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[2015] ZALCCT 35
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South African Social Security Agency v NEHAWU obo Punzi and Others (C233/14) [2015] ZALCCT 35; (2015) 36 ILJ 2345 (LC) (30 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C233/14
DATE:
30 APRIL 2015
Reportable
In
the matter between:
THE SOUTH
AFRICAN SOCIAL SECURITY
AGENCY
...................................................
Applicant
And
NEHAWU OBO
MALIZO PUNZI AND 13
OTHERS
.............................................
First
Respondent
BELLA GOLDMAN
N.O
.........................................................................................
Second
Respondent
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
.................................................................................................
Third
Respondent
Date
heard: 18 February 2014
Delivered:
30 April 2015
Summary:
Application to review an arbitration award; arbitrators should not
condone an agreement to decide a dispute on written
submissions and
documentary evidence alone in the absence of a stated case.
JUDGMENT
RABKIN-NAICKER
J
[1] The applicant
seeks to review and set aside an arbitration award under case number
WECT 18416-13. The review concerns the compensation
awarded by the
arbitrator as a result of a finding of that suspensions of employees
amounted to an unfair labour practice. She
awarded an amount of
R600.00 to each of the applicants.
[2] The
arbitration, in which the applicants claimed they had suffered an
unfair labour practice (in respect of their precautionary
suspension)
was “argued on the papers”. The second respondent (the
Commissioner) records that it was agreed that no
evidence would be
led and that the case would be decided on the papers in terms of
arguments in writing, and the documents before
her.
[3] In her award
under the heading of ‘Documentary evidence’, the
Commissioner records that:
“
The
parties submitted bundles of documents in evidence which were agreed
as being what they purported to be.”
[4] Other than
the above agreement, i.e. that no oral evidence was needed to prove
the authenticity of the documents, there was
no “stated case”
drawn up and agreed between the parties.
[5] I fail to
comprehend how a dispute which hinges on the fairness of the conduct
of an employer can be decided (in the absence
of a stated case)
without parties giving oral evidence. A decision made in such a way
means that the Labour court must answer all
the following questions
in the negative:
“
(i) In
terms of his or her duty to deal with the matter with the minimum of
legal formalities, did the process that the arbitrator
employ give
the parties a full opportunity to have their say in respect of the
dispute? (ii) Did the arbitrator identify the dispute
he or she was
required to arbitrate? (This may in certain cases only become clear
after both parties have led their evidence.)
(iii) Did the arbitrator
understand the nature of the dispute he or she was required to
arbitrate? (iv) Did he or she deal with
the substantial merits of the
dispute? (v) Is the arbitrator's decision one that another decision
maker could reasonably have arrived
at based on the evidence?”
[1]
[6] The process
used in the arbitration proceedings simply does not allow for a due
and proper arbitration of the dispute. The Commissioner
based her
findings on the written submissions of the parties. In particular she
based her award on the fact that the employer did
not respond (in
reply) to the submission in the employees’ written argument
that the suspensions exceeded the 60 days provided
for in its
disciplinary code.
[7] It is worth
repeating the meaning of the term ‘stated case’
(sometimes known as a ‘special case’) as
considered in
NUM
& Others v Hartebeestfontein Gold Mining Co Ltd
[2]
as follows:
“
Provision
is made in Rules of Court and in a number of statutes for the
submission to a Court of questions of law "in the form
of a
special case". See, for example, Rule 49 (10) of the Uniform
Rules of Court; proviso (i) to Appellate Division Rule 5
(4) (c); s 3
(3) of the Admission of Persons to the Union Regulation Act 22 of
1913; s 26 (1) of the Workmen's Compensation Act
30 of 1941;
s 20
of
the
Arbitration Act 42 of 1965
; and s 30 (1) (b) of the Stamp Duties
Act 77 of 1968. In none of them is "special case" defined,
presumably because the
expression has an accepted meaning. Mozley and
Whiteley's Law Dictionary 7th ed says sv "special case"
that it is:
"1.
A statement of facts agreed to on behalf of two or more litigant
parties, and submitted for the opinion of a court of justice
as to
the law bearing upon the facts so stated."
Stroud's Judicial
Dictionary 4th ed states that:
"A
special case is a written statement of the facts in a litigation,
agreed to by the parties, so that the court may decide
these
questions according to law... It is also known as a case stated."
This
meaning is reflected in Rule 33 of the Uniform Rules of Court. It
provides in subrule (1) that the parties to any dispute may,
after
institution of proceedings, agree upon a written statement of facts
in the form of a special case for the adjudication of
the Court, and
in subrule (2) (a) that
"such
statement shall set forth the facts agreed upon, the question of law
in dispute between the parties and their contentions
thereon".
It
is, therefore, implicit in the expression "in the form of a
special case" that there should be a statement of the facts
agreed by the parties.”
[8] In the
absence of such a stated case, oral evidence should be led on the
material facts in dispute at arbitrations in terms
of the LRA.
Commissioners and arbitrators should not condone an agreement between
parties that no oral evidence be led unless such
a stated case has
been agreed, and on which they may draw legal conclusions. Although
parties may regard submitting documents and
argument as a fast way of
resolving a dispute on the day of arbitration, it in fact renders the
award issued susceptible to review.
In the result, the principle of
speedy resolution of disputes is ultimately sacrificed.
[9] In the
circumstances I make the following order:
1.
The award under case number WECT18416-13 is reviewed and set aside.
2.
The dispute is remitted to the third respondent for arbitration anew
before a commissioner other than second respondent.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
R. Nyman instructed by the State Attorney
First
Respondent: NEHAWU
[1]
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others (2014)
35 ILJ
943 (LAC) at paragraph 20
[2]
1986 (3) SA 53
(A)