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[2014] ZALCPE 22
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Motsoasele v Ward NO and Others (P159/2014) [2014] ZALCPE 22 (12 August 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P159/2014
In
the matter between:
THAMSANQA
MOTSOASELE Applicant
and
CARMEN
WARD
N.O First
Respondent
JANA
BURGER
N.O Second
Respondent
FREE
STATE GAMBLING AND LIQUOR
AUTHORITY Third
Respondent
Heard:
30 July 2014
Delivered:
12 August 2014
Summary:
The Labour Court may intervene in an uncompleted arbitration when a
commissioner refuses to entertain
an employee’s application to
re-open his/her case closed by a commissioner in his/her absence.
JUDGMENT
LALLIE,
J
[1]
On 4 June 2014, this Court issued an interim order restraining the
first and second respondents from issuing any award on the
merits of
the arbitration of the unfair dismissal dispute which was finalised
on 21 May 2014 pending the finalisation of the present
application. A
mandamus
ordering the first respondent to enrol the
applicant’s application to reopen his case so that it would be
heard in accordance
with the Rules of the Conduct of Proceedings
before the CCMA (“the CCMA Rules”) was issued. A further
mandamus
was issued ordering the second respondent to
entertain and adjudicate the applicant’s application to re-open
his case in
accordance with the CCMA Rules.
[2]
On the return date, the third respondent opposed the application. The
facts of this matter are mainly common cause. The applicant
was an
employee of the third respondent. He was dismissed on 7 January 2014
pursuant to being found guilty of serious acts of misconduct.
He
challenged the fairness of his dismissal at the CCMA. When the
dispute could not be resolved at conciliation, it was scheduled
for
arbitration on 10 March 2014 by the second respondent (‘the
commissioner’). The applicant was represented by Mr
Jwayi
(Jwayi), an official of his trade union NEHAWU. The third respondent
led evidence first and after its first witness had testified,
the
arbitration was postponed to 20 an 21 May 2014. On 20 May 2014, only
the third respondent attended the arbitration. It led
its remaining
witness and closed its case. The arbitration was adjourned to the
following day.
[3]
When the arbitration reconvened on 21 May 2014, the applicant
attended with Mr Jwayi. Upon enquiring from the third respondent
what
the status of their arbitration was, they were informed that the
third respondent had led its last witness, closed its case
and the
commissioner had closed the applicant’s case. The applicant
requested the commissioner off the record to afford him
an
opportunity to present evidence in support of his case. The
commissioner declined the applicant’s request off the record
and on record requested the applicant and the third respondent to
submit closing arguments on 28 May 2014. Instead of complying
with
the commissioner’s request, the applicant’s attorney
contacted the first respondent in an attempt to ascertain
the
procedure for securing a date for the urgent hearing of the
applicant’s application to reopen his case. The first
respondent’s
response was that a date would not be allocated
for the hearing of the application. The applicant’s attorney
was advised
that the applicant could apply for rescission in the
event of the award being granted against the applicant. The applicant
persisted
with his request to have his arbitration set down for the
hearing of the application to re-open his case failing which he would
move the present application. When he got no response, he launched
this.
[4]
On the return date, the respondent is obliged to show that the order
should not have been granted at the outset on the grounds
that no
proper case was made out for the order.
[5]
In
Jiba
v Minister of Justice and Constitutional Development
,
[1]
the Court expressed the undesirability of this Court’s
interference in uncompleted arbitrations was expressed thus:
‘
I
wish to deal with the application in so far as it relates to the
chairperson’s ruling on a more preliminary basis.
Exceptional circumstances aside, it is undesirable for this court to
entertain applications to review and set aside rulings made
in
uncompleted proceedings. In
The
Trustees for the Time Being of the National Bioinformatics Network
Trust v Jacobson and other
(unreported,
C249/09,14 April 2009) [reported at
[2009] 8 BLLR 833
(LC) –
Ed], I said the following in relation to the review of interlocutory
rulings made by commissioners:
“
There are at least
two reasons why the limited basis for intervention in criminal and
civil proceedings ought to extend to uncompleted
arbitration
proceedings conducted under the auspices of the CCMA, and why this
court ought to be slow to intervene in those proceedings.
The first
is a policy related reason – for this court to routinely in
uncompleted arbitration proceedings would undermine
the informal
nature of the system of dispute resolution established by act. The
second (related) reason is that to permit applications
for review on
a piecemeal basis would frustrate the expeditious resolution of
labour disputes. In other words, in general terms,
justice would be
advanced
rather than frustrated by permitting CCMA
arbitration proceedings to run their course without intervention by
this court.”’
[6]
In
Booysen
v Minister of Safety and Security
,
[2]
it was held that this Court has jurisdiction to interdict any unfair
conduct. The Court cautioned that the intervention should
be
exercised in exceptional cases. The question whether failure to
intervene would lead to grave injustice or whether justice might
be
attained by other means were cited as some of the factors to be
considered.
[7]
In this application, the applicant seeks to assert his right to have
the application for the re-opening of his case heard by
the
commissioner. The applicant argued that he has the right to be heard
at the CCMA. The right stems from the rules of natural
justice. He
denied having waived his right to be heard. The third respondent
argued that this application should be dismissed as
the applicant had
failed to prove the existence of a right. It was further argued that
the applicant failed to attend the arbitration
on 20 May 2014 out of
his own negligence as he was present when the commissioner informed
the parties before her that the arbitration
had been postponed to 20
and 21 May 2014. The third respondent sought to rely on section 138
of the Labour Relations Act 66 of
1995 (‘the LRA’), which
gives arbitrators the latitude to conduct arbitrations with the least
of legal formalities.
[8]
It is common cause that the applicant had the right to be heard when
he appeared at the arbitration on 21 May 2014. Section
138(1) of the
LRA provide as follows:
‘
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities’.
[9]
While section 138(1) bestowes commissioners with the power to conduct
arbitrations in a manner they consider appropriate, it
places a duty
on them to determine disputes fairly and requires them to deal with
the merits of the dispute. It is common cause
that not only was
commissioner’s response to the applicant’s request to
have his case re-opened extra curial, she did
not even ask for
reasons for his request. The request was of vital importance as it
involved his right to be heard. A decision
denying a party of the
right to be heard should not be taken lightly. By refusing to
entertain the applicant’s application
to have his case
re-opened especially without affording him an opportunity to persuade
her to make a ruling his favour, the commissioner
violated the
applicant’s right to be heard.
[10]
It was argued on behalf of the third respondent that the applicant
was not without alternative remedy as he could have presented
his
closing arguments as directed by the second respondent, waited for
the arbitration award to be issued and followed the first
respondent’s advice of applying for rescission or review. There
is merit in the applicant’s submission that launching
a
rescission application was untenable. Section 144 (a) of the LRA
provides for the rescission of a ruling erroneously made in
the
absence of any party affected by the ruling. Had the applicant filed
closing arguments, he would not have been eligible to
rely on section
144 (a) as the ruling would not have been made in his absence. He was
present and participated on the first day
of the arbitration hearing.
He would have been present and participated on the last day had he
filed closing arguments.
[11]
A ruling may be rescinded in terms of section 144 (b) if it has an
ambiguity or an obvious error or omission but only to the
extent of
the ambiguity, obvious error or omission. The third respondent’s
argument that the applicant failed to prove the
existence of a right
bears testimony to the absence of an ambiguity, obvious error or
omission. In terms of section 144 (c) a ruling
may be rescinded if it
is granted as a result of a mistake common to the parties to the
proceedings. The applicant was denied the
opportunity to have his
case re-opened as a result of his absence at the arbitration on 20
May 2014. The third respondent submitted
that the absence resulted
from the applicant’s negligence as he was present when the
arbitration was postponed. The applicant
submitted that his absence
from the arbitration was caused by Jwayi’s mistake. There is
therefore no mistake common to the
parties. Section 144, therefore,
did not provide the applicant with alternative remedy.
[12]
The applicant has a well-grounded apprehension of harm as he faces
the grave injustice of being denied the right to present
his case.
The balance of convenience favours the applicant as he stands to
suffer more prejudice than the third respondent in the
event of this
application being denied.
[13]
The third respondent argued that the applicant should have awaited
the finalisation of the arbitration and pursued review proceedings
as
alternative remedy. The applicant seeks to have his application to
re-open his case and be heard before a determination of the
fairness
of his dismissal is made. The test for review is whether the
commissioner reached a decision that a reasonable decision
maker
could not reach on the evidence before the commissioner.
[3]
A review is decided on the totality of the evidence and excludes a
piece-meal approach. In the event of the applicant waiting for
the
award to be issued, his evidence will not form part of the evidence
before the second respondent in the event of the arbitration
being
finalised without his case being re-opened. He will, therefore, be on
the back foot when approaching this Court on review.
He cannot ask
this Court in his review application for the order that he is
presently seeking. A review application is, therefore,
no alternative
to the present application. Failure to intervene at this stage will,
therefore, lead to a grave injustice.
[14]
In
Booysen
(
supra
), the Court expressed the view that
judicial intervention may prove to be time saving and less costly if
the process is not proceeded
with. It may also prevent costly
litigation. The matter at hand cries out for such intervention.
[15]
The applicant acted with the necessary urgency in approaching this
Court after the first respondent had refused to schedule
his
arbitration for the hearing of the application to re-open his case.
In the circumstances, I am satisfied that the applicant
has made out
a case for the relief that he is seeking.
[16]
The applicant sought a costs order against the third respondent on
the basis that it was not necessary for it to oppose this
application. The third respondent sought costs on the basis that it
uses public funds in this litigation and was forced to instruct
an
attorney and counsel as its employee who was an attorney and
responsible for this matter has since left its employ. It was not
necessary for the third respondent to defend this application when
regard is had to the reality that the applicant seeks to affirm
his
right to be heard which he was denied by means of an extra curial
ruling made without affording the applicant an opportunity
to be
heard. A costs order against the third respondent is, therefore,
justified.
[17]
In the premises, the
rule nisi
issued on 4 June 2014 is confirmed with costs.
______________
Lallie
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate
Louw
Instructed
by:
Honey Attorneys
For
the Third Respondent: Advocate Molotsi
Instructed
by:
L Molatseli Attorneys
[1]
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC) at para 11.
[2]
[2011] 1 BLLR 83
(LAC) at para 54.
[3]
See
Sidumo
and Others v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) at para 110.