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[2015] ZALCJHB 106
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Rabothatha v Metal And Engineering Industries Bargaining Council and Others (JR 3019/2012) [2015] ZALCJHB 106 (25 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 3019/2012
DATE: 25 MARCH 2015
Not reportable
In
the matter between:
NUMSA
obo SAMUEL
RABOTHATHA
.........................................................................
APPLICANT
And
THE
METAL AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
...............................................................................
FIRST
RESPONDENT
COMMISSIONER
TSHEPO MASHIGO N.O
..........................................
SECOND
RESPONDENT
NORCO
CABLES (PTY)
LTD
........................................................................
THIRD
RESPONDENT
Heard:19
December 2014
Delivered:
25 March 2015
Summary:
Review Application -
deponent having no personal knowledge - no factual basis set out in
founding affidavit - no reference to record of proceedings
- attorney
and own client costs.
JUDGMENT
VENTER,
AJ
Introduction
[1]
This matter concerns an
application by the applicant to review and set aside an arbitration
award of the second respondent in his
capacity as commissioner of the
first respondent. The Application is brought in terms of section 145
of the Labour Relations Act
[1]
("the LRA").
Background facts
[2]
The third respondent is
in the business of manufacturing cables.
[3]
Samuel Rabothatha
("Rabothatha") was employed by the third respondent in the
capacity of quality controller.
[4]
Rabothatha was found
guilty of two offences namely signing a production sheet giving the
operator the go ahead for the run who made
118.5kg of scrap and
failing to carry out instructions of management in that he organised
a meeting without management's permission.
Rabothatha was summarily
dismissed on 10 June 2011.
[5]
Rabothatha referred an
alleged unfair dismissal dispute ("the Dispute") to the
first respondent which was arbitrated before
the second respondent on
6 March, 17 July and 3 October 2012.
[6]
Rabothatha placed both
the procedural and substantive fairness of the dismissal in dispute.
[7]
After analysing the
evidence, the second respondent found that Rabothatha's version that
he had obtained permission to hold the
meeting was more probable than
that of the third respondent's witnesses and found him not guilty of
the charge related thereto.
[8]
On the issue of
Rabothatha signing the production sheet giving the operator the go
ahead to run the machine which manufactured 118.5kg
scrap, the second
respondent found it to be common cause that scrap was manufactured
and accepted, the third respondent's version
that in light of the
discrepancies between Rabothatha's and the operator's time entries on
the production sheet Rabothatha did
not check the machine and had he
checked the machine he would have picked up that it was making scrap.
The second respondent found
Rabothatha guilty of the second charge
and held that as the third respondent had suffered a financial loss
in a period of economic
down turn dismissal was an appropriate
sanction.
Grounds of review
[9]
The applicant's grounds
of review which are set out in the founding affidavit deposed to by
an official of the applicant, Prudence
Gqoba ("Gqoba") are
scant and lacking in any particularity.
[10]
The grounds for review
are simply that the second respondent committed reviewable
irregularities in failing to appreciate the fact
that the applicant
was dismissed based on only one witness's testimony at the
disciplinary hearing, in finding that the conduct
amounted to a
dismissible offence and in failing to apply his mind to the evidence
of one of the third respondent's witnesses,
Mr Johannes Petrus
Strauss ("Strauss").
[2]
[11]
In conclusion, the
applicant submits that a reasonable decision maker in the position of
the second respondent faced with the same
evidence would have found
on a balance of probabilities that the applicant's dismissal was
substantively unfair.
[3]
[12]
In its answering
affidavit, the third respondent has raised two points namely that the
founding affidavit is to be disregarded by
the court as hearsay as
the deponent does not have personal knowledge of the facts contained
therein and the founding affidavit
does not set out a factual basis
upon which the applicant bases its grounds of review.
[4]
[13]
On the merits of the
review application, the third respondent denies that the second
respondent committed any misconduct, gross
irregularity or exceeded
his powers.
The
relevant test for review
[14]
The test applicable to
review proceedings has been enunciated by the Constitutional Court in
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
[5]
and more recently in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine)
v
Commission for
Conciliation, Mediation and Arbitration and Others
[6]
with reference to
Herholdt
v Nedbank Limited
[7]
and
Herholdt v
Nedbank Ltd and Others
[8]
.
[15]
The review test is a
narrow one. This court may set an arbitration award aside only if the
award represents a decision that is so
unreasonable that no
reasonable commissioner could make. An applicant in a review
application must show that the commissioner's
conduct resulted in an
unreasonable decision. This Court may no longer set aside an award
only on account of a process related
irregularity. The function of
the reviewing court is limited to a determination as to whether the
commissioner's decision is one
that could not be reached by a
reasonable decision maker on the available material before him/her.
This Court must decide whether
the commissioner's conduct in the
proceedings and which conduct is called into question had the result
of an outcome that falls
outside the bands of decisions to which a
reasonable decision maker could come to on the available material.
[16]
The first step in a
review is to consider whether the commissioner has committed an
irregularity. In doing so, the court must consider
the evidence as it
appears from the record and compare it to the award and reasoning of
the commissioner. Once an irregularity
has been identified, the
materiality of the irregularity becomes relevant. An irregularity is
material if it is a material departure
from the principles of law or
a material failure to consider and determine the evidence or the
case. In order to satisfy the first
enquiry the irregularity must be
material.
[17]
If this court finds
that a material irregularly exists, then the next step is to
determine whether another reasonable decision maker,
in the absence
of the irregularity and considering the evidence and issues as a
whole, could still arrive at the same outcome.
If this Court is
satisfied that the same outcome could not reasonably follow, then the
review must succeed.
Merits of the review application
[18]
Before dealing with the
merits of the review application, I will deal with the two points
raised by the third respondent namely,
that the founding affidavit
should be disregarded as it contains hearsay evidence and the
founding affidavit fails to set out any
factual basis for the review
of the award.
Personal knowledge by deponent
[19]
Advocate Kela who
appeared for the applicant argued that as a review application is
premised on the arbitration award and the record
of proceedings the
deponent to the founding affidavit does not have to have personal
knowledge as he/she can get information from
reading of the award and
the record of proceedings.
[20]
Mr Van Niekerk who
appeared on behalf of the third respondent argued that as the
deponent did not attend the arbitration proceedings
in absence of a
confirmatory affidavit by Rabothatha, the whole founding affidavit is
hearsay and as hearsay is inadmissible I
must disregard the founding
affidavit in its entirety.
[21]
In
Maharaj
v Barclays National Bank
[9]
Corbett JA in considering the requirement of a deponent to an
affidavit having personal knowledge stated as follows:
'Where
the affidavit fails to measure up to these requirements, the defect
may, nevertheless, be cured by reference to other documents
relating
to the proceedings which are properly before the Court….The
principle is that, in deciding whether or not to grant
summary
judgment, the Court looks at the matter “at the end of the day”
on all the documents that are properly before
it.'
[22]
In
Barclays
National Bank v Love
[10]
it was stated as follows:
'…We
are concerned here with an affidavit made by the manager of the very
branch of the bank at which overdraft facilities
were enjoyed by the
defendant. The nature of the deponent's office in itself suggests
very strongly that he would in the ordinary
course of his duties
acquire personal knowledge of the defendant's financial standing with
the bank. This is not to suggest that
he would have personal
knowledge of every withdrawal of money made by the defendant or that
he personally would have made every
entry in the bank's ledgers or
statements of account; indeed, if that were the degree of personal
knowledge required it is difficult
to conceive of circumstances in
which a bank could ever obtain summary judgment.' [My emphasis]
[23]
In
Shackleton
Credit Management v Microzone Trading 88 CC and Another
[11]
it was held that:
'…[f]irst-hand
knowledge of every fact which goes to make up the applicant's cause
of action is not required, and that where
the applicant is a
corporate entity, the deponent may well legitimately rely on records
in the company's possession for their personal
knowledge of at least
certain of the relevant facts and the ability to swear positively to
such facts...'
[24]
These judgments deal
with affidavits deposed to by persons employed by financial
institutions in support of applications for summary
judgment,
however, the principles enunciated therein are in my view equally
applicable to affidavits deposed to by union officials
on behalf of
their members in support of applications for the review and setting
aside of arbitration awards.
[25]
Review applications are
generally based on the award and the record of proceedings which
consists of the bundles of documents before
the commissioner and the
transcript of the evidence of the witnesses who testified at the
arbitration proceedings. This Court is
required in considering a
review application to decide whether the award on the evidence before
the commissioner is reasonable.
This Court considers the question of
whether the award is reasonable by considering the grounds of review
set out in the founding
and supplementary affidavits, the award and
the evidence before the commissioner.
[26]
It is in my view not
necessary that the deponent to the founding affidavit have personal
knowledge of the allegations contained
therein to the extent that the
deponent should actually have been present at the arbitration
proceedings.
[27]
The fact that a
deponent to the founding affidavit was not present at the arbitration
proceedings which is the subject matter of
the review application
will not necessarily be fatal to a review application, particularly
where the grounds of review are that
the conclusions reached by the
commissioner on the evidence before him/her are not reasonable and
are not related to the conduct
of the commissioner at the arbitration
proceedings.
[28]
Where an applicant's
grounds of review are that the commissioner committed misconduct
during the arbitration proceedings which misconduct
cannot be
established on the record of proceedings, the requirement that the
deponent should have personal knowledge to the extent
that he/she was
actually present at the arbitration proceedings would apply.
[29]
As the grounds of
review in this application are not that the second respondent
committed misconduct during the course of the arbitration
proceedings
which would require evidence on affidavit by a person who was present
at the arbitration proceedings, it was not necessary
for Gqoba to
have been present at the arbitration proceedings in order for her to
depose to the founding affidavit in support of
the review
application. A confirmatory affidavit by Rabothatha was also not
necessary in light of the applicant's grounds of review.
[30]
Accordingly, I am of
the view that the allegations contained in the founding affidavit do
not constitute hearsay and I will not
disregard the allegations
contained therein.
Founding affidavit lacks basis for review
[31]
Mr Kela argued that
what is of paramount importance in a review application is the
material that is before the court and that is
that the court must be
in possession of the award and the evidence that was before the
commissioner. Mr Kela submitted that failure
of an applicant to point
out each and every aspect in the founding affidavit cannot prevent
this Court from scrutinising the award
and the reasons given for the
award.
[32]
Mr Van Niekerk
submitted that the founding affidavit fails to set out any facts
establishing misconduct or an irregularity on the
part of the second
respondent and makes no reference to the evidence or any portion of
the record in support of the applicant's
submissions that the award
is reviewable. Mr Van Niekerk argued that the founding affidavit
appears to be a simple generic affidavit
and does not provide any
basis for the review of the award. Mr Van Niekerk's argument further
state that failure to refer to the
record in the founding affidavit
in effect means that there is no record before the court and that
what the applicant required
the third respondent and this court to do
was to read the entire record and to tell the applicant where the
reviewable irregularities
are as the applicant has not done so.
[33]
I agree with Mr Van
Niekerk. The applicant's founding affidavit fails to set out any
factual basis to support the allegations that
the second respondent
committed irregularities, misconducted himself or exceeded his
powers. No reference has been made to the
record of proceedings at
all in support of the grounds of review. I agree with Mr Van Niekerk
that it appears that the applicant
wanted this Court to read the
entire record of proceedings for it and to determine whether the
second respondent committed any
irregularities, misconduct or
exceeded his powers.
[34]
This is not the
function of this Court. An applicant cannot simply place a founding
affidavit with general or generic grounds of
review which are not
supported by facts together with the award and the entire record of
proceedings before this Court and then
request the court to
scrutinize the record of proceedings, the award and reasons given for
it to determine whether the award is
one a reasonable decision maker
could have arrived at on the evidence before him/her. The applicant
is obliged to set out in its
founding and supplementary affidavits
the facts, with reference to the record of proceedings, in support of
the allegations that
the award is not reasonable or the commissioner
committed misconduct or gross irregularities in the conduct of the
proceedings.
It is not sufficient for an applicant to simply allege
in general terms that the award is unreasonable with no reference
whatsoever,
to the facts and record of proceedings on which these
allegations are based.
[35]
A general statement by
an applicant that an award is unreasonable in the founding affidavit
may be sufficient where such applicant
has supplemented the grounds
upon which it is alleged the award is unreasonable in a supplementary
affidavit. The purpose of a
supplementary affidavit is for an
applicant, once in receipt of the record of proceedings to amplify
the grounds of review raised
in the founding affidavit with reference
to the record or add new grounds of review not raised in the founding
affidavit which
become apparent to an applicant after considering the
record.
[36]
The applicant did not
file a supplementary affidavit in the application and has not
supplemented or amplified its general and scant
grounds of review
with reference to the record.
[37]
It is trite that an
applicant is bound by the grounds of review contained in the review
application unless the grounds have been
amended or supplemented.
[12]
[38]
In
Comtech
(Pty) Ltd v Molony N.O. and Others
[13]
,
the LAC stated as follows:
'
The
difficulty with the appellant’s case in this regard relates to
whether the founding affidavit contains the factual grounds
required
by Rule 7A (2)(c) of the Rules of the Labour Court. Rule 7A (2)(c) of
the Rules of the Labour Court requires a party who
applies for a
review, such as the appellant in this matter, to deliver a notice of
motion that must be supported by “an affidavit
setting out the
factual and legal grounds upon which the applicant relies to have the
decision or proceedings corrected or set
aside.” Rule 7A
requires the notice of motion to call upon, in this case, the
commissioner “to show cause why the decision
or proceeding
should not be reviewed and corrected or set aside.”
In
my view, the contents of par 15 of the founding affidavit relate to
conclusions of law. There is nothing either in par 15 or
anywhere
else in the founding affidavit which sets out the factual grounds
upon which the appellant sought to base its legal grounds
of review.
In par 15 of the founding affidavit the deponent said that the
commissioner erred in his award in that he “failed
and or
neglected and/or refused to apply his mind to the evidence led at the
arbitration proceedings” but did not motivate
this bald
allegation by reference either to the evidence or the award.
The
deponent to the founding affidavit also said in par 15 thereof that
the commissioner “furthermore did not apply his mind
to the
relevant case law, applicable to the facts of the matter which was
presented to him, and therefore exceeding his powers
as commissioner
in not applying the relevant statutory authorities to the applicable
facts of the case.” He did not say what
case law he was
referring to that the commissioner failed to apply nor did he specify
the so-called “relevant statutory authorities”
applicable
to the case that he complained that the commissioner failed to apply.
There is absolutely no factual basis advanced
for these complaints.'
[39]
An applicant is obliged
to set out the factual basis for the allegation that the award is
unreasonable and must stand or fall by
his founding affidavit.
[14]
[40]
The deponent to the
founding affidavit makes the bald allegation that the second
respondent committed a reviewable irregularity/gross
misconduct by
finding that the applicant's conduct amounted to a dismissible
offence under the circumstances. The deponent does
not set out the
factual basis for this conclusion and there is no motivation for this
allegation by reference to evidence before
the second respondent or
the award itself.
[41]
The deponent to the
founding affidavit makes further bald allegation that the
second respondent failed to apply his mind to
the facts and had he
done so he would have realised on the strength of Strauss' evidence
alone that the applicant would not have
been dismissed.
[42]
The applicant has not
advanced any factual basis for this bald allegation and has not
referred to the portions of Strauss' evidence
the second respondent
is alleged to have failed to apply his mind to.
[43]
It certainly does
appear that what the applicant intended was for this Court to
scrutinise the entire record and to tell the applicant
if and in what
respects the award is unreasonable.
[44]
As stated above this is
not the function of this Court. The applicant is required to make out
a case in the founding affidavit,
which it has hopelessly failed to
do.
[45]
In argument Mr Kela
submitted that the second respondent should have been alerted to the
biasness of Grove who was the chairperson
of the disciplinary hearing
and a witness at the arbitration. Mr Kela further submitted that the
second respondent failed to identify
the issues before him,
misdirected himself in finding that the fact that Rabothatha was
informed about the scrap was a common cause
fact, did not appreciate
that the third respondent's witnesses, Mr Ueckermann and Strauss
contradicted each other and did not appreciate
the discrepancies in
all the witnesses' versions, did not consider whether evidence was
led as to the breakdown of the trust relationship,
failed to apply
the correct test in assessing the credibility of the witnesses and
probabilities and came to conclusions not supported
by the evidence.
[46]
None of these
submissions of Mr Kela were set out in the founding affidavit. An
applicant cannot simply make bald allegations in
the founding
affidavit in support of the review application and then attempt to
argue a case at the hearing of the review application.
This not only
prejudices the respondent opposing the review application as the
respondent has no idea what the applicant's case
is and is unable to
answer thereto but also causes the respondent to incur costs in
opposing the application and defending the
award in circumstances
where it does not know what case it has to meet.
[47]
Accordingly, in absence
of any factual basis for the bald and general grounds of review set
out in the founding affidavit, I find
that the applicant has failed
to make out a case for the review of the award and the application
falls to be dismissed.
[48]
As I have found that
the applicant has failed to set out any factual basis for the review
of the award, it is not necessary for
me to consider the merits of
the review application. I do, however, feel that I must address the
one ground of review raised by
the applicant namely that the second
respondent allowed the third respondent to call witnesses at the
arbitration proceedings not
called at the disciplinary hearing.
[49]
In
Sidumo
v Rustenburg Platinum Mines Ltd
[15]
,
the Constitutional Court held that the arbitration under the auspices
of the Commission for Conciliation, Mediation and Arbitration
("CCMA") is a
hearing
de novo
.
[50]
In
Country
Fair Foods (Pty) Ltd v CCMA and Others
[16]
the LAC held that:
'…However,
the decision of the arbitrator as to the fairness or unfairness of
the employer's decision is not reached with
reference to the
evidential material that was before the employer at the time of its
decision but on the basis of all the evidential
material before the
arbitrator. To that extent the proceedings are a hearing
de novo
.'
[51]
It is trite that
arbitration proceedings are hearings
de
novo
and that the
arbitrator is not only bound to consider the evidence before the
disciplinary hearing, but is in fact obliged to consider
all the
evidentiary material placed before him at the arbitration
proceedings. In my view the second respondent would have committed
a
gross irregularity had he refused to allow the third respondent to
call other witnesses to give evidence to establish the fairness
of
Rabothatha's dismissal.
[52]
In my view there is no
merit to this ground of review.
Costs
[53]
Mr Van Niekerk
submitted that in light of the fact that the applicant failed to set
out any factual basis to support the grounds
of review, made no
reference at all to the record of proceedings and simply filed the
record which meant that the third respondent's
legal representative
had to read the entire record to oppose the application, the
application is frivolous and vexatious and warrants
a special costs
order being granted against the applicant.
[54]
On the other hand, Mr
Kela argued that the applicant is obliged in law to place the entire
record before the court to place the
court in the position to
consider the review and a special costs order is accordingly not
warranted.
[55]
In
Peninsula
Eye Clinic (Pty) Ltd v Newlands Surgical Clinic and Others
[17]
,
the High Court, Western Cape Division in considering the award of
attorney and own client costs stated the following:
'The
applicant has achieved substantial success in the application and is
entitled to costs against the respondent company. The
applicant has
sought a costs order on the scale as between attorney and client. It
has also sought an order directing that the
respondent's liability
for the applicant's costs should not be paid by the respondent 'out
of any funds that are attributable to
[the applicant] as a
shareholder'. These special orders are sought because it is contended
that the respondent's conduct has been
vexatious. In this regard the
applicant's counsel called in aid the judgment in
In re Alluvial
Creek Ltd
1929 CPD 532
in which is was held (per Gardiner JP)
that an attorney and client costs order might properly be made where
the proceedings had
had 'the effect of being vexatious, although the
intent may not have been that they should be vexatious. There are
people who enter
into litigation with the most upright purpose and a
most firm belief in the justice of their cause, and yet whose
proceedings may
be regarded as vexatious when they put the other side
to unnecessary trouble and expense which the other side ought not to
bear'.
It is an approach that has since been endorsed in a number of
subsequent cases. I think it is apposite in the current matter.'
[56]
In
Lutchman
v Pep Stores and Another
[18]
this court held as follows:
'I have
expressed very strong views about whether this Court's time should
have been wasted by it having to entertain what I respectfully
consider to have been a frivolous and vexatious application. Courts
usually express their displeasure by imposing an appropriate
order as
to costs - an attorney and client costs order. I am strongly inclined
to show my displeasure by making such an order of
costs against
Roshni. Having said that, however, it seems to me she was not
properly advised. It would be inequitable, I think,
for me to visit
what may well be the indiscretions of her advisors, on a litigant who
was unemployed at the time of the launching
of this application.'
[57]
The applicant in this
matter is a trade union well versed in litigation before this Court.
The applicant should know that to come
to this Court on a founding
affidavit which fails to lay any basis for the review of the award is
undesirable. The applicant should
also know that it is obliged to
only file the relevant portions of the record of proceedings and not
the entire record.
[19]
I am aware that cost orders on an attorney and own client scale
should not be granted lightly, however, I am of the view that this
Court should show its displeasure with having to read the entire
record in order to properly adjudicate the application in
circumstances
where the applicant failed to make out a case in the
founding affidavit. The third respondent and this Court were put
through considerable
inconvenience and trouble as the applicant had
failed to properly motivate its general grounds of review. The third
respondent
in my view should not be responsible for these costs and I
accordingly award costs against the applicant on an attorney and own
client scale.
Order
[58]
The review application
is dismissed.
[59]
The applicant is
ordered to pay the third respondent's costs on an attorney and own
client scale.
Venter AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate Kela
Instructed
by: Ndumiso Voyi Incorporated
For
the Respondents: Mr Van Niekerk of Van Niekerk Attorneys
[1]
Act 66 of 1995, as amended.
[2]
Paras 16 - 18, page 10 of the pleadings.
[3]
Para 11, page 11 of the pleadings.
[4]
Paras 6 - 14, pages 25 - 27 of the pleadings.
[5]
(2007) 28
ILJ
2405 (CC) at paras 105 - 112.
[6]
(2014) 35
ILJ
943 (LAC).
[7]
(2012) 33
ILJ
1789 (LAC).
[8]
(2013) 34
ILJ
2795 (SCA).
[9]
1976 (1) SA 418
(A) at 423H.
[10]
1975 (2) SA 514
(D) at 516G-H.
[11]
2010 (5) SA 112
(KZP) at para 13.
[12]
See
Cusa v Tao Ying Metal
Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC).
[13]
Unreported judgment - case number DA12/05 dated 21
December 2007 at paras 15 - 17.
[14]
See
National Union of
Mineworkers and Another v CCMA and Others
(2010) 31
ILJ
703
(LC) and
Harmony Gold Mining Co Ltd (Target
Mine) v National Union of Mineworkers and Others
(2012) 33
ILJ
2609
(LC).
[15]
Supra
at para 8.
[16]
(1999) 20
ILJ
1701 (LAC) at para 11.
[17]
2014 (1) SA 381
(WCC) at para 61.
[18]
[2004] 4 BLLR 374
(CC) at para 25.
[19]
Paragraph 11.2.6 of the Practice
Manual of the Labour Court of South Africa (2 April 2013).