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[2015] ZALCJHB 253
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South African State And Allied Workers' Union and Another v General Service Public Sector Bargaining Council and Others (JR1103/2009) [2015] ZALCJHB 253 (7 August 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR1103/2009
In
the matter between
:
SOUTH
AFRICAN STATE AND ALLIED WORKERS’ UNION
First Applicant
T
L KATI
Second Applicant
and
GENERAL
SERVICE PUBLIC SECTOR
BARGAINING
COUNCIL
First Respondent
ROBERT
J C
N.O.
Second Respondent
THE
EASTERN CAPE PROVINCE:
TREASURY
DEPARTMENT
Third Respondent
Heard:
1
July 2015
Delivered:
7 August 2015
Summary:
Review application – s 145 of the LRA – delay in
prosecuting review application - application
to dismiss – set
down of both applications– grounds of review set out in
application abandoned – raising new
ground of review in
argument – new ground of not pleaded – Rule 7A(2)(c) -
JUDGMENT
MALAN AJ,
Introduction
[1]
At the commencement of the hearing of this matter,
Mr Rautenbach SC, who appeared on behalf of the applicants in the
review application,
raised the point that
ex
facie
the notice of set down (dated 29
May 2015) the applicants received from the office of the Registrar of
this court, only the review
application had been set down for
hearing, and thus there was no proper notice of set down for the
third respondent’s application
to have the applicants’
review application dismissed (‘
the
dismissal application’
).
Consequently, so he argued, the dismissal application was not
properly before the court and it should therefore not be considered.
Only the review application should be considered and determined.
[2]
On the other hand, Mr Ramdaw, who appeared on
behalf of the third respondent, did not seriously challenge the fact
that the notice
of set down made no mention of the dismissal
application. The notice of set down only advised the parties
that the review
application had been set down for hearing on 1 July
2015. Nevertheless, he urged the court to consider both applications.
In support
of the aforesaid, my attention was invited to the
supplementary heads of argument and practice note delivered by Mr
Ramdaw on 25
June 2015. In the aforesaid, he raised the
dismissal application as a preliminary issue for determination.
[3]
In the
interest of justice and having regard to the fact that labour
disputes be brought to finality in good time in line with the
spirit
of the Labour Relations Act, 66 of 1995 (as amended) (‘
LRA’)
,
[1]
I
requested both parties to address me on the dismissal application as
well as the review application and reserved my judgment on
both in
order to give further consideration to the question whether or not
the dismissal application was indeed properly before
me.
[4]
Having considered the notice of set down, I am not
satisfied that the dismissal application was set down by the
Registrar for hearing
on 1 July 2015. The notice makes no mention of
the dismissal application nor does it contain any reference or
wording from which
the parties could reasonably infer that the
dismissal application was also set down for hearing on 1 July 2015.
It does not automatically
follow that the dismissal application would
be heard simultaneously with the review application.
[5]
It would be unreasonable to expect of a party to
assume that any one or more or all interlocutory applications will
also be heard
along with the review application, despite no mention
having been made of such by the Registrar in the notice of set down.
The
very purpose of the notice of set down is to inform the parties
of the date of the hearing and the nature of the hearing.
The
prejudice that a party will suffer in the absence of a proper notice
of the case he or she has to meet is far too severe and
so are the
potential consequence.
[6]
The fact that Mr Ramdaw raised in his
supplementary heads of argument and practice note the determination
of the dismissal application
as a preliminary issue does not cure the
fact that no notice of set down for the hearing of such application
was dispatched from
the office of the Registrar, or even from Mr
Ramdaw’s offices, for that matter. Any uncertainty in
this regard could
easily have been addressed and cleared up timeously
with the Registrar. However, this was not done.
[7]
In the premises, I find that the dismissal
application was not properly before me and consequently does not
require determination.
[8]
I now turn to deal with the review application.
The
review application and grounds of review
[9]
Before me is an opposed application in terms of
which the applicants seek to have the arbitration award (case number
PSGA 838-07/08)
dated 23 March 2010 (‘
the
award’
) handed down by the second
respondent (‘
the Commissioner’
)
on 27 March 2009 under the auspices of the first respondent (‘
the
Bargaining Council’
) reviewed and
set aside (‘
the review
application’
) in terms of s
145(1) of the LRA.
[10]
The grounds upon which the applicants contend the
award falls to be reviewed and set aside are contained in their
founding affidavit
as well as their supplementary affidavit.
However, I was informed by Mr Rautenbach during his argument that I
should disregard
these grounds of review as ‘
these
grounds have no prospects of success and go too far
.’
In the circumstances, it will serve no purpose to burden this
judgment by merely recording these grounds as no reliance
was placed
on them or any argument put forward in support of them. In
their stead, Mr Rautenbach sought to rely on the following
ground of
review, namely
‘
Each and every
incidents was properly explained but the arbitrator ignored this.
If he took her
[the second applicant’s]
evidence into account, no arbitrator
would have come to the conclusion that her dismissal was fair.’
[11]
This raises the question whether or not the review
application can and should be considered and determined on this ‘new’
ground of review.
[12]
The relevant provisions of s 145 of the LRA reads
as follows:
‘
(1)
Any
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award—
…
(2)
A
defect referred to in subsection (1), means
(a)
that the commissioner –
(i)
committed misconduct in relation to
the duties of the commissioner as an arbitrator
(ii)
committed a gross irregularity in the
conduct of the arbitration proceedings; or
(iii)
exceeded the commissioner’s
powers; or
(b)
that an award has been improperly
obtained.’
[13]
Rule 7A(2)(c) of the Rules of the Labour Court requires a party who
applies for a review, such as the applicants 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.’
[14]
In the
circumstances, the applicants were legally required in terms of Rule
7A(2)(c) read in conjunction with s 145 to set out in
its founding
affidavit (or supplementary affidavit in terms of Rule 7A(8)(a)) the
factual and legal grounds upon which they rely
to have the award
corrected or set aside. Put differently, the applicants were
required to set out the factual and legal
grounds in order to bring
them within the ambit of s 145(2). The rationale behind this is
quite clear, namely t
he
papers should properly apprise a respondent of the case to be met.
[2]
[15]
The
applicants have abandoned the grounds set out in their founding
affidavit and supplementary affidavit. The new ground
on which
they now seek to rely, is not set out in their papers, as they were
legally required to do.
[3]
This
new ground of review was raised for the first time during argument.
The applicants’ founding affidavit and supplementary
affidavit
does not provide any factual and legal grounds to support this new
ground of review. This ground has simply not
been pleaded.
[16]
In
County
Fair v CCMA
[4]
Landman J remarked that
failure to set out ‘
the
factual and legal grounds upon which the applicant relies”
will
normally be fatal.
[5]
[17]
During argument, I was also not referred to any
facts or evidence contained in the record and transcript of the
arbitration proceedings
(comprising some 900 pages), even if that
would have been permitted, to support or motivate the bald ground of
review, especially
in the light of the fact that it is both vague and
wide in the extreme. It simply lacks sufficient particularity to
sustain any
reasonable challenge to the award. It is not for
the court to mine the record and transcript in search for evidence to
find
factual and legal grounds that might fall under this general
ground of review, which ground is in any event nothing short of a
conclusion. This approach or practice cannot and should not be
condoned.
[18]
In
Naidoo
v NBCCI
[6]
it was held that it is
incumbent on an applicant in a review application to establish the
grounds for review with reference to the
award and the evidence. An
applicant’s bald statement that an arbitrator has failed to
apply his/her mind is insufficient.
The factual basis for the
allegation must be given.
[7]
[19]
In the unreported case of
Comtech
(Pty) Ltd v Mohony NO & others,
[8]
the Labour Appeal Court,
in dealing with the factual grounds required by Rule 7A(2)(c) of the
Labour Court Rules held at paragraphs
15-17 as follows:
'[15]
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
proceedings should not be reviewed and corrected or set aside".
[16]
In my view, the contents of para 15 of the founding affidavit relate
to conclusions of law. There is nothing either in para
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 para 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.
[17]
The deponent to the founding affidavit also
said in para 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
exceeded 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.'
[20]
Based on what is set out above, I conclude that
the review application cannot succeed. The applicants have
failed to, as they
are legally required to do, provide the factual
and legal basis upon which they seek to rely to have the award
reviewed and set
aside.
Costs
[21]
In terms of the provisions of ss 162(1) and (2) of
the LRA, I have a wide discretion where it comes to the issue of
costs.
[22]
In essence, the applicants have not only, at the
proverbial eleventh hour, abandoned their grounds of review upon
which they brought
the third respondent to court, but then persisted
with the review application premised on a new ground of review which
had not
been pleaded and is vague and wide in the extreme.
[23]
I do not believe that it is just and equitable to
burden the third respondent with the costs in the specific
circumstances of this
case, especially in the light of the fact that
it is entrusted with public funds.
[24]
Given the circumstances of this specific case, I
deem it just and equitable that the applicants must pay the costs.
Order
[25]
In the premises, I make the following order:
1.
The review application is dismissed with costs.
__________________
L M Malan, AJ
Acting
Judge of the Labour
Court of South Africa
APPEARANCES:
For
the applicant:
J G Rautenbach SC
Instructed
by Cheadle Thompson & Hayson Inc.
For
the third respondent:
Mr A Ramdaw
Instructed
by Ramdaw & Associate Inc.
[1]
Khumalo
& another v MEC Education KZN
(2014)
ILJ 613 CC at 42;
NEHAWU
v UCT
(2003)
24 ILJ 95 (CC) at 31.
[2]
If the original papers do not cover the point to be
argued, the supplementary papers should properly apprise the
respondent of the case to be met.
Moleah
v University of Transkei
1998 (2) SA 522
(Tk HC) 533.
Cf
the
general approach discussed in
Naude
v Fraser
[1998] ZASCA 56
;
[1998]
3 All SA 239
(SCA) 260, 1998 (4) SA 539 (SCA).
[3]
National
Union of Mineworkers & another v Commission for Conciliation,
Mediation & Arbitration & others
(2010)
31 ILJ 703 (LC) at [13].
[4]
[1998] 6 BLLR 590
(LC) at 580E–F.
[5]
See also
MIT
Tissue v Theron & others
[2000]
8 BLLR 947
(LC) at [23];
Moraka
v National Bargaining Council for the Chemical Industry & others
(2011)
32 ILJ 667 (LC) at [21] – [23].
[6]
[2012] 9 BLLR 915 (LC).
[7]
Minister
of Law and Order v Dempsey
1988 (3) SA 19
(A) 40;
Davies
v Chairman, Committee of the Johannesburg Stock Exchange
1991 (4) SA 43
(W).
[8]
DA12/05. See also
Hamandawana
v Dispute Resolution Centre & others
(2014)
35 ILJ 1312 (LC) at [8] – [10].