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[2015] ZALCJHB 111
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Moyo v CCMA and Others (JR1099/12) [2015] ZALCJHB 111 (26 March 2015)
REPUBLIC
OF SOUTH AFRICA
The Labour Court
of South Africa, JOHANNESBURG
Judgment
Case
no: JR1099
/12
DATE:
26 MARCH 2015
Not
Reportable
In the matter
between:
THABANI
MOYO
....................................................................................................................
Applicant
And
CCMA
............................................................................................................................
First
Respondent
COMMISSIONER
KERRY
DRISCOLL
...............................................................
Second
Respondent
EXECUJET
(PTY)
LTD
.............................................................................................
Third
Respondent
MARIANNA
MULLER
...........................................................................................
Fourth
Respondent
CINDY
ROBERTSON
.................................................................................................
Fifth
Respondent
Date
Heard: 28 January 2015
Date
Delivered: 26 March 2015
JUDGMENT
WHITCHER
J
[1]
On 24 May 2014 the Applicant filed an application to review the
arbitration award granted against him by the Second Respondent
on 3
April 2012 under CCMA case number GAJB171/05. When this matter came
before this court on 28 January 2015 the Applicant contended
that the
only issue for determination is Third Respondent’s condonation
application for the late filing of its answering
affidavit. I pointed
out to him that the review application was set for hearing as well.
[2]
The answering affidavit was filed one day late and served 31 days
late on the Applicant because it was erroneously sent to his
former
service address. I am satisfied that the Third Respondent has
provided a sufficient explanation for the delay in filing
its
answering affidavit. On this basis alone, it should be entitled to an
order condoning its failure to file the affidavit timeously.
The
prospects of success, an important factor in considering an
application for condonation, are dealt with in the context of the
Third Respondent’s application to dismiss the review
application.
[3]
The Third Respondent opposes the review on the following basis:
(i)
The Applicant’s review application revolves around the evidence
allegedly led at the arbitration, the evaluation of this
evidence and
the conduct of the proceedings but, to date, he has failed without
good reason, to file a complete record of the arbitration
proceedings. There is no application before the court which
demonstrates and proves with reference to the record the alleged
irregularities.
(ii)
The Applicant’s founding affidavit does not set out material
facts clearly and concisely.
(iii)
The Second Respondent did not commit any reviewable irregularities.
(iv)
The arbitration proceedings under review arose from a court order
which referred the Applicant’s dispute to arbitration.
The
Applicant has made application to rescind that court order. The Third
Respondent contends that the Applicant’s rescission
and review
applications are mutually destructive and cannot logically co-exist.
[4]
The context of the dispute and the relief sought is apparent from the
chronology and time periods of the events which transpired.
[5]
In January 2005 the Applicant referred a dispute concerning an
alleged unfair discrimination claim in terms of section 10 of
the EEA
to the CCMA. In addition, an ordinary unfair dismissal claim was also
referred.
[6]
In a signed agreement, the parties consented to conferring
jurisdiction on the CCMA to arbitrate the unfair discrimination
claim.
[7]
However, at the arbitration proceedings, the Applicant amended his
dismissal dispute to an automatically unfair dismissal claim.
The
arbitrator, on application by the Third Respondent, ruled that the
CCMA lacked jurisdiction to determine the automatically
unfair
dismissal claim. The Applicant made application to review and set
aside this ruling, which application was dismissed on
13 December
2006.
[8]
The Applicant then purported to refer an unfair discrimination claim
to the Labour Court. However his referral was dismissed
for
inter
alia
a failure to file a statement of claim and a default
appearance. The Applicant sought to rescind and appeal these
decisions. On
30 August 2011 this Court directed that Applicant’s
case be referred to the CCMA for arbitration on the basis of the
signed
arbitration agreement. The Applicant made application to
rescind this order but also proceeded with the arbitration.
[9]
The arbitration was held over four days (6 and 7 February and 12 and
13 March 2012) and resulted in an award of approximately
40 pages.
The award includes a detailed recording of the evidence led by the
parties at the arbitration.
[10]
On 24 May 2012, the Applicant filed this review application against
the award. The Applicant also proceeded with his application
to
rescind the judgment which directed his dispute be arbitrated by the
CCMA. The Applicant has filed various further applications
in pursuit
of this rescission application.
[12]
In respect of the review application, the CCMA filed the record on 28
June 2012 and advised the Applicant of same.
[13]
After the record was transcribed, the Applicant discovered that the
record of one day of the proceedings, the 7th February,
is missing.
[14]
In September 2013 the Second Respondent deposed to an affidavit in
which she stated that she has provided her handwritten notes
and a
typed version to the Applicant. She swore the notes are indeed the
notes she had taken during the arbitration and rejected
the
Applicant’s claim to the contrary.
[15]
The Applicant applied to this Court for a directive on the missing
record. In the application he stated that the missing audio
files
contained the evidence he had presented at the arbitration. On 18
October and 5 December 2013 the Court directed the parties
to attempt
to reconstruct the record of 7
th
February. The parties did
not do so.
[16]
The Applicant contends that the Third Respondent did not contact him
to reconstruct the record. The Third Respondent contends
that the
duty to prosecute and expedite the review rests on the Applicant and
in this he ought to have contacted them to arrange
a reconstruction
meeting, but he failed to do.
[17]
In any event, what is pertinent and a decisive fact is that in
affidavits deposed to by him, the Applicant adopted a consistent
rigid stance, namely that he is not prepared under any circumstances
to attempt to reconstruct a record of the proceedings held
on the 7
th
February. He stated that, even if the parties had met to
attempt to reconstruct the record, he would have refused to do so
because, in his view, the handwritten notes provided by the Second
Respondent were fabricated by her and she deliberately destroyed
the
recordings of his evidence to “devise a perverted and corrupt
award”. He is only prepared to consider a hearing
de novo
before a different commissioner. It is thus clear that the Applicant
is not prepared to attempt a reconstruction
under any
circumstances.
His sole aim is to secure a new arbitration.
[18]
The Practice Manual of the Labour Court provides that a review
application is by its nature an urgent application and therefore
the
applicant is required to ensure that all the necessary papers in the
application are filed within twelve months of the date
of the launch
of the review applications (including heads of argument). The Manual
requires that records must be filed within 60
days of the date on
which the applicant is advised by the registrar that the record has
been received but makes provision for the
respondent to grant the
applicant an extension of time. It also makes provision for
condonation applications in the event of non-compliance
with the
Practice Manual. The Applicant has failed to make such applications.
[19]
The dispute that gave rise to the arbitration in question arose in
2005, nearly 10 years ago. The Applicant launched his review
application on 24 May 2012. Therefore in terms of clause 11 of the
Practice Manual all necessary papers, including the record and
affidavits
based on the record
, should have been filed by 2
April 2014, a year ago.
[20]
The Labour Appeal Court decision in
Lifecare
Special Health Services (Pty) Ltd t/a Ekhuhlengeni Care Centre v CCMA
& others
[1]
dealt with a situation where a portion of the recordings of an
arbitration was lost and the commissioner’s handwritten notes
were transcribed and provided to the Respondent in an attempt to
address this problem. It was found that:
“
The
court should have suggested to the parties that…in so far as
might prove necessary…Whether the product of their
endeavours
is adequate for the purposes of the appeal or review is for the court
hearing same to decide…
Those concerned are expected
to cooperate.
With the requisite cooperation, there is
reason to believe that a fair reproduction will be feasible. When it
appeared that there
were difficulties with regard to the record,
it was the obligation of Lifecare, as the reviewing party, to
initiate the enquiries and steps
which have been set forth
in this judgment.” (own emphasis)
[21]
The issue is whether the Applicant’s refusal to
attempt
a reconstruction of just one of the days of a four day arbitration is
justified and, as a result, the matter should be remitted
back to the
CCMA for a new hearing before another commissioner. A successful
reconstruction would spare the Third Respondent, its
witnesses and
CCMA the burden of a new arbitration years in circumstances where the
dispute which gave rise to the arbitration
arose almost 9 years ago
and the original arbitration took four (4) days to complete.
[22]
According to the Applicant the missing tapes covered his testimony at
the arbitration and some of the issues put to him during
cross-examination.
[23]
In my view the Applicant’s refusal to even attempt the
reconstruction in question is not justified. The award of the
Second
Respondent is approximately 40 pages long. It includes a detailed
recording of the evidence led by the parties. The first
six (6) pages
contain is dedicated to just the evidence led by the Applicant and is
extremely detailed. Nowhere in his complaint
does the Applicant
allege and attempt to prove that the award does not accurately and
sufficiently record the evidence he led at
the arbitration. He also
provided no evidence that the notes provided by the Second Respondent
are fabricated. He merely makes
bald allegations.
[24]
Considering the stance taken by the Applicant there is no room for an
order which would give the Applicant a further chance
to attempt a
reconstruction of the missing part of the record.
[25]
In light of all the above, especially the Applicant’s
unreasonable refusal to even consider a reconstruction, there is
no
good reason to remit the matter to the CCMA for a new hearing. The
Third Respondent is entitled to finality on this matter which
has
dragged on for years, through no fault on its part.
[26]
The result of the Applicant’s action is that I have a review
application before me which is dependent on the record of
the
proceedings, but there are no submissions before me with reference to
the record. The application is therefore defective and
unsubstantiated, but there is no good reason to give the Applicant a
further chance to rectify same. For these reasons the application
is
dismissed.
[27]
My decision to dismiss the review application is fortified by the
fact that, in any event, the Applicant does not set out any
clear
sustainable grounds of review in his application. The Third
Respondent also filed an extensive answering affidavit wherein
it
essentially reconstructed the issues and evidence allegedly led
before the commissioner and established, with reference to this
material, that the Second Respondent committed no reviewable
irregularities. In sum, his non-appointment to the posts in question
had nothing to do with race. He did not have the requisite
qualifications and experience. The Employment Equity Act does not
entitle
him to be appointed merely on the basis that he is black. The
difference in remuneration was not based on race but on position,
service and qualifications. There is no evidence to the contrary from
the Applicant.
[28]
In light of these findings there is no need to determine whether the
Applicant has prosecuted two inconsistent remedies with
the
rescission and review application.
[29]
Order
1. The late filing
of the Third Respondent’s answering affidavit is condoned.
2. The application
to review the arbitration award granted against the Applicant by the
Second Respondent on 3 April 2012 under
CCMA case number GAJB171/05
is dismissed.
3. There is no order
as to costs.
Whitcher
J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Self Represented
For
the Third Respondent: W Hutchinson instructed by Norton Rose
Fulbright South Africa
[1]
[2003] 5 BLLR 416
(LAC).