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[2015] ZALCJHB 252
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Mabuza v Metal And Engineering Industries Bargaining Council and Others (JR496/13) [2015] ZALCJHB 252 (12 August 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 496/13
In the matter between:
MFANIMPELA MABUZA
APPLICANT
and
METAL AND ENGINEERING
INDUSTRIES
BARGAINING COUNCIL
FIRST RESPONDENT
JOSEPH MPHAPHULI
N.O
SECOND RESPONDENT
AUTOMATIC MASS
PRODUCTION
THIRD RESPONDENT
Heard
:
11 August 2015
Delivered
:
12 August 2015
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
On 25 November 2010, the first respondent (the Bargaining Council)
issued a certificate to the effect that an unfair dismissal
dispute
referred to the council by the applicant remained unresolved and that
the dispute may be referred to arbitration. On 11
March 2011, the
Bargaining Council issued a notice of set down for an arbitration
hearing before panellist Karen Kleinot. The arbitration
hearing was
convened for 19 May 2011. On 9 May 2011 the third respondent applied
for a postponement of the arbitration hearing.
It did so on the basis
of an affidavit deposed to by the owner of the third respondent who
stated that he would be on holiday from
19 May to 22 May 2011 and
that he had made financial arrangements in respect of that holiday
and that any postponement of the holiday
would cause him financial
prejudice. The applicant in the present proceedings did not agree to
the postponement. On 19 May 2011,
the commissioner issued a ruling in
terms of which the matter was postponed on the basis that no further
postponements were to
be countenanced.
[2]
The applicant was clearly unhappy with the ruling and filed an
application in the High Court to have the matter reviewed and
set
aside. It is not clear from the papers before me what the result of
that application was, but it appears that on 28 November
2011, the
Constitutional Court declined to hear a direct appeal lodged by the
applicant against the order granted by the South
Gauteng High Court.
[3]
In the interim, on 10 August 2011, the applicant wrote to the
Bargaining Council to advise that Commissioner Kleinot did not
advise
of the new date of any arbitration hearing when the matter was
postponed. The applicant recorded that on 2 August 2011 he
had
visited the Bargaining Council’s offices and was told that the
matter had been postponed and that it would be heard by
another
commissioner. He says the following:
‘
I
suspect the commissioner conspired with the employer to hold the
arbitration behind my back so that the case could be dismissed
due to
my absence. Could you please provide me with the date of the
arbitration hearing so that I can apply for condonation. You
should
know the date because you were the case manager handling this case.’
[4]
On 10 August 2011, the Bargaining Council sent out a notice of set
down in terms of which the arbitration hearing was enrolled
for 17
October 2011. The matter came before Commissioner Williams who on
account of the applicant’s failure to attend the
hearing,
dismissed the applicant’s case.
[5]
On 31 January 2013, some 18 months later, the applicant applied for
the recission of the dismissal ruling. In his application,
the
applicant refers to his letter dated 10 August and his request to the
case manager to disclose the date on which Commissioner
Kleinot had
dismissed his case. He submitted that he was not in wilful default
since the case had already been dismissed by Commissioner
Kleinot,
and recorded that he had advised the Bargaining Council that he would
not attend the arbitration hearing set down for
17 October 2011. The
applicant went on to say that the Bargaining Council should give him
the dismissal ruling issued by Commissioner
Kleinot so that he could
apply for condonation for not attending the arbitration ‘that
they held behind my back’. The
applicant also appears to make
allegations of bribery against the Registrar of the High Court in
relation to the issuing of a court
order dismissing his application
and noted that he was ‘still dealing with the fraudulent order
which was issued by the registrar
of the constitutional court’.
[6]
On 19 February 2013, the second respondent issued a rescission ruling
in which he refused to rescind the order granted on 17
October 2011.
He recorded that the arbitrator concerned had reason to believe that
the parties had been notified of the process
timeously and properly.
He recorded further that the applicant had submitted that he had no
intention to attend on the day, since
that as far as he was
concerned, the matter had been dismissed on an earlier date. The
second respondent went on to find that the
applicant made a conscious
decision not to attend the scheduled proceedings, and that in those
circumstances, there was no reason
to reverse the ruling to dismiss
his referral and that the application for rescission accordingly
should not succeed.
[7]
The present proceedings are concerning an application to review and
set aside that ruling.
The
applicable legal principles
[8]
The threshold for review is fairly well-established. Section 145
permits the review of an arbitration award, amongst other grounds,
where the arbitrator commits a gross irregularity. This extends to
latent gross irregularities or, put another way, instances where
an
arbitrator fails to apply him or herself to the available evidence,
makes defect of factual findings and the like. In these
instances, a
party seeking to set aside an award or ruling must establish both the
irregularity or defect relied on and that
the
Sidumo
threshold is met.
In Gold Fields Mining SA
(Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC), the Labour Appeal Court noted that it is not
sufficient for an award to be set aside simply to establish a gross
irregularity
in the conduct of the arbitration proceedings; in the
event that a gross irregularity in the conduct of the proceedings is
established,
it is incumbent on an applicant to establish that the
result was unreasonable or ‘
put
another way, whether the decision that the arbitrator arrived at is
one that falls outside the band of decisions to which a
reasonable
decision-maker could come on the available material
’.
In other words, the review court must consider whether despite the
arbitrator’s reasoning, the result is nevertheless
capable of
justification on the available material.
[9]
What this analysis requires where what is at issue is any assessment
of whether a reviewable defect and/or irregularity has
occurred or
what its impact is to be upon an award, is a determination first of
the nature of the error alleged to have been committed
by the
arbitrator and any distorting effect that the error may have had on
the outcome of the arbitrator’s award. If it is
reasonably
clear that but for the identified error relied upon the award would
have been different or cannot stand on its own reasoning,
then it is
prima facie
an
unreasonable award. The court must then have regard to the issues and
the evidence as a whole to determine whether or not the
outcome is
nevertheless capable of being sustained on the
Sidumo
tes
[10]
The applicant has not clearly articulated in any grounds for review.
What he states in his founding affidavit is that when
his dispute was
enrolled for arbitration in May 2011, a postponement was granted by
Commissioner Kleinot and that she did not tell
him of the new date on
which the arbitration would take place when she postponed the matter
on 19 May 2011.The applicant goes on
to say ‘The MEIBC then set
down the matter for hearing on 17 October 2011. A new Commissioner
was appointed to hear the matter.
I did not attend that arbitration
because the case had already been dismissed by the previous
Commissioner’. The applicant
continues, in relation to his
prospects of success, to avert that the second hearing convened by
the Council on 17 October 2011
was ‘fraudulent’ because
Commissioner Kleinot had already dismissed the case.
[11]
None of the above discloses any grounds for review as contemplated by
section 145 of the LRA. What the applicant does in the
present
application is simply to restate the case already placed before the
commissioner in the application for rescission.
[12]
Even if I were to assume, reading the present application generously,
that the applicant contends that the second respondent
committed one
or another gross irregularity in the conduct of the proceedings under
review, that is clearly not so. The second
respondent was clearly
aware of the test to be applied and applied that test to the facts
before him. He cannot be faulted in reaching
the conclusion that he
did, particularly in circumstances where on the applicant’s own
version, he had been aware of the
date on which the arbitration
proceedings had been set down and consciously elected not to attend.
It was not open to the second
respondent to make any finding other
than that the applicant had failed to show good cause for his
default. Although the second
respondent does not make any
determination into existence or otherwise of any
prima facie
case or prospects of success on the part of the applicant, given the
manifest failure to explain the failure to attend the hearing,
this
was not necessary in the circumstances.
[13]
In my view therefore, the applicant has failed to establish any
irregular conduct on the part of the second respondent and
in any
event, the second respondent’s conclusion falls within the band
of decisions to which reasonable decision-makers could
come on the
available material. The application for review accordingly stands to
be dismissed.
[14]
Finally, I would add that the applicant has been misguided in
initiating and conducting the present litigation. When this matter
was originally enrolled for hearing during July 2014, this court
postponed the application and directed that the applicant obtain
pro
bono legal assistance (which is available at this court) with the
intention to remedy non-compliance with the provisions of
the rules
of this court regulating review applications, and in particular, Rule
7A (6) and (8). Instead of heeding that advice,
the applicant filed
an application to rescind that order, which he indicated at the
hearing of the present application that he
would not be pursuing. The
applicant has persisted throughout in contending that the
postponement of the arbitration hearing somehow
constituted a
dismissal of the case. He has also persisted with unfounded and
scurrilous allegations of fraud and forgery on the
part of the
commissioners concerned, and the registrars of the High Court and the
Constitutional Court. This is a case in which
ordinarily, the
applicant’s conduct would have justified a punitive order for
costs. However, since the present application
is unopposed, the issue
of costs does not arise.
For
the above reasons, make the following order:
1.
The application is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: In person