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[2015] ZALCJHB 336
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South African Municipal Workers Union obo Sebolao v City of Matlosana Local Municipality and Others (JR2962/12) [2015] ZALCJHB 336 (29 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR2962/12
In
the matter between:
SOUTH AFRICAN
MUNICIPAL WORKERS UNION obo J SEBOLAO
Applicant
and
CITY OF MATLOSANA
LOCAL MUNICIPALITY
First Respondent
SOLOMON MODIPA
NO
Second Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
Delivered:
29 September 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
Applicant approached the Court seeking an order reviewing and setting
aside and/or correcting the arbitration award issued by
the Second
Respondent (Arbitrator) under case number NWD011208 dated 23
September 2012. In the award, the Arbitrator concluded
that the
dismissal of Sebolao was procedurally and substantively fair.
Preliminary
issues:
[2]
The
Applicant’s Notice of Application together with a founding
affidavit in respect of the review application was filed and
served
on 30 November 2012. The Applicants’ contention is that the
First Respondent had not proffered a reasonable explanation
for the
delay in filing its opposition as no condonation application was
filed. An application was subsequently made on 15 May
2014 to set the
matter down on an unopposed roll. The matter was then set down on 3
March 2015 in terms of a notice sent to the
parties on 4 June 2014.
Only on 12 February 2015 did the First Respondent file its Notice to
Oppose. No answering affidavit was
however filed until on 2 March
2015.
[3]
On
3 March 2015, the matter was postponed to 30 April 2015, with an
order that the heads of argument had to be filed in accordance
with
the rules of this court and the Practice Manual. Costs occasioned by
the postponement were reserved.
[4]
In
the answering affidavit, in which condonation was also sought,
Mabuda, the Acting Municipal Manager of the First Respondent averred
that the application for review was not received, and that the First
Respondent only became aware of it after receipt of the notice
of
set-down of the matter on the unopposed roll. This notice came to the
attention of the First Respondent during January 2015.
The First
Respondent’s attorneys of record where then instructed to
attend to the matter.
[5]
After
a perusal of the Court’s file, it was established that the
review application was sent to the First Respondent via facsimile
on
30 November 2012. Mabuda nevertheless denied that the application was
received and referred to a copy of a register of documents
received
at facsimile number 018 487 8594. Mabuda further averred that the
facsimile machine with this number had been out of order
for some
time and was currently out of use.
[6]
In
the replying affidavit, it was pointed out that the answering
affidavit was delivered hopelessly out of time and the First
Respondent
had failed to properly apply for condonation for such
delivery of the answering affidavit. The Applicants also denied that
the
First Respondent could not have received the application for
review and reference was made to the service affidavit deposed to by
the Applicants’ attorney of record, Mr Xolisa Ngako.
[7]
Other
than disputing that the application was not received, it was further
pointed out that the First Respondent’s Human Resources
Manager, Diseko, had actively participated in the reconstruction of
the record of the hearing that was held on 3 June 2013 under
the
auspices of the Third Respondent, and was clearly aware of the
purpose of the reconstruction exercise. Furthermore, it was
contended
that the First Respondent was served with a notice in terms of Rule
7A on 13 November 2013. To this end, it was submitted
that the
allegation that the First Respondent was not aware of the application
for review was a blatant lie.
[8]
It
was also submitted that the First Respondent had also lied about the
date it had received the notice of set-down from the office
of the
Registrar of this Court following a request to place the matter on an
unopposed roll. In this regard, it was pointed
out that the
notice of set-down was received on 4 June 2014, and not in January
2015 as alleged.
Evaluation:
[9]
Rule 7 (9) of the Rules of this Court provides that any person
wishing to oppose the granting of the order prayed in the notice
of
motion must, within 10 days after receipt of the notice of amendment
or notice that the applicant stands by its notice of motion,
deliver
an affidavit in answer to the allegations made by the applicant. In
circumstances where a party did not comply with the
time frames set
out in these provisions, it is expected of it to file a substantive
application for condonation, and fully set
out the circumstances that
led to the time frames not being complied with. Accordingly, this
court in line with the provisions
of Rule 12 (3) may on good cause
shown, condone non-compliance with its Rules.
[10]
Whether a party has shown good cause is dependent on a consideration
of a variety of factors including those set out in
Melane
v Santam Insurance Co. Ltd
[1]
in the following terms:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[11]
Other
factors to be considered is whether it was in the interests of
justice to grant condonation
[2]
;
whether the application for condonation was brought as soon as the
party which applies for it became aware of the need to do so
[3]
.
To enable this court to properly exercise its discretion, a party
seeking condonation must set out all the facts and circumstances
relating to the delay, and most importantly, must provide a
satisfactory explanation and account for each period of the delay.
Any period of delay that is unaccounted for, will result in an
indulgence being refused
[4]
.
[12]
There are various difficulties with the First Respondent’s
application for condonation. The first is that the application
is
intertwined with the application for review. Rule 11 (1)
provides that all other interlocutory application must be brought
on
notice supported by an affidavit. It was submitted on behalf of the
First Respondent during argument that a separate application
could
not be filed due to the pressures of time. This is hardly an
acceptable excuse in the light of the fact that at the very
least,
the First Respondent should have known in June 2014 that such an
application would be necessary. The fact that the First
Respondent
was under administration following the suspension of its Municipal
Manager does not imply that its operations came to
a standstill, and
no one was available to deal with matters before this court. From the
facts of this case, it can hardly be said
that the Municipal Manager
was involved in this matter to the extent that it was required of him
or her to personally attend to
condonation application. Any other
official within the HR of the Municipality could have attended to the
matter.
[13]
The second difficulty is that the opposing affidavit was filed on 2
March 2015, whilst the review application was filed on
29 November
2012. The delay in filing the answering affidavit is over two years,
which is excessive in the extreme.
[14]
The third difficulty with the application for condonation is that the
explanation proffered for the delay is neither acceptable
not
satisfactory. The review application was served by facsimile on the
First Respondent on 30 November 2012. There is a service
affidavit to
confirm that indeed the application was properly served on the First
Respondent. The First Respondent nevertheless
denied having received
the application and relied on a register of its facsimile in regards
to documents received.
[15]
It is however not known who had compiled that register, and the
information in that regard cannot be taken on face value, more
particularly in the light of the further excuse by the First
Respondent that its fax machine was either out of order or not in
use. No confirmatory affidavits were filed in support of the register
or to the effect that indeed the fax machine was out of order.
The
period surrounding when the machine was not working is unknown, nor
was it established as to when it was serviced and became
fully
functional. There is a contradiction between stating that a document
was not received on the basis of a register of documents
received,
and an allegation that the fax machine was out of use.
[16]
A further difficulty with the First Respondent’s explanation
for the delay and its averment that it was not aware of
the
application is that on the Applicant’s contention, a process to
reconstruct the record was embarked upon by both parties,
with the
First Respondent’s Human Resources Manager being involved
in that process. In my view, it is improbable that
the Human
Resources Manager could not have known what the purpose of that
reconstruction of the record was. Had it been the First
Respondent’s
case that it was not aware of the review application, it would have
at the most, enquired from the Third Respondent
on 8 May 2013 when a
notice of set-down in respect of the reconstruction of the record was
received, or at most, on 3 June 2013
when the parties met for the
reconstruction of the record. It is therefore improbable that the
First Respondent could not have
known of the review application at
any time before June 2014 when the notice of set down was sent to it.
[17]
Even more problematic is the First Respondent’s submissions in
regards to when it became aware of the review application.
The notice
setting the matter down on an unopposed roll was sent to the parties
by the office of the Registrar of this Court on
5 June 2014.
Surely the First Respondent must have known at the latest in June
2014 that there was a review application to
attend to when it
received the notice of set-down. The First Respondent acknowledged
that this notice was received, and in my view,
it could not have been
received in December 2014 when it was sent on 4 June 2014. Mabuda did
not state however when this notice
was received. Nevertheless the
First Respondent had allegedly instructed its attorneys of record to
act on the matter. It is however
not known when these instructions
were issued to the attorneys, or when the attorneys had uplifted the
file and what action was
taken between 4 June 2014 when the notice of
set-down was received and 12 February 2015 when a notice to oppose
was filed, including
up to 2 March 2015 when the answering affidavit
was filed. No attempt was made whatsoever to give an account of the
delay for this
period.
[18] In
Moila
v Shai N.O. and Others
[5]
,
Zondo
JP (as he then was) had the following to say in respect of an
explanation for the delay in filing a review application a year
after
the expiry period of six weeks:
‘
I
do not have the slightest hesitation in concluding that this is a
case where the period of delay is excessive and the appellant’s
purported explanation for the delay is no explanation at all. I
accept that the case is very important to the appellant. However,
the
weight to be attached to this factor is too limited to count for
anything where the period of delay is as excessive as is the
case in
this matter and the explanation advanced is no explanation at all. If
ever there was a case in which one can conclude that
good cause has
not been shown for condonation without even considering the prospects
of success, then this is it. Where, in an
application for
condonation, the delay is excessive and no explanation has been given
for that delay or an “explanation”
has been given but
such “explanation” amounts to no explanation at all, I do
not think that it is necessary to consider
the prospects of success.’
[19]
The above remarks are even more apposite in this case. The delay in
filing the answering affidavit is in excess of two years,
which is
excessive in the
extreme
.
The explanation proffered by the First Respondent is riddled with
inconsistencies, improbabilities and a clear lack of candour.
In the
words expressed in
Moila
,
this ‘explanation amount to no explanation at all’. In
the circumstances, there is no basis to even consider whether
the
First Respondent has any prospects of success on the merits of the
review application, and accordingly, the interests of justice
would
dictate that condonation should not be granted.
The
review application:
[20]
Sebolao was employed by the First Respondent as a driver with effect
from 1 March 2005. He was dismissed on 3 January 2012
following a
disciplinary enquiry into allegations of misconduct pertaining to
failure to obey reasonable instructions given by
a person having the
authority to do so, and dishonesty in using Municipality property in
an ‘unrelated manner’.
[21]
Having referred an alleged unfair dismissal dispute to the Third
Respondent (SALGBC), attempts at conciliation failed and the
matter
came before the Second Respondent for arbitration. At the arbitration
proceedings, evidence was led on behalf of the
First
Respondent
by the Foreman, Amos Nobadula. His testimony was to the effect that
on 6 May 2012, he went to an area called Alabama
to do inspections.
As he drove through Jouberton towards Alabama, he had noticed a big
area that had been tarred on the side walk.
He had called Sebolao and
instructed him to remove the tar from the area. Despite Sebolao’s
undertaking to do as instructed,
he had nevertheless failed to do so.
The charge of dishonesty against Sebola pertained to his act of
putting tar in an area that
he was not assigned to.
[22]
Sebolao’s testimony was that during the week of 2 to 5 May
2012, he and his team were expected to fill potholes in the
Meiringspark area. On 6 May 2012, having filled up potholes, and
since they were left with tar that was unsuitable, they had decided
to use it on a pavement in Jabulane Street,
Jouberton
as the
area was recently flooded. Sebolao had further testified that he had
done nothing wrong in using the tar in the manner he
did. Amongst his
team he was the only one to be charged. He had accepted that the
Foreman had given them an instruction to remove
the tar after it was
used on the pavement. He nevertheless viewed the instruction as
unreasonable in that the removal of the tar
would have resulted in
further damage to the pavement, and furthermore, once removed, the
tar could no longer be used for any other
purpose.
Grounds
of review and evaluation:
[23]
In seeking a review of the award, the Applicants’ contention
was that the Arbitrator committed gross misconduct in that
he came to
a conclusion that no reasonable arbitrator could reach in that:
a)
He
failed to apply his mind to the fact that none of the First
Respondent’s witnesses had testified that the tar that
was used on the pavement could still be used on the road to fill in
the potholes.
b)
He
failed to apply his mind to the fact that the instruction issued by
the Foreman to remove the tar from Jabulane Street was unreasonable
as this would have caused damage to the pavement, and since
further the tar could not be used for any other purpose.
c)
He
failed to apply his mind to the fact that even if found guilty, the
dismissal was too harsh as Sebolao was a first offender and
did not
benefit from the alleged misconduct.
d)
He
had failed to appreciate the circumstances under which the alleged
misconduct took place.
e)
He
arrived at the conclusion that a dismissal was fair when there was no
evidence of gross insubordination by Sebolao, and only
assumed that
any alleged insubordination had to be gross. This finding was made in
circumstances where Sebolao was not charged
and dismissed for gross
insubordination.
[24]
The
review test is that as set out in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[6]
,
and in this regard, the question to be posed is whether the decision
reached by the Arbitrator is one that a reasonable decision-maker
could not reach on the material placed before him or her
[7]
.
In
Herholdt,
the SCA further re-emphasized that the reviewing court should
intervene in circumstances where the decision of the Arbitrator is
“
entirely
disconnected with the evidence”
or is “
unsupported
by any evidence”
and “
involves
speculation”
[8]
.
In
Goldfields
Mining South Africa (Pty) Ltd v CCMA
[9]
the LAC further summarised the review test as follows;
‘
In short: A
review court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts
presented at the
hearing and came to a conclusion which was reasonable to justify the
decisions he or she arrived at.’
[25]
Having had regard to the grounds of review, and further having
considered the award and the reasoning of the Arbitrator in
the light
of the material placed before him, it is my view that the decision
arrived at failed the standard of reasonableness envisaged
in
Sidumo.
In this regard, it is taken into account that:
a)
The
Arbitrator failed to properly evaluate the evidence placed before him
that Sebolao and his team had throughout the week in question,
been
tasked with the filling of potholes. In the course of their duties
the condition of the tar had deteriorated, requiring them
to use it
in an area where they deemed suitable;
b)
Sebolao
and his team had then used the tar on a pavement which was within the
Municipality’s area, and with the sole purpose
of alleviating
future problems with flooding in the area in question;
c)
Selebalo
had testified, which testimony was corroborated by his witness, that
they had done nothing wrong as they had a discretion
in the course of
their duties;
d)
There
was evidence placed before the Arbitrator that the instruction issued
by the Foreman to remove the tar where it was fitted
was an
unreasonable one, as this would have resulted in further damage to
the pavement, and once removed, the tar would have had
no further
use;
e)
The
Arbitrator also failed to take into account all relevant factors in
deciding whether the sanction of dismissal was appropriate
in
circumstances where Sebolao was a first offender, had not been
charged with gross insubordination and where there was no evidence
of
dishonesty.
[26]
In
Head
of the Department of Education v Mofokeng and Others
[10]
it was held that:
“
The failure
by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt
v Nedbank Ltd
and this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and others have held that before such an irregularity will result in
the setting aside of the award, it must in addition reveal
a
misconception of the true enquiry or result in an unreasonable
outcome.”
[27]
In the light of the omissions pointed out as above and as further
ventilated on behalf of the Applicants, it is concluded that
the
Arbitrator essentially failed to apply his mind to the issues that
were before him and thus committed a reviewable irregularity.
The
issues that the Arbitrator failed to take into account were material
to a proper determination of the dispute. The flaws in
the reasoning
of the arbitrator as evidenced in the failure to apply his mind to
the material issues placed before him implies
that the arbitrator had
undertaken the enquiry in the wrong manner and thus arrived at an
unreasonable result. In the end, the
failure to properly consider the
material placed before him had the distorting effect of rendering the
result of the award unreasonable.
To this end, the award should be
set aside.
[28]
The record of arbitration proceedings is incomplete despite attempts
at reconstructing it. Little was achieved in this regard
in that the
handwritten notes of the Arbitrator are either illegible or difficult
to follow. In the circumstances, a fair determination
of this dispute
requires it to be remitted back to the Third Respondent to be heard
de novo
.
[29]
Having had regard to considerations of law and fairness, and given
the First Respondent’s conduct in attempting to belatedly
oppose this application, and the fact that its application for
condonation was declined, it is deemed appropriate that it should
be
burdened with the costs of this application. Furthermore, costs on 3
March 2015 were reserved after the hearing of the matter
was
postponed in order to enable the parties to file heads of argument. A
perusal of the file indicates that the Applicants filed
their heads
of argument on 24 February 2015 before the hearing. There is however
no indication that the First Respondent filed
its heads of argument
before 3 March 2015. To the extent that the postponement was
occasioned by the failure of the First Respondent
to file its heads
of argument before 3 March 2015, considerations of law and fairness
dictate that it should also be burdened with
those costs.
Order:
a)
The
application for condonation for the late filing of the answering
affidavit is dismissed.
b)
The
arbitration award issued by the Second Respondent under case number
NWD 011208 dated 23 September 2012 is reviewed and set aside.
c)
The
matter is remitted back to the Third Respondent to be heard
de
novo
by an Arbitrator other than the Second Respondent.
d)
The
First Respondent is ordered to pay the costs of this application,
including wasted costs occasioned by the postponement on 3
March
2015.
________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants: Mr X Ngako of Ruth Edmonds Attorneys
On
behalf of the First Respondent: L Pentz of Waks Silent INC Attorneys
[1]
1962
(4) SA 531
(A) at 532B-E
[2]
See
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (5) BCLR 465
(CC) and also
NEHAWU
obo Mafokeng and Others v Charlotte Theron Children’s Home
2004] 10 BLLR 979 (LAC)
[3]
Seatlolo and
Others v Entertainment Logistics Service (A Division of Gallo Africa
Ltd
)
[2011] JOL 27264
(LC)
[4]
See NUMSA and
another v Hillside Aluminium [2005] 6 BLLR 601 (LC)
[5]
(2007) 28 ILJ 1028
(LAC) at para 34
[6]
[2007] 12 BLLR
1097
(CC), held that [at par 110]:
[7]
See also
Herholdt
v Nedbank Ltd
(2013) 34 ILJ 2779 (SCA) at para [12] where the SCA held that the
test
“…
involves
the reviewing court examining the merits of the case ‘in the
round’ by determining whether, in the light
of the issues
raised by the dispute under arbitration, the outcome reached by the
Commissioner was not one that could reasonably
be reached on the
evidence and other material properly before the Commissioner. ...
The reasons are still considered in order
to see how the
Commissioner reached the result. That assists the court to determine
whether that result can reasonably be reached
by that route. If not,
however, the court must still consider whether apart from those
reasons, the result is one that a reasonable
decision- maker could
reach in the light of the issues and the evidence.”
[8]
At par [13]
[9]
(2014) 35 ILJ 943
(LAC) at para [16]
[10]
[2015] 1 BLLR 50
(LAC) At para [30]