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[2015] ZALCJHB 55
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Ngwathe Local Municipality v South African Local Government and Others (JR 1710/12) [2015] ZALCJHB 55 (26 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
1710/12
DATE: 26 FEBRUARY
2015
Not Reportable
In the matter
between:
NGWATHE LOCAL
MUNICIPALITY
..................................................................................
Applicant
And
SOUTH AFRICAN
LOCAL
GOVERNMENT
..........................................................
First
Respondent
BARGAINING
COUNCIL (SALGBC)
COMMISSIONER
HELEN
HLATSHWAKO
.......................................................
Second
Respondent
SITHEMBISO
SLINGBY
MADONDO
....................................................................
Third
Respondent
Heard: 17
December 2014
Delivered: 26
February 2015
Summary:
Review of arbitration award- Gross irregularity- A
Commissioner may determine a dispute in a manner that the
Commissioner considers
appropriate in order to determine the dispute
fairly and quickly. It remains important in any arbitration
proceedings that the
Commissioner grants each party a proper and fair
opportunity to present their respective cases-
Audi
alteram partem
principle- Fundamental
right to fair trial- Right cannot be dispensed with lightly it can
only be departed from in exceptional
circumstances. Arbitration award
reviewed and set aside.
JUDGMENT
VAN
DER MERWE, AJ
Introduction
[1]
This is a review application wherein the Applicant (“the
employer”) seeks to review an arbitration award dated 31
May
2012 made by the Second Respondent (“the arbitrator”)
acting as an arbitrator of the First Respondent being the
South
African Local Government Bargaining Council (SALGBC).
[2]
The review application was dated 9 July 2012 and the review was
brought in terms of
Section 145
of the
Labour Relations Act, 66 of
1995
, as amended.
[3]
The review application is unopposed.
Background
[4]
The Third Respondent, Mr Madondo (hereinafter “the employee”)
was employed on a fixed term contract for the period
3 November 2008
to 3 November 2011 as an MIG Coordinator in the Applicant’s
Project Management Unit.
[5]
Prior to the expiry of the aforementioned fixed term contract, the
employee signed another contract of employment with the Applicant
on
8 September 2011. This contract was also a fixed term contract with
the period thereof being from 1 September 2011 to 1 September
2016.
In terms of the second fixed term contract the employee was appointed
as a Project Management Unit Manager.
[6]
The second fixed term contract of employment was accompanied by a
Letter of Appointment dated 8 September 2011. The relevant
part of
the letter reads as follows:
‘
Ngwathe
Local Municipality hereby appoints you in renewal and substitute of
your current contract in the position of a Project Management
Unit
Manager/MIG Co-ordinator which is effective from 1 September
2011’.
[1]
[7]
On 15 February 2012, the employee received a memorandum from the
Directive Corporate Service stating that:
‘
On
13 January 2012 I presented a letter to you indicating that your
contract with this municipality would come to an end on 31 January
2012 but you refused to take and acknowledge receipt of that.
Your
contract with this municipality ended on 31 January 2012 so you are
not allowed to occupy any municipal offices, failing which
a case of
trespass would be instituted against you.
Hope
you find the above in order’.
[2]
[8]
The arbitrator, after the arbitration proceedings, came to the
following finding:
‘
21.
The Applicant discharged the onus to prove that a dismissal exists.
22.
The Respondent failed to discharge the onus that the dismissal was
fair. Therefore, the dismissal was unfair’.
[3]
[9]
The arbitrator proceeded to reinstate the employee in the employ of
the Applicant on terms and conditions no less favourable
to him than
those that governed the employment relationship immediately prior to
the dismissal and the arbitrator further made
such reinstatement to
operate with retrospective effect from 31 January 2012.
Review
proceedings
[10]
In the review papers the employer challenged the finding by the
arbitrator and alleged that she committed a gross irregularity
in the
main by alleging that the arbitrator made an award on incomplete
evidence. The employer raised a number of challenges to
the award in
its Founding Affidavit and thereafter supplemented its grounds by
means of the Supplementary Affidavit. In this Court
the employer’s
representative confined the grounds of review under four main
headings –
10.1
Firstly, that the arbitrator had incomplete evidence and that the
arbitrator in effect “shut the door
on the employer” and
prevented it from presenting all the evidence;
10.2
Secondly, that the arbitrator committed a gross irregularity in that
she agreed to excuse the employer’s
representative when he did
not feel well but then proceeded with the evidence of the employer
nonetheless. This also resulted in
there being no re-examination;
10.3
Thirdly, that the arbitrator made strange remarks, for example “you
cannot kill a dead horse”
which indicates that the arbitrator
made up her mind before all the evidence were tendered;
10.4
Fourthly, the issue that the first contract was a contract for three
years and that it was project related
and as such a decision from
Council whereas the second contract was not sanctioned by Council;
10.5
Fifthly, that the acting Municipal Manager had no authority to extend
the contract and to conclude the second
fixed term contract.
[11]
The first ground of review also incorporates the allegation that the
arbitrator committed a gross irregularity by proceeding
with the
employee party’s case at a time when the employer’s
witness was still continuing with his evidence in chief.
The employer
also did not close his case and no cross examination was allowed of
the employer’s witness.
[12]
The first two grounds of review are based on what is reflected in the
record of proceedings, which is self-explanatory. The
context of the
quotation in the record is that this occurred when the employer’s
first witness (identified in the transcript
as Mr Gotlagomang) was
giving evidence in chief and before this witness was cross- or
re-examined. I will not attempt to summarise
the events that unfolded
at the arbitration as only a comprehensive quotation can properly
reflect what occurred. The record reflects
from pages 73 to 79:
‘
MR
GOTLAGOMANG: Firstly, we are saying there was no contract signed by
the Municipality because if you look at page 14 of that bundle
it is,
there are two initials, “SS” and “TJ”, on the
second page of that page which is actually a photocopy
of what we
indicated was the original Mr Senomadi, is “SS” and “TJ”
and the third page is …
MR
PONOANE: Page 15.
ARBITRATOR:
Ntate, please do not use “the third page”, “the
second page”, use the actual paginated pages
so that we know
where you are.
GOTLAGOMANG:
Okay, Page 15.
ARBITRATOR:
Yes?
GOTLAGOMANG:
The contract of employment of Mr Madondo which is in the personal
file, page 14, signed by two people, “SS”
and “TJ”,
page 15, “SS” and (indistinct). The original that is in
the personal file, that is page 16, is
only signed by TJ is the
original document in possession of the Municipality, as to how this
one was signed by TJM and SS is something
that is not in the
(inaudible)…(intervenes)
ARBITRATOR:
I am not, sorry, I am not understanding you. You are saying the file
in the personal file?
GOTLAGOMANG:
The original file.
ARBITRATOR:
Yes?
GOTLAGOMANG:
(Inaudible) the personal file.
ARBITRATOR:
Yes.
GOTLAGOMANG:
Which is in our possession as the Municipality.
ARBITRATOR:
Yes.
GOTLAGOMANG:
We are saying the following, page 14, I will go back (inaudible).
ARBITRATOR:
14, 15 and 16.
GOTLAGOMANG:
14, 15, 16, it is only signed by one person saying “SS
Madondo”, (inaudible) TJM and SS, whereas the original
file,
which is which we are having, is only TJM and it is only having three
pages, that is the original contract that is attached
to the file of
the Municipality, not many pages as appearing page 17, page 18 and
page 19.
ARBITRATOR:
You know what I have a problem with, Ntate? You are telling us about
a contract that is in the personal file, (other
official language)
for evidence?
GOTLAGOMANG:
Madam Commissioner, with respect, my attorney has been trying to do
that (inaudible) …(intervenes)
ARBITRATOR:
No, Ntate (other official language) in the hearing, (other official
language) before the hearing, how (other official
language) in the
hearing you submit a bundle of documents, and you know that. Do you
not know that? You know that. WE cannot be
running around fetching
pages. Do you understand what I am trying to say? It is not on,
Ntate. Like I said,
section 138
requires me to hear this matter
quickly and fairly. Now how is it going to be fair and quick if we
have to run around finding a
page in that office, and finding a page
in that office and this file? I mean, really.
GOTLAGOMANG:
Madam Commissioner … (intervenes)
ARBITRATOR:
The reason we require there should be an index, there should be
pagination, is because the person who will read this
thing when it
goes for review for instance must be able to understand the
proceedings as if he was sitting in these proceedings.
GOTLAGOMANG:
Madam Speaker, Madam Commissioner … (intervenes)
ARBITRATOR:
No, if you fetch a page how do we know what page it is? When once all
these documents are sitting on this table and
I am required to write
a report what page do I say where does this page come from? It
appears at 4 o’clock, this one appeared
at 3 o’clock,
that one appeared at 1 o’clock. Now a person who is reading the
transcript how is he supposed to understand
and follow what you are
saying?
GOTLAGOMANG:
Madam Commissioner, I was trying to answer the question.
ARBITRATOR:
I understand that you are trying to answer the question (intervenes)
GOTLAGOMANG:
(Inaudible)… (intervenes)
ARBITRATOR:
Ntate, but you are not making our lives easy.
GOTLAGOMANG:
You are not allowing me to answer the question because I am trying to
answer the question as to what transpired this
morning. I am saying
my attorney when he arrived and when we arrived we had an agreement
with the applicants that we were going
to postpone this matter
(inaudible) it is indeed so I, am not going to blame my attorney for
not having the bundle ready today
because it was only yesterday after
that he was instructed by the Municipality to come and represent the
Municipality. He only
prepared over the night and he still had to
drive to Parys from Durban (?)
So
the reason why we wanted to also to get a postponement (inaudible)
was going to engage with the applicant so that we can be able
to
settle this matter as speedily as possible.
ARBITRATOR:
Ntate, if you wanted a settlement, have you read the Main Collective
Agreement, (other official language) and the Council,
and how does it
state? It states there clearly how you apply for a postponement
and you do not rock up in the morning and
get an agreement on the
other side to postpone a matter. And you should have known that. It
is clear. The only way you can make
application, you can make in the
hearing, it is an application which could go either way, so your
representative should have prepared.
Granted,
the Municipality might have informed him yesterday of the matter but
whose fault is that? Because they got the notice how
many days back?
GOTLAGOMANG:
Madam Commissioner, with respect, I am sure you being the person who
has been (inaudible) coming to do the arbitration
(inaudible) matter
you are aware of how many matters we are dealing with on a daily
basis.
ARBITRATOR:
Ntate. (intervenes)
GOTLAGOMANG:
Yes, but what I am saying is the following, ma’am,
(inaudible)… (intervenes)
ARBITRATOR:
The incapacity issues … (intervenes)
GOTLAGOMANG:
You know for a fact that … (intervenes)
ARBITRATOR:
(Inaudible) Municipality, they are supposed to deal with them.
GOTLAGOMANG:
Yes.
ARBITRATOR:
Not
nna
. The Municipality is supposed to deal with their
incapacity issues, not
nna
.
Nna
, I am required to
arbitrate. I think we are wasting time here, we are honestly, I think
we are wasting time.
MR
PONAONE: Madam Commissioner, is it not appropriate to take just a
comfort break?
MR
NOLTE: That is the word (inaudible), comfort break, I was looking for
that word.
MR
PONAONE: Comfort break.
ARBITRATOR:
But Ntate, unfortunately we are not going to take a comfort break
because we are late, we started late, we need to proceed
with this
matter and finish it. It is already 14:00.
MR
PONAONE: But the call of Nature is not allowing that, Madam
Commissioner. We are begging (inaudible) a comfort break (inaudible)
a fairly short time.
ARBITRATOR:
I will give you a minute, Ntate, to go to the …
MR
PONOANE: No, it is not (inaudible) just a minute, I just need to take
a comfort break… (intervenes)
ARBITRATOR:
Ntate (intervenes)
MR
PONOANE: For my health reasons, for my health reasons (inaudible)
ARBITRATOR:
What health reasons, Ntate?”
MR
PONOANE: For my health reasons, for my health reasons (inaudible).
ARBITRATOR:
What health reasons Ntate?
MR
PONOANE: My health reasons do not allow, I need to go and take my
tablets (inaudible).
ARBITRATOR:
What tablets (inaudible)
MR
PONOANE: My tablets for my health.
ARBITRATOR:
Does it take you, require more than a minute?
MR
PONOANE: It will not take less than a minute because the car is that
other side, by the time I am still walking to the car…
(intervenes)
ARBITRATOR:
Sorry, Ntate, we are proceeding. Let us proceed. Proceed, Ntate.
MR
PONOANE: Madam Commissioner, I am unable for my health reasons to
proceed.
ARBITRATOR:
Ntate, proceed. You knew that you have a health problem and you did
not bring your medication.
MR
PONOANE: It is there in the car. It is there in the car and it is
outside, me medication.
ARBITRATOR:
Ntate, proceed.
MR
PONOANE: Madam Commissioner, I am unable to proceed for my health
reasons.
ARBITRATOR:
Ntate, because you are the instructor, he says he cannot proceed, are
you going to proceed?
GOTLAGOMANG:
We have appointed an attorney as a Municipality as you correctly
pointed out when we started these proceedings (inaudible)…
(intervenes)
ARBITRATOR:
No, let him proceed… (intervenes)
GOTLAGOMANG:
(Inaudible)… (intervenes)
ARBITRATOR:
Let him proceed, Ntate.
GOTLAGOMANG:
If he is not able to proceed is he going to be forced now to proceed
when he is not ready?
ARBITRATOR:
He must tell us why he is not proceeding. Ntate, I do not have time
for this. I have done this over and over in time
and I know when
people are wasting time. And it seems you are ready to and you are
not prepared like you say, so what I am going
to do is you forfeited
your opportunity, I am going to give the other side an opportunity to
proceed. Proceed, Ntate, with your
case.
NO
FURTHER QUESTIONS
CASE
FOR RESPONDENT
MR
NOLTE: Do I proceed with the cross-examination?
ARBITRATOR:
You can start your case (inaudible)’
[13]
The arbitrator interrupted the employer’s witness because he
referred to a document that was on the employee’s
personnel
file and seemingly did not have the document at the arbitration
included in an indexed and paginated bundle. The witness’
response was to rely on the initial request for a postponement and
the arbitrator thereafter concluded that the witness was “wasting
time”. The arbitrator refused the comfort break suggested by
both representatives and, after asking the employer’s
witness
to proceed with the witness enquiring as to ability of his
representative to proceed, ruled that the employer was “wasting
time” and had lost its right to proceed. The arbitrator
concluded by stating that “you forfeited your opportunity”.
The arbitrator then proceeded with the arbitration as if the employer
party was absent from the proceedings. The arbitrator in
doing so
effectively closed the door on the employer. The arbitrator did not
allow cross-examination or re-examination of the employer’s
witness and in fact when asked by the employee’s representative
whether cross-examination was to commence the arbitrator
insisted
that the employee must start his case.
Evaluation
[14]
It is a fundamental principle that a party should be allowed to
present his/her case in an effective manner. The right to present
one’s case applies to all aspects of proceedings where a
factual finding is to be made. This right is an expression of the
audi alteram partem
principle.
[15]
One of the cardinal rules of natural justice is that an employee has
the right right to be heard. In
Kock
and Another v Department of Education, Culture & Sport of the
Eastern Cape and Others,
[4]
Acting Judge Nkabinde gave a brief analysis of the rules of “natural
justice”:
‘
[15]
The primary procedural safeguards in South African administrative law
are expressed by the twin principles of natural justice:
audi alteram
partem (‘the audi principle’) and nemo iudex in causa
sua: that is, that a public official should hear
the other side, and
that one should not be a judge in his own cause. As a general rule it
may be said that the principles of natural
justice apply whenever an
administrative act is quasi-judicial. An administrative act was
considered to be quasi-judicial if it
affects the rights, liberties
(and perhaps, the privileges) of an individual’.
[16]
A Commissioner may determine a dispute in a manner that the
Commissioner considers appropriate in order to determine the dispute
fairly and quickly. This much is clear from the first part of
section
138(1)
of the LRA which deals with the general provisions of
arbitration proceedings. It, however, remains important in any
arbitration
proceedings that the Commissioner grants each party a
proper and fair opportunity to present their respective cases before
an unbiased
arbitrator.
[17]
The test on review in the Labour Court has recently been captured by
the LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[5]
,
at paragraphs [20] - [21], as follows:
‘
[20]…
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain cases only become clear after both parties
have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (iv)
Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one that another decision-maker
could
reasonably have arrived at based on the evidence?
[21]
Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome (see
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
2006 (2) SA
311
(CC)
). But
again, this is considered on the totality of the evidence not on a
fragmented, piecemeal analysis. As soon as it is done
in a piecemeal
fashion, the evaluation of the decision arrived at by the arbitrator
assumes the form of an appeal. A fragmented
analysis rather than a
broad-based evaluation of the totality of the evidence defeats review
as a process…’.
[18]
In my view the arbitrator’s conduct falls far short of at least
the aforementioned questions posed as (i) and (v).
[19]
By disallowing the employer’s witness to complete his evidence
in chief and also disallowing cross- and re-examination,
the
arbitrator infringed on the employer's right to natural justice and
specifically the employer’s right to have its case
fully and
fairly determined. In the words of the LAC, the process that the
arbitrator employed did not give the employer ‘a
full
opportunity to have their say in respect of the dispute’
.
[6]
[20]
The right of a party to give and adduce evidence, is regarded as a
fundamental right to a fair trial. This right cannot be
dispensed
with lightly. It is true that this right is not absolute but it can
only be departed from in exceptional circumstances.
[21]
The circumstances of this case certainly did not warrant such a
departure and did not justify the finding by the arbitrator
that the
employer party had forfeited its opportunity to state its case. The
arbitrator should have allowed the employer party
to complete their
evidence and should have granted a reasonable comfort brake if this
was what was required to ensure that the
employer received a full
opportunity to have their say. The employer’s case should also
have been tested by means of cross-examination.
The arbitrator did
not in my view follow a proper process and consequently cannot then
produce a reasonable outcome.
[22]
Given that the review succeeds on the first two grounds I do not have
to pronounce in the remaining grounds of review.
[23]
In the result, the following order is made:
23.1
the arbitration award made by the Second Respondent under case number
FSD 031202 is hereby reviewed and set aside;
23.2
the dispute is referred back to the First Respondent to be heard
de
novo
by a different arbitrator; and
23.3
there is no order as to costs.
G
Van der Merwe
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant: Mr Ponoane of Ponoane Attorneys
For
the Third Respondent: Unopposed
[1]
Bundle
of documents – record - p28
[2]
Bundle
of documents – record – p29
[3]
Pleadings
– p 41 – paragraphs 21 and 22
[4]
[2001] 7 BLLR 756 (LC)
[5]
(2014)
35 ILJ 943 (LAC)
[6]
See
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
and Others
supra
at par 20