the notice of set-down and was not aware of the arbitration
hearing. The commissioner decided to proceed
with the hearing. The
employer subsequently applied for rescission of the award and the
rescission application was dismissed
on the basis that the employer
had failed to controvert the “rebuttable presumption”
that it had received the notice
of set-down.
On review to the Labour
Court, Landman J held that:
‘
[5]
… The CCMA is charged with the arbitration of disputes which
have been referred to it and which have not been resolved.
Clearly
the CCMA is obliged to comply with the principles of
audi
alteram partem
and
therefore to advise the parties timeously of the date and time of the
commencement of arbitration proceedings. In practice this
means that
the notice of set down must be served in some fashion on the parties…
The absence of a statutory rule permitting
or requiring service by
registered post has, however, the effect that s 7 of the
Interpretation of Statutes Act 33 of 1957 has
no application. That
section, if it were applicable, would have created a rebuttable
presumption that the registered letter contained
in the notice of set
down would have been deemed to have been effected at the time at
which the letter would have been delivered
in the ordinary course of
post.
[6]
The commissioner was obliged to satisfy himself on 7 August that the
notice of set down had been served on Mega Burger. The
fact that it
was sent by registered post goes some way to showing that there was,
at least, an attempt at service. When informed
that Mega Burger said
that it had no notice of the set down, it was on the facts before
him, reasonable for him to suppose that
this was true. This is
particularly so in the light of the fact that Mega Burger had
attended the conciliation proceedings. There
was no evidence to the
contrary before him that Mega Burger did not receive the notice of
set down. The commissioner ought to have
postponed the arbitration
proceedings
mero
motu
.
The commissioner did not do this. His action was, in my view,
unreasonable and unjustifiable and constitutes a gross
irregularity.’
10
It
bears mentioning that at that stage the present CCMA rules had not
yet been promulgated and although rules had been published
pursuant
to Government Notice No. R. 1737 (
GG
No. 17516 of 1 November 1996, as amended
)
the rules did not deal with the procedure by which notification that
a matter had been set down had to be given to a party;
they dealt
only with the question of service by a party of any document
required to be served.
To
summarise: in the absence of any rules governing the issue,
Sutherland AJ dealt with the matter on the strength of the
definition
of “service” in the LRA and Landman J dealt
with it on the basis of the principles of
audi
alteram partem.
In
Halcyon
Hotels (Pty) Ltd t/a Baraza v CCMA and Others
,
11
the
Court had to consider a rescission application in circumstances
where the CCMA had caused the notice of set-down to be faxed
to the
employer party at the fax machine of a neighbouring business because
the employer did not have a fax machine of its own.
Faber AJ held:
‘
[14]
I am of the view that the second respondent has misdirected himself
in not properly considering the facts placed before him
and in
particular the fact that the applicant disputed proper notification.
Section 213 of the Act defines service as “to
send by
registered post, telegram, telex, telefax or delivered by hand”.
However, a telefax transmission slip or registered
mail slip is only
prima
facie
proof
that a document has come to the knowledge of the party on whom it has
been served. In any event, it should be noted that there
is a clear
distinction between service and notification. Service is defined in
terms of rules 1 and 3 of the rules regulating CCMA
proceedings to be
limited to parties to the dispute serving documents on each other.
This clearly excludes notification by the
CCMA. That much is also
clear from rule 23. In terms of the latter and based on general
principle, the second respondent should
have satisfied himself that
the parties had been properly notified. If he was of the view that
applicant had not been notified
properly, he would not have granted
the arbitration award in applicant’s absence.’
12
In the subsequent case
of
Northern Province Local Government Association
, Sutherland
AJ (as he then was) was again confronted with an application to
review a decision by a commissioner refusing rescission
in
circumstances where the employer party alleged that it had not
received a notice of set-down.
The Learned Judge,
without making reference to Faber AJ’s judgment, arrived at a
similar conclusion:
‘
[44]
It is therefore apparent that a 'notice of an arbitration hearing' is
something which the commission must 'give' to the parties,
and is not
a process which is prescribed in the rules to be 'served on the
parties'. Rule 3 defines service of documents in substantially
the
same way as
s 213
of the
Labour Relations Act defines
'serve'. In my
view, the rules must be interpreted to mean that it was contemplated
by the drafters that the officials of the first
respondent would not
themselves be burdened with having to 'serve' the notice of an
arbitration hearing to the relevant parties
and accordingly the
presumptions inherent in the statutory definition of 'serve' can have
no bearing on the weight which the second
respondent ought to have
given to the evidence of the transmission slip. These considerations
contrast starkly with the circumstances
in
Duarte
v Carrim
which
was, as is apparent from what is set out above, decided on a
different footing and which imported the presumptive force of
the
term 'serve' as set out in
s 213
of the LRA.’
13
After considering and
agreeing with certain criticisms levelled at the
Duarte
judgment, Sutherland AJ continued:
‘
[46]
It seems to me that a commissioner in considering whether or not a
notification of an arbitration hearing has indeed been received
by a
respondent, it is necessary to consider all the facts bearing on that
question. Axiomatically, in deciding whether or not
a fax
transmission was received, proof that the fax was indeed sent creates
a probability in favour of receipt, but does not logically
constitute
conclusive evidence of such receipt. A party to proceedings who
claims that it did not receive a telefaxed notification,
must be put
in a position where it can consider the grounds upon which it is
contended that a notice was furnished to it, and thereupon
give an
explanation as to whether or not it was received, could have been
received, and any other germane circumstance, which has
a bearing on
the explanation tendered that the party was ignorant that the matter
had been set down. Naturally, commissioners must
be on their guard
against abuse of the process by parties who, having been properly
notified but having neglected to participate
in the proceedings,
subsequently wail once an adverse arbitration award is served on
them. Nevertheless, the prudent need to guard
against those
circumstances should not disturb a fair-minded enquiry into whether
or not as a fact the notice did not come to the
attention of the
party.’
I
agree, with respect, with most of the aforesaid views expressed by
the court
Halycon
and
Northern
Province.
In
particular, I agree that the correct enquiry is whether notice had
been given by the CCMA, rather than whether there had been
“service”
(in whatever manner contemplated by either the LRA or the CCMA
rules).
14
That having been said, I
should make certain additional observations.
Now the proper approach,
to my mind, is to consider the intention of the rule-maker in
promulgating
Rule 17(1)
as expressed in the ordinary language of the
rule.
What
is required is that the CCMA “give… notice” of a
certain fact,
viz
.
that the matter has been scheduled for conciliation-arbitration.
The
primary meaning of the word “give” is used in a
proprietary sense and “appears to have been the placing
of a
material object in the hands of another person”
15
and
the word “notice” is defined as “1. The act of
perceiving; observation; attention… 4. Information
about a
future event; warning; announcement…”
16
When the two words are
combined to form the phrase “give notice”, they mean to
place information about a future event
in the hands of another.
In
Vengatsamy
v Scheepers,
17
Broome
J held:
‘
Now
“notice” is defined in the
Shorter
Oxford Dictionary
as “formal intimation of or warning of something”…
It seems to me to be elementary that, where one person is
required to
give a written notice to another, the former is required to place the
written notice
in
the possession of
the latter.’ (Emphasis added.)
Where the statute or
rule under consideration does not stipulate the manner in which
notice is to be given, then the party contending
that notice had
been given must, using whatever evidence is available to him, her or
it, prove that it was indeed given in the
sense that the notice was
placed in the possession of the other.
Similarly, where the
statute or rule under consideration does stipulate a method by which
notice is to be given, but a different
method is used, the party
contending that notice was indeed given must, once again, using
whatever evidence is available, prove
that notice was indeed given
in the sense set out above.
In
Hastie
and Jenkerson (a firm) v McMahon,
18
the
English Court of Appeal had to consider, among others, whether
service by fax was acceptable under the rules of court. The
rules
did not authorise service to be so affected and the parties’
representatives had not agreed on service using such
method. It was
common cause that the document which had been sent by fax had in
fact been received in a legible form by the opposing
attorney; the
issue was whether there had to be compliance with the rules of
court.
Three of the justices
expressed opinions; two are instructive in the present case.
Woolf LJ expressed the
following views:
‘
The
problem from the point of view of parties using fax as a means of
service other than by agreement is that it may be difficult
for a
party to prove that a legible copy of the document has in fact been
printed at the recipient’s premises. As to this,
he may be
assisted by the activity report to which I have made reference, but
clearly unless and until there is a special provision
contained in
the Rules of the Supreme Court expressly authorising service by fax a
party to legal proceedings will be taking a
considerable risk in
relying on service by fax unless there is consent to this form of
service.’
19
And later:
‘
Here
giving the words of RSC Ord 65, r 5 their natural meaning they do not
produce what I would regard as an absurd result. They
do not preclude
the result that because service by fax is not covered by the rules
service has not taken place where it can proved
that the other party
has in fact received a legible copy of the document to be served by
the use of fax.’
20
The other opinion was
expressed by Glidewell LJ. He was more emphatic:
‘
I
emphasise that, if a document is served by a means for which neither
the rule nor statute provides, there will only be good service
if it
be proved that the document,
in
a complete and legible state
,
has indeed been received by the intended recipient. I realise that
transmission of documents by fax is a relatively recent development.
If, in a particular case, what emerges from the recipient’s fax
machine is, or may, not be complete or is not wholly legible,
a court
will be justified in concluding that the document has not been
properly served.’
21
(Emphasis
added.)
I endorse those opinions
wholly.
Where, on the other
hand, the statute or rule under consideration does stipulate a
manner in which notice is to be given and notice
has in fact been
given using such method, then in the absence of any contrary
intention expressed in the statute or rule under
consideration,
proof that there had been compliance with the method of notification
contemplated in the statute or rule, would
constitute
prima facie
proof that notice had been given. (I emphasise, however, that the
issue is always one of interpretation of the statute or rule
in
question and it may appear from a proper interpretation of the
statute that proof of compliance with the prescribed method
of
notification constitutes conclusive proof of the fact that notice
was given.)
Rule 8
appears to be the
only rule which makes any reference to notice being given by the
CCMA. It provides that:
‘
Any
document or notice sent by registered post by a party
or
the Commission
is presumed, until the contrary is proved, to have been received by
the person to whom it was sent seven days after it was posted.’
(Emphasis added.)
Rule
8
does not, however, prescribe a method for the giving of notices;
it only creates a presumption of receipt where notice
is
“
sent”
by registered post.
Where notice has been
sent by registered post, a party may be entitled to rely upon the
presumption created by
Rule 8
and it will then be for the party
disputing receipt to prove otherwise.
In
Maseko
v Minister of Law and Order
22
(W)
Flemming J (as he then was), noted that where in a statutory
provision one party was required to give notice to another
such
wording caused ‘the spotlight to fall not on the result
achieved in the defendant's mind but upon the activity required
of
the claimant’ and, therefore, if the first person has ‘done
everything which would bring the matter to the defendant's
knowledge
if only the defendant would himself without delay take possession of
the arriving communication and read it’
then the first person
has in fact given notice as contemplated in the statutory provision.
In short, the emphasis is upon the
conduct of the first party who is
required to give notice rather than on the second party, and whether
such person has in fact
acquired knowledge of the notice given is
irrelevant provided he or she has been placed in a position where he
or she could acquire
knowledge if only he had considered the notice
which had been given to him.
Thus,
if notice is given by registered post, proof that the intended
recipient received the registered slip, but failed to collect
the
letter, will constitute the giving of notice.
23
The present case is
concerned with the giving of notice by fax. At the risk of
repetition, the commissioner had to be satisfied
that the required
notice had been given to the applicant; if he was not so satisfied
he could not proceed with the matter.
The commissioner had
proof before him that the notice of set-down had been sent by fax to
a computer. He had no evidence that
the computer belonged to the
applicant and he did not find that it belonged to the applicant; he
found that it belonged to the
company’s Operations Director.
This
finding was apparently based upon what Mr Khoza had stated. It will
be recalled that Mr Khoza never stated that the fax number
was
that
of Mr Smith; he stated that it
may
belong
to the fax machine of Mr Smith. Mr Khoza also stated that the fax
machine was the personal machine of Mr Smith and did
not belong to
the company. The commissioner’s ruling does not reflect this
uncertainty. Nevertheless, the review does not
turn on this issue
since it appears that the fax number was indeed the personal number
of the Operations Director.
In
these circumstances, I fail to understand how the commissioner could
ever be satisfied that notice had been given. To be fair,
I think
the answer stems from the fact that the commissioner operated under
the assumption that rule 5 was applicable. But, even
if rule 5 was
applicable, the commissioner could not have been so satisfied
because proof of “service” on the company’s
Operations Director does not, absent questions of condonation or
substantial compliance, constitute proof of service on the company.
24
It
is perhaps opportune at this stage to point out that even if it had
been established that the computer belonged to the company
(and not
merely a director), the commissioner could not, having regard to the
opinions expressed in
Hastie
and Jenkins
,
supra
,
and the understanding that the fax was sent to a computer (and
would, until retrieved, be located somewhere in cyberspace),
have
been satisfied that notice had been “given” as
contemplated in Rule 17.
It
was common cause that in the absence of notice having been given,
the award could not stand. I am in agreement.
25
In the circumstances, I
am satisfied that the review should succeed.
In general, I am of the
view that costs ought to follow the result. Had the founding
affidavit not created the confusion referred
to above and had the
applicant not continued to challenge the award with reference to
rule 5 the third respondent may well have
realised the folly of
further opposition. Accordingly, I am not inclined to grant the
applicant its costs.
In all the
circumstances, I make an order in the following terms:
The award of the second
respondent delivered on 8 April 2010 and amended on 16 April 2010,
is hereby reviewed and set aside.
The matter is remitted
to the first respondent for determination before an arbitrator
other than the second respondent.
_______________
Hulley, AJ
Acting Judge of the
Labour Court
Applicants
:
For the Applicant: MR CJ
Geldenhuys of Geldenhuys CJ at Law Inc.
For Third Respondent: Mr
M.S. Molebaloa of M.S. Molebaloa Attorneys Inc.
1
Grogan,J.
Workplace Law
(2009),
at 172; A. Rycroft,
Rethinking the
Con-Arb Procedure
(2003) 24
ILJ
699 at 702.
2
Pioneer
Foods (Pty) Ltd t/a Sasko Milling and Baking (Duens Bakery) v
Commission for Conciliation, Mediation and Arbitration and
Others
(2011) 32 ILJ 1988 (LC) at para 25.
3
Compare
Soobramoney and Others
v.
Moothoo and Others
1957
(3) SA. 707
(D);
Hulett and Sons Ltd.
v
Resident Magistrate, Lower Tugela
1912 AD 760
at 766.
4
Halcyon
Hotel (Pty) Ltd t/a Baraza v CCMA and Others
[2001] 8 BLLR 911
(LC), at 914.
5
Paddock
Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A), at 23C –
24G.
6
(2001)
22 ILJ 1173 (LC)
7
(2000)
21
ILJ
1375
(LC).
8
[1998]
9 BLLR 935
(LC).
9
Ibid
at para’s 18 – 22.
10
Mega
Burger
, supra, at 5-6.
11
Halcyon
Hotels (supra
) at para 14.
12
Ibid
at 914.
13
Ibid,
at para 44.
14
See
Vidavsky v. Body Corporate of Sunhill
Villas
2005 (5) SA 200
(SCA), at
204I–205A.
15
Stroud’s
Judicial Dictionary of Words and Phrases
,
7
th
ed.
16
Collins
English Dictionary: Complete and Unabridged
.
17
1946
NPD 84
at 87.
18
[1991]
1 All ER 255
(CA).
19
Ibid
at 260C–E.
20
Ibid
at 262F-G.
21
Ibid
at 264J-265A.
22
1988
(1) SA 542
(WLD) at 544I-J.
23
Minister
of Law and Order v Terrence
1991 (4)
SA 833
(E);
Matross v Minister of
Police
1978 (4) SA 79
(E) at 81H-82C.
24
Compare
Federated Insurance Co. Ltd v Malawana
1986 (1) SA 751
(A).
25
Vidavsky
v. Body Corporate of Sunhill Villas
,
supra
, at
207B-F