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[2013] ZALCPE 1
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Department of Correctional Services v General Public Service Sectoral Bargaining Council and Others (P 340/09) [2013] ZALCPE 1 (24 January 2013)
REPUBLIC
OF SOUTH AFRICA
Reportable
the labour court of
South Africa, PORT ELIZABETH
JUDGMENT
Case no: P 340/09
In the matter between:
THE DEPARTMENT OF
CORRECTIONAL SERVICES
..........................................
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
.............................................................................
First
Respondent
ELVIN KAYSTER
...................................................................................
Second
Respondent
D M MALAI
.................................................................................................
Third
Respondent
Heard: 06 November
2012
Delivered: 24 January
2013
Summary: Review
application – deponent to the answering had no locus standi –
applicant may bring default award directly
on review - commissioner’s
finding that the applicant was properly notified not supported by the
evidence on record.
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
This is an application
to review and set aside a default arbitration award of the second
respondent (‘the commissioner’)
issued 01 June 2009
under case number PSG 8196 – 08/09. There was no appearance
for the applicant at the arbitration.
The commissioner found
that the dismissal of the third respondent was substantively and
procedurally unfair and ordered the applicant
to reinstate the
respondent with effect from 1 July 2009 into the same or similar
position that he occupied before the dismissal,
and to restore his
benefits as if the dismissal had not occurred. The commissioner
further ordered the applicant to pay to the
third respondent an
amount of R108 108.00, being the equivalent of 12 months’
salary, as lost income resulting from the
dismissal. The applicant
was ordered to pay this amount into the bank account by no later
than 01 July 2009.
There are number of
issues to be determined by this Court. First is the issue of
locus
standi
of the deponent to the answering affidavit that has been
raised by the applicant. The second issue is whether the applicant
should
not have taken its matter on rescission instead of review
proceedings and if it is competent whether there are any grounds
capable
of reviewing and setting aside the default award.
Locus standi
The applicant contends
that deponent to the answering affidavit has no
locus standi
in these proceedings. Initially, the applicant appeared to be also
challenging POPCRU’s authority to oppose this application
however it seems that it is no longer pursuing that point. The issue
that remains is whether Geoff Kembo (‘Kembo’)
has
authority to depose to the affidavit on behalf of the third
respondent.
The applicant’s
issue is that the POPRCU’s constitution empowers the National
Executive Committee (‘NEC’)
to institute or defend legal
proceedings on behalf of POPCRU. The applicant contends that Kembo
is not a member of the NEC and
only an ordinary member of POPCRU.
Accordingly, POPCRU should have filed a resolution authorising him
to defend the present application.
This issue was first
raised in the applicant’s replying affidavit. The third
respondent was then granted leave by the court
to file further
affidavits to deal with this issue as
per
Lallie J’s
court order of 28 February 2012.
The third respondent
filed a duplicate affidavit deposed to by POPCRU’s General
Secretary Nkosinathi Thibedi (‘Thibedi’).
Thibedi’s
affidavit largely dealt with POPCRU’s right to litigate on
behalf of its members in dispute resolution
procedures and in
particular the third respondent and Kembo’s specific authority
to represent both POPCRU and the third
respondent.
It is further submitted
on behalf of the third respondent that the authority vested to the
NEC in terms of the constitution relates
to litigation brought in
the name of POPCRU itself and not litigation where POPCRU represents
or assists its members.
In my view, the third
respondent misses the point that is raised. There is a difference
between a deponent being authorised to
represent members in labour
relations matters as part of his daily duties and him being
authorised to depose to an affidavit
on behalf of POPCRU or the
third respondent. If power is given to the NEC to institute or
defend litigation in terms of clause
12.2.10, it seems to me if any
other person is appointed there should be a specific provision for
such appointment or a clear
delegation of power. Thibedi’s
affidavit is in my view not sufficient. Thibedi is not empowered to
delegate or appoint
a deponent on behalf of the NEC. There is also
no confirmatory affidavit attached from the third respondent.
I have no issue that
POPCRU defends the matter on behalf of its member although not being
cited as a party to these proceedings
in the notice of motion. It is
very clear that they were involved at the arbitration and referred
the arbitration in their name
on behalf of their member, the third
respondent. It seems to me the applicant is also not pursuing that
point.
The answering affidavit
is not properly deposed to and therefore not properly before court.
Grounds for review
The applicant alleges
that it was never advised by the first respondent (‘the
bargaining council’) about the date,
time and venue of the
arbitration proceedings.
The applicant alleges
that its fax number at Middleburg Correctional Centre is 049 842
1208, the notice of set down reflects the
applicant’s fax
number 043 722 1056. However it appears that the bargaining council
appears to have faxed the notice of
set down to fax number 012 323
4836. This it alleges is not the applicant’s fax number.
The
applicant further submits that when exercising his discretion in
terms of section 138 (5) of the Labour Relations Act,
1
the
commissioner is obliged to take into account various factors in
accordance with Rule 29 of the Rules Regulating the Practice
and
Procedure to Resolving Disputes through Conciliation and Arbitration
in the GPSSBC. Rule 29 requires the arbitrator to be
satisfied that
a party who is absent has been properly notified of the date, time
and venue of the proceedings. The commissioner
failed to exercise
such discretion and proceeded with the matter without taking those
things into account.
The
applicant also submits that the commissioner allowed part of the
evidence to be given under oath whilst the other part was
not and
thus committing a gross irregularity. It makes reference to
transcript of the arbitration hearing.
2
Analysis
It is interesting that
the applicant chooses review proceedings instead of lodging a
rescission application at the bargaining
council in terms of section
144 of the LRA.
The applicant argues
that there is sufficient jurisprudence to support their submission
that the exercise of discretion in terms
of section 138(5) (b) is a
separate ground for review.
I find that nothing
prevents the applicant from directly approaching the court on review
for an alleged defect as long as it can
show that there are grounds
for doing so.
Section 144 is also not
couched in peremptory terms that every time arbitration has been
held in the absence of a party that party
must only refer the matter
on rescission. A party must however be careful in that the test for
review and rescission are not
the same especially if the application
to rescind a default award was not brought before the commissioner
for his or determination.
Be that as it may, this Court is not
prevented from hearing a review application in respect of a default
award even without a
rescission application preceding it.
I disagree with the
applicant that the commissioner needs to set out factors he took
into account when he elected to proceed with
the arbitration in the
applicant’s absence in his award. Rule 29 only requires him to
be satisfied that a party was properly
notified on the date, time
and venue of the hearing. There is nothing amiss with him only
stating he was satisfied and nothing
further. Those factors in my
view need not reflect in the transcript either.
The important question
however is whether the evidence at hand or on record supports a
finding that should lead the commissioner
to a finding that he was
satisfied. In other words did he properly look at all evidence
before him in order to satisfy himself
that there was proper notice?
If he did not or the record shows differently it can be argued that
he committed process related
unreasonableness.
Having perused the
record I found the following:
The fax number provided
by the third respondent in the request for arbitration as the
applicant’s fax number was 043 722
1056;
The notice of set down
for the hearing set down for 31 March 2009 in Quigney was sent to
043 722 1056 as shown by transmission;
On 31 March 2009, the
commissioner gave a ruling postponing the matter to 21 May 2009 due
to a misunderstanding relating to the
venue of the proceedings, the
applicant reported for the hearing in Middleburg whilst the third
respondent reported in East London.
The commissioner records that he
elected to postpone the matter in order for the misunderstanding to
be cleared up. Further he
records that the parties decided on 21 May
2009 as a suitable date for the hearing. He also recorded that the
hearing will take
place in Middleburg, Eastern Cape.
It is not clear if the
commissioner communicated with the parties telephonically or
physically but what is important is that he
communicated with the
parties.
It is also not clear
whether this ruling was faxed to the parties, particularly the
applicant, but what is significant is that
the applicant did not
appear on 21 May 2009 and arbitration proceedings were held in its
absence.
The applicant says that
whilst it agreed to the date of 21 May 2009, it was waiting for a
formal notice of set down from the bargaining
council as
per
the
bargaining council rules. This submission is in my view supported by
the conduct of the bargaining council which was an attempt
to serve
the formal notice of set down.
Be that as it may, the
record shows that there was a notice of set down setting the matter
down to 21 May 2009. It is this notice
that the applicant claims it
did not receive.
On perusal of this
notice and covering letters. It does appear that this notice was
sent to a number of fax numbers. The notice
directed to the
applicant appears to have been sent to 012 323 3476 (according
to the transmission record although the fax
number on the notice
itself is 043 722 1056. The applicant claims that 012 323
3476 is not their fax number.
Whilst I hear the
applicant that its Middleburg Correctional Centre is 049 842
1208, I would find it hard to believe that
043 722 1056 does
not belong to them, simply because they were sent a notice of set
down for the initial set down of 31
March 2009 and they did appear
albeit at the wrong venue. It is interesting to note that the 043
number is an East London number.
Having said all that, I
cannot ignore the fact that the notice of set down for 21 May 2009
was transmitted to a 012 323 3476
number that does not appear
in any other document including the referral form as the number for
the applicant. For that reason
I am of view that had the
commissioner taken that into account he would have exercised his
discretion differently. By failing
to take that factor into account
he committed a gross irregularity which makes his award reviewable.
Insofar as the second
ground for review is concerned, the transcript shows that the
witness stood down and it looks like the applicant
had finished his
and the commissioner was asking about the closing argument, when the
witness said there is a slight thing he
nearly forgot to mention.
The applicant states that the commissioner ought to have
administered an oath again because the witness
had stood down and
applicant’s case was closed. By failing to do so the applicant
argues the commissioner committed a gross
irregularity in that the
evidence given from that point was not given under oath.
My view is that the
applicant is taking an overly technical approach. We cannot make out
from the record whether the witness literally
stood down. It seems
to me nothing much happened after it was said the applicant is
closing its case. Just as the commissioner
was asking for closing
argument the witness jumped in and said that there was something he
forgot to mention. In my view that
could be taken as a continuation
of his testimony and the commissioner’s approach in allowing
the witness to continue when
no other activity had taken place in
between such closing argument or another witness being called, apart
for the applicant’s
representative stating he had no further
questions and witness reportedly standing down, cannot be said to be
grossly irregular.
It may look a little clumsy but I would not take
it to be fundamentally flawed.
Conclusion
Kembo has no
locus
standi
and the third respondent has failed to show that he had
the necessary authority to depose to the affidavit.
The commissioner did not
commit a gross irregularity by allowing the witness to testify.
However the commissioner
misdirected himself by failing to take into account that the fax
number where the notice was sent was
not the same as that provided
in request for arbitration and in other documents and therefore
failed to exercise his discretion
on whether to proceed with the
hearing judiciously.
In the light of my
finding my order is as follows:
The arbitration award of
the second respondent dated 01 June 2009 under case number PSG 8196
– 08/09 is reviewed and set
aside;
The matter is remitted
back to the first respondent for a fresh hearing before another
commissioner other than the second respondent;
There is not order as to
costs.
__________________
Boqwana AJ
Acting Judge of the
Labour Court
APPEARANCES:
FOR THE APPLICANT:
Advocate N Gqamana
Instructed by State
Attorney
FOR THE THIRD RESPONDENT:
Advocate JL BASSON
Instructed by Grosskopf
Attorneys, Pretoria
1
Act
No.66 of 1995
2
Page
27 of the transcribed record of the arbitration proceedings.