About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 396
|
|
Bloem Water (Pty) Ltd v South African Municipal Workers Union (SAMWU) and Others (JR639/2012) [2015] ZALCJHB 396 (6 November 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
No: JR 639/2012
In
the matter between:
BLOEM
WATER (PTY)
LTD
APPLICANT
And
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
(SAMWU)
FIRST RESPONDENT
MS
C
SEBUDI
SECOND RESPONDENT
HELEN
HLATSHWAKO
N.O
THIRD RESPONDENT
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL (SALGBC)
FOURTH RESPONDENT
Date
heard: 10 July 2015
Date
delivered: 06 November 2015
Summary
:
Permission
to file the explanatory and confirmatory affidavits. Review- the
Commissioner did not take into consideration of fairness
and did not
act reasonably in her heavy-handed approach
.
JUDGMENT
COOK AJ;
Introduction
[1] The Applicant seeks
to review and set aside the arbitration award of the First Respondent
(“the Commissioner”) and
remit the matter to the Fourth
Respondent for a hearing
de novo
. The Second and Third
Respondents oppose the application and seek consent to introduce an
explanatory affidavit and confirmatory
affidavits of Joseph Ndi
Tshabalala, Sheaks Hash and Michelle Botes.
[2] At the conclusion of
the matter the parties agreed that the Court should listen to the
audio recording of the arbitration proceedings
to be in a better
position to determine the context and tone of certain remarks made.
Unfortunately the recordings could not be
found, and the parties
agreed that the court decide the matter in their absence.
The interlocutory
application to admit the additional affidavit
[3] It was common cause
that the deponent to the answering affidavit, Joseph Ndi Tshabalala
was not present at the arbitration hearing
and did not represent the
employee at the arbitration hearing. Sheiks Hash represented the
employee.
[4] In terms of a
confirmatory affidavit Sheiks Hash states:
‘
3.
I was previously employed by the Third Respondent South African
Municipal Workers Union as a shop
steward and I represented the
Second Respondent C Sebudi in the arbitration proceedings which were
held under the auspices of the
Third Respondent at Bloemfontein on 23
January 2012 wherein Second Respondent acted as Commissioner.
4.
I have read the answering affidavit deposed to by Joseph Ndi
Tshabalala on 22 July 2013,
a copy of which is appended hereto and
which I initial for identification purposes. I confirm the
correctness of the allegations
contained therein insofar as they
relate to the arbitration proceedings, particularly emphasising the
correctness of the allegations
after conciliation had failed and the
arbitration proceedings resumed shortly after 14:00 on 23 January
2012 until the finalisation
of the matter’.
[5] The Court has a
discretion to permit further affidavits.
‘…
This
discretion must be exercised judiciously, having considered whether a
proper explanation for its late filing exists, whether
the material
contained in the affidavits are relevant and whether the filing of
such affidavits would be prejudicial to the other
party’.
[1]
[6] The Court is of the
view that the Third Respondent has provided a satisfactory
explanation as to why the affidavit was filed,
and that the filing of
the affidavit does not constitute new material but is filed in order
to cure a defect.
[7] The Court is
furthermore of the view that the balance of prejudice favours the
filing of the affidavits, as if the explanatory
affidavit is not
allowed, it would mean that the review application would only be
based on the affidavit of the Applicant and the
Second and Third
Respondents would be denied the opportunity of putting forward their
opposition.
[8] The Court is also
mindful that the affidavit was filed prior to the hearing of this
matter and that the litigation had not reached
such a state of
finality that it would cause undue prejudice. Furthermore there has
been a tender for any wasted costs occasioned
by the circumstances
set out and the filing of the affidavit and the introduction thereof
in the proceedings.
[9] Accordingly, the
Court shall allow the filing the explanatory affidavit and the Court
is further of the view in light of the
confirmatory affidavit that
the cause of complaint in respect of the personal knowledge in
regards to the answering affidavit has
been cured.
The review application
[10] From the record the
following appears:
10.1
‘
Madam
Commissioner: How would you be proving what you have just said?
Documentary evidence, oral evidence?
Mr Mkhosana: By leading oral evidence.
Madam Commissioner: Oral evidence?
Mr Mkhosana:
Yes’.
[2]
‘
Mr Mkhosana:
Yes, I must also furthermore mention Madam Commissioner that the
other witness that the employer wants to call he is
not available
today. I have spoken to him about a week ago and he indicated that on
this day he will be scheduled in another matter,
he will not be
available but if there is a later date he will try his level best to
make himself available. That is all for now’.
[3]
10.2
‘
Madam
Commissioner under case number FSD101102 the parties are SAMWU on
behalf of Sebudi v Bloem Water. My name is Helen Hlatswako.
I am
going to be the Commissioner today. The date is 23
rd
of January 2012, the time is 14:57. I am going to hand over to the
parties to introduce themselves from left to right’.
[4]
10.3
‘
Madam
Commissioner: Okay and there are no other documents which are going
to be admitted into evidence, only those documents which
are before
you as I have stated in my ruling. You may call your witnesses.
Mr Mkhosana: Yes Mr Tshwane has gone
to call the witnesses.
Madam Commissioner: .............. I
do not have time your witnesses are supposed to be here. They are not
supposed to be A-WOLLING
somewhere else, because my ruling was very
clear that 14:00 the arbitration is starting.
Mr Mkhosana: Yes inaudible.
Commissioner: He has gone to call them, I do not know how inaudible
Madam Commissioner:
Okay Ntati we will pass you then, we will proceed with the other
side. I cannot assist you in terms of your
evidence. If time comes
and they have not finished, well there is nothing I can do about it.
You may proceed Ntati, you may call
your first witness.
[5]
“
Madam
Commissioner: Thank you. Do you want 2 minutes and then you can do
your closing sir?
Mr Hash: Yes Madam.
Madam Commissioner: Okay we’ll
take 2 minutes then.
Mr Hash: Thank you.
HEARING ADJOURNS
[6]
10.4
‘
Madam
Commissioner: Actually Mr Mkhosana is supposed to start and not you.
Can you proceed?
Mr Mkhosana: Okay should I put it next
to me?
Madam Commissioner: Please.
Mr Mkhosana: Yes thank you Madam
Commissioner.
Madam Commissioner: Right go on,
thanks. Proceed.
Outside enquiry around when how much
longer proceedings to last.
Madam Commissioner: Alright proceed.
Mr Mkhosana: Thank you Madam
Commissioner. Number one the employer wants to place the following on
record that the employer wanted
to all witnesses and at the time when
we started the employer indicated to the Commissioner the position of
the witnesses and the
employer also.
Madam Commissioner: Ntati please do
not misinform because this meeting was – you were fully aware
that the arbitration is
going to start at 14:00 and your witnesses
were supposed to be here. So do not mislead.
Mr Mkhosana: Can I be on record Madam
Commissioner.
Madam Commissioner: You decided for
some or other reason at 14:00 your witnesses were not here.
Mr Mkhosana: Can I?
Madam Commissioner: So do not mislead.
Mr Mkhosana: Madam Commissioner, with
due respect – with due respect.
Madam Commissioner: Proceed.
Mr Mkhosana: Cannot be on record
whatever the Commissioner is opposed to, it is okay, can I just be on
record. Can I just be given
that opportunity?
Madam Commissioner: I will not allow
you to mislead the record.
Mr Mkhosana: Well Madam Commissioner.
Madam Commissioner: Proceed.
Mr Mkhosana: I repeat that the
employer stated that the position of the witnesses to the
Commissioner and the employer further requested
that the other party
should start which was not granted and the other party also did not
agree, until when the Commissioner took
a decision that we should
proceed. We proceeded up until around 16:30. The employer also
indicated
Madam Commissioner: But are you doing
closing or are you stating your case for the purpose of your
witnesses? If you are not
going to talk about the evidence that
was led here today then give the other party an opportunity to do so.
Mr Mkhosana: The employee indicated
that the witnesses are here.
Madam Commissioner: No you are going
to.
Mr Mkhosana: The Commissioner
indicated to the employer that the case is closed. I am going to the
facts.
Madam Commissioner: Ntati you may
proceed with your closing. You may leave the room Ntati. Proceed’
.
[11] The Commissioner in
her award states:
‘
The
Respondent did not submit any evidence to prove that the reason for
the dismissal was fair. Therefore, the Respondent failed
to show that
the Applicant contravened a rule and the contravened rule was a valid
or reasonable rule, which the Applicant was
aware or could reasonably
be expected to be have been aware. Further, the Respondent failed to
show that the contravened rule was
consistently applied and the
sanction of dismissal was fair’.
[7]
Analysis
[12] The record
demonstrates that the Commissioner was more concerned about
concluding the matter on the day than ventilating the
issues. The
Commissioner was over zealous and placed too much emphasis on
expedience as opposed to conducting a meaningful arbitration.
The
Commissioner did not take into consideration of fairness and did not
act reasonably in her heavy-handed approach.
[13] The Court is in
agreement with the Applicant that the Commissioner committed
misconduct in denying the employer an opportunity
to call its
witnesses and to apply for a postponement and that the arbitration
award does not deal with the important issues such
as the exclusion
of the employer’s witnesses from the arbitration.
[14] As a result of the
Commissioner’s misconduct, the Applicant was deprived of the
opportunity of presenting evidence. The
Commissioner even went
further by not allowing the representative of the Applicant to place
his concerns on record and asked the
representative to leave the
arbitration.
[15] The Court is of the
view the opposition of the review was unreasonable in the
circumstances and accordingly the Court finds
no reason in law and
fairness that costs should follow the result.
[16] Accordingly the
arbitration award should be reviewed and set aside.
[17] The Court makes the
following order:
1.
The
Third Respondent is granted permission to file the explanatory and
confirmatory affidavits of Joseph Ndi Tshabalala, Sheaks
Hash and
Michelle Botes marked as “FA1”, “FA2” and
“FA3”.
2.
The
Third Respondent is to pay the costs of the application to file the
explanatory and confirmatory affidavits and the incidental
costs
incurred by the Applicant as a result of the introduction of
Annexures “FA1”, “FA2” and “FA3”
into the record of the main application.
3.
The
arbitration award dated 20 January 2012 under case number FSD101102
is reviewed and set aside.
4.
The
alleged unfair dismissal dispute of the Second Respondent is remitted
to the Fourth Respondent for a hearing
de
novo
to be conducted by any Commissioner other than the First Respondent.
5.
The
Third Respondent is to pay the costs of the review application.
____________
Cook
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES.
For the
Applicant:
Advocate Y Saloojee
Instructed
by:
Sunil Narian Incorporated
For the
Respondent:
S Grubler
Instructed
by:
J Nortje
[1]
Misa v SAMWU on behalf of Members v Madikor Drie (Pty) Limited
[2006] 1 BLLR 12
(LC) at para 18.
[2]
page 65
[3]
page 66
[4]
Page 65
[5]
Page 69
[6]
page 121
[7]
page 47 and 48