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[2015] ZALCD 9
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Madondo v Safety And Security Sectoral Bargaining Council and Others (D305/2013) [2015] ZALCD 9; (2015) 36 ILJ 2314 (LC) (28 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
D305/2013
DATE:
28 JANUARY 2015
Reportable
In
the matter between:
SERGEANT
BHEKITHEMBA DUMISANI MADONDO
.............
Applicant
And
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
...................................................
First
Respondent
R
M LYSTER
N.O
.............................................................
Second
Respondent
PUBLIC
SERVICE CO-ORDINATING
SOUTH
AFRICAN POLICE SERVICES
.........................
Third
Respondent
Heard: 7
January 2015
Delivered: 28
January 2015
Summary: Bargaining Council
arbitration proceedings -Review of proceedings. Decision of
arbitrator on jurisdictional issue- test
for review-not limited to
the Sidumo test-Determination as to whether decision right or wrong-
Determination of issues
de
novo
.
Bargaining
Council Agreement- Provisions requiring exhausting of internal
remedies-T
he
duty to exhaust internal remedies - a valuable and necessary
requirement in our law.
Procedure-
Allowing
a party to raise a new cause of action in argument-Court has a
discretion in review proceedings to consider same-Principle
involved
in exercising discretion is one of fairness-Discretion exercised
against allowing new cause of action to be raised at
argument stage.
JUDGMENT
PRIOR,
AJ:
Introduction
[1] This matter concerns an
application in terms of section 158 (1) (g) of the Labour Relations
Act
1
read with section 145 (2) (a) (ii) for
the review of an award handed down by the second respondent (“the
arbitrator”)
on the 13
th
March 2013 wherein the
arbitrator upheld a point
in limine
in favour of the third
respondent that no appeal had been lodged by the applicant against
his dismissal and that in essence this
internal procedure had to be
exhausted before the first respondent would have jurisdiction to
arbitrate the dispute.
[2] The
applicant seeks an order setting aside the award and in his notice of
motion sought an order setting aside the award and
referring the
matter back to the bargaining council (“the first respondent”)
for arbitration to be conducted by an
arbitrator other than the
second respondent.
The Material Facts
[3] The issue
for determination is a very narrow one. The dispute between the
parties relates to a provision in a collective agreement
which
specifies certain procedures to be followed by a party referring a
dispute of right (including one relating to an unfair
dismissal) for
arbitration before the bargaining council.
[4] It
is common cause that on the 13
th
October 2010 and after the conducting of a disciplinary hearing which
lasted several days the applicant was dismissed by the third
respondent for serious misconduct. It appears from the record that
despite the dismissal on that day the dismissal was only confirmed
by
the third respondent’s Provincial Commissioner on the 18
th
November
[1809] EngR 385
;
2010.
1
Act 66
of 1995 (the LRA)
[5] The facts
relating to the fairness or otherwise of the dismissal are not
relevant for the purposes of this review.
[6] By way of
a pre-arbitration agreement entered into between the applicant’s
legal representatives and the third respondent’s
in house legal
representative the parties agreed that the second respondent would be
called upon to decide two issues, namely (i)
whether an appeal was
lodged to the third respondent’s appeal authorities, following
the applicant’s dismissal in October
2010 and (ii) if it was
not lodged, whether the first respondent assumed jurisdiction to
entertain the matter.
[7] Evidence
was led by the parties in respect to the first question and argument
was addressed to the arbitrator in respect of
the second question.
The
third respondent’s case at the arbitration as to whether an
appeal was lodged
.
[8] The third
respondent led two witnesses to show that the applicant did not lodge
an appeal as provided for in the SAPS Disciplinary
Regulations which
specified that an aggrieved employee was to lodge an appeal within
ten (10) days of being aware of the decision
to dismiss.
[9] One of the
witnesses that were called by the third respondent was one Constable
S Khoza (“Khoza”) an official with
POPCRU, the
applicant’s trade union, who represented the applicant at the
latter stages of the disciplinary hearing.
[10]
Khoza’s evidence was to the effect that:-
10.1
Despite advising the applicant immediately after him being advised of
the dismissal that he had the right
of appeal the applicant appeared
singularly disinterested in doing so advising Khoza that “the
people he was going to drive
with were in a hurry to leave.”
10.2
Khoza heard nothing from the applicant until he much later received a
telephone call from the applicant’s
wife who enquired whether
he had received a call from someone from the Magistrates Court’s
Maintenance Office enquiring into
the applicant’s dismissal.
Khoza advised the applicant’s wife that he had not received a
call and that he had not seen
the letter of confirmation dealing with
the applicant’s dismissal.
10.3
Khoza was later contacted by a Mr Shangase, an attorney, who enquired
as to whether an appeal was lodged
by him and when he stated that he
had not done so Khoza avers that Mr Shangase suggested to him that
he, Khoza, should state that
he had lodged an appeal and that it had
got lost in provincial office. Khoza refused to accede to this
request.
10.4
The upshot of Khoza’s evidence was that he had been a trade
union representative since 2008, had assisted
many employees in their
disciplinary hearings and appeals, that the applicant would have been
required to sign an appeal form and
that the applicant neither signed
an appeal form nor instructed him to lodge an appeal.
[11] The
second witness called by the third respondent was Captain E. Singh
who worked in the Provincial Discipline Unit and was
responsible to
closely monitor disciplinary cases including the receipt of appeals
whereupon a file would be opened and an appeal
tribunal convened.
[12]
Singh’s evidence was to the effect that:-
12.1
He had issued a letter on the 25
th
November 2010
confirming that the applicant had lodged an appeal and that the
applicant was to continue to receive salary pending
the outcome of
the appeal.
12.2
He explained however, that he had made an error in that when he had
received the information that the applicant
had been dismissed he
assumed, wrongly, that the applicant had appealed. The situation was
later rectified when he realized his
error and a further letter was
sent out on the 7
th
November 2011 advising that the
applicant had not appealed.
[13] The
gravamen of Singh’s evidence was that the first letter
confirming that an appeal was lodged was sent out in error
and that
to his knowledge no appeal had been lodged by or on behalf of the
applicant.
[14] It
appears from the record that these witnesses were not taxed at all
under cross examination.
The
applicant’s case at the arbitration as to whether an appeal was
lodged.
[15]
The applicant gave evidence which can be summarized as follows:
15.1
Khoza had represented the applicant for at least two days of the
disciplinary hearing but that he was confused
as to which part of
these proceedings this was as Khoza was speaking in legal terms to
the chairperson.
15.2
The applicant was adamant, however, that Khoza was not present when
the dismissal was announced to him.
15.3
The applicant telephoned Khoza after the dismissal and was advised by
Khoza that he was not to worry and
that an appeal had to be made,
that the appeal was usually within ten days and that he would lodge
the appeal on the applicant’s
behalf.
15.4
The applicant admits that he did not follow up with Khoza and that it
was only after his pay stopped that
the applicant started making
enquiries with the third respondent as to what had transpired.
15.5
In following up the matter the applicant received the letter of
November 2010 advising him that an appeal
had been lodged and that
his pay should continue.
15.6
The applicant advises that despite this letter his pay had stopped
and that was when he contacted Khoza to
get his pay reinstated and on
this occasion that the applicant alleges he was advised by Khoza that
he was awaiting the outcome
of the appeal.
15.7
When the applicant received the letter in November 2011
countermanding the first letter and advising that
an appeal had not
been lodged he was shocked and that was when the applicant decided to
lodge a dispute with the first respondent.
15.8
Strangely and despite the events preceding the lodgement, the dispute
that was lodged on the 31
st
January 2012 was in respect of
a dispute relating to incapacity issue and was lodged on the
applicant’s behalf by a Ms. Gama,
the applicant’s friend.
[16] The
second witness that was called by the applicant was the applicant’s
wife, Ms. K Mazibuko.
[17]
Mazibuko’s evidence related to the apparent exchanges with
Khoza over the telephone in connection with a maintenance
hearing at
the Magistrates Court and in essence this had little or no probative
value.
[18] Both
parties then proceeded to address the second respondent on the
provisions of the first respondent’s constitution
in respect of
which it appeared that the parties were
ad idem
constituted a
collective agreement.
The
third respondent’s position with regard to the issue of law,
“the exhausting of internal remedies
.”
[19]
The third respondent’s argument was as follows:-
19.1
The SSSBC collective agreement was binding on the parties.
19.2
The wording in the dispute resolution provisions state categorically
that employees must exhaust their internal
remedies before lodging a
dispute.
19.3
The relevant wording in clause 3.2 of the schedule to the
constitution was peremptory.
The
applicant’s position with regard the issue of law “the
exhausting of internal remedies.”
[20] The
applicant’s argument in contradistinction was that neither the
LRA or the collective agreement made it peremptory
for the applicant
to first lodge an appeal before referring a dispute to the bargaining
council and that the collective agreement
only provided guidelines
which were not binding on the parties.
The award
The
question of whether an appeal was lodged
.
[21]
The arbitrator found that:-
21.1
The evidence showed that the applicant had no knowledge as to whether
in fact an appeal was lodged. There
was no evidence led by the
applicant that he had met with Khoza to traverse the grounds of the
appeal or to sign a notice of appeal.
21.2
Khoza was a good witness and that his evidence was to the effect that
he had not lodged an appeal and that
without the applicant’s
signature to the notice he could not advance the appeal himself.
Khoza testified that the Applicant
did not seem interested in
appealing.
21.3
As a member of the trade union POPCRU and representing the applicant
there was no rational reason for Khoza
to lie and turn his back on
the applicant to give evidence to the effect that he not lodged the
appeal when he had.
21.4
The explanation given by Captain Singh as to the error in writing the
first letter confirming that the applicant
had filed an appeal was
accepted. There was no rational reason for Captain Singh to lie about
the receipt of an appeal.
21.5
As a consequence, the arbitrator found that it was overwhelmingly
improbable that an appeal was lodged.
The
question of the issue of law “the exhausting of internal
remedies
.”
[22]
The arbitrator found that:-
22.1
There was no doubt that the collective agreement was binding on the
parties. Section 31 read with section
32 of the LRA specifically
provides that a collective agreement binds the parties to the
bargaining council and by extension non-parties.
22.2
Clause 2 of Schedule 8 to the LRA recognizes the primacy of a
collective agreement and that the Code is not
intended as a
substitute to disciplinary codes and procedures that are the subject
of collective agreements.
22.3
Clause 3.2 read with clause 1.5 (b) and (c) of the collective
agreement uses mandatory language which obliged
the applicant to
exhaust his internal remedies by way of the appeal before proceeding
further.
[23] The
arbitrator found in essence therefore that the applicant was bound to
lodge an appeal before proceeding with his referral
to the bargaining
council.
The
applicants’ case in the review
[24] The
applicant’s complaint is that the award is not one a reasonable
arbitrator would make in that:-
24.1
A reasonable decision maker would not have solely relied on the
binding effect of a collective agreement
when there are authorities
which allow a departure from a collective agreement.
24.2
There exists a dichotomy between the Code of Good Practice: Dismissal
contained in Schedule to the LRA and
the collective agreement where
the Code does not prescribe that an appeal must be lodged prior to a
disputant exercising his or
her right to refer a dismissal dispute to
arbitration and that accordingly the LRA should take precedence.
24.3
The second respondent should not have adopted a stringent and
legalistic approach on a technical point and
that for considerations
of fairness he ought to have dismissed the point
in limine.
[25] In its
supplementary heads the applicant raised for the first time the issue
that clause 1.5 (c) of the collective agreement
has an added
provision, which had to be given effect to and which reads:
“
Or
the time period as stipulated in the relevant prescripts has lapsed.”
[26] The
applicant argue that this provision makes it clear that it is not
peremptory for the applicant to have lodged a notice
of appeal before
proceeding to arbitration before the first respondent and that the
second respondent should have had regard to
the entire provision of
clause 1.5 (c) before making his decision.
[27] It is
apposite to note that in his founding affidavit the applicant does
not attack the arbitrator’s finding that no
appeal was lodged
and I submit correctly so as will become apparent in my analysis of
the matter hereunder.
The third
respondent’s case in the review
[28]
In contrast to the applicant’s view, the third respondent
claims that:-
28.1
The collective agreement was binding on the parties.
28.2
The provisions relating to the procedure to be followed in
disciplinary matters were peremptory.
28.3
The second respondent was correct in confirming this in his award and
that the applicant’s legal submissions
with regard to the
unreasonableness of the award are unfounded and bad in law.
[29] The third
respondent denies that the award is not one a reasonable arbitrator
would not make.
Analysis
and Evaluation
The
finding in respect of the lodging of an appeal
.
[30]
The applicant correctly in my view does not challenge the
arbitrator’s finding on the question as to whether an appeal
was lodged.
[31]
The third respondent’s witnesses gave evidence in a cogent and
clear manner. They were not taxed at all under cross examination.
[32]
On the other hand, the applicant was confused and unclear as to what
transpired at the disciplinary hearing and certainly in
connection
with what transpired thereafter in relation to the noting of an
appeal.
[33]
On the evidence before him the arbitrator correctly found that the
probabilities clearly favoured the third respondent’s
version
and accordingly the arbitrator’s finding that no appeal had
been lodged was more than reasonable.
The
question of the
issue
of law “the exhausting of internal remedies relates to a matter
con
cerning
jurisdiction
[34]
What was the nature of the issue of law debated at the arbitration?
[35]
It is evident from the Dispute Procedure contained in schedule 1 of
the collective agreement that:-
35.1
the procedure applied to all disputes between parties and non-parties
to the bargaining council [Clause 1.1];
35.2
the procedure applies to all disputes including disputes with
reference to unfair dismissal or disciplinary measures short
of
dismissal, after the internal appeals procedure has been exhausted,
or the time period as stipulated in the relevant prescripts
has
lapsed [Clause 1.5 (c)];
35.3
prior to any dispute of right being referred to the Council, the
aggrieved employee must have exhausted all internal procedures
as set
out in clause 1.5 (b) and (c) above [Clause 3.2];
35.4
if a party intends raising a jurisdictional point a statement wherein
the jurisdictional is raised must be served on the opposing
party
[Clause 3.5.1 (e)];
35.5
if during the arbitration proceedings a jurisdictional issue has not
been determined, the panellist must require the parties
to prove that
the Council has jurisdiction to arbitrate the dispute [Clause 3.5.1
(k)].
[36]
In the pre-arbitration minute filed of record the parties agreed that
the application of Clause 1.5 (c) read with Clause 3.2
related to a
question of jurisdiction
2
.
[37]
In order for the arbitrator to be able to proceed with the dispute,
the agreed procedure contained in the collective agreement
enjoined
him to determine whether by virtue of the provisions of Clause 1.5
(c) read with Clause 3.2 he was entitled to do so.
2
p.62
at para 2.1 of the record bundle
[38]
Having regard to the above considerations and despite the view that
the provisions of above Clauses are more akin to a procedural
bar by
applying a common sense approach I am of the view that the question
of law raised
in limine
at the arbitration in this matter
nevertheless relates to a question of jurisdiction.
[39]
The meaning of
‘jurisdiction’ was set out in
Graaff-Reinet
Municipality v Ryneveld's Pass Irrigation Board
3
wherein the
court held that:
‘
Jurisdiction
means the power or competence of a court, to hear and determine an
issue between parties, and limitations may be put
upon such power in
relation to territory, subject matter, amount in dispute, parties,
etc…..The best way in which a statute
can indicate the
jurisdiction of a court, is by stating categories of persons in
respect of which it has jurisdiction, the geographical
area in which
such a court has jurisdiction and finally but very importantly, the
matter such a court may entertain and deal with’.
[40]
It is trite law
that institutions such as the CCMA and bargaining councils are
creatures of statute and are not Courts of law. As
a general rule,
they cannot decide their own jurisdiction.
[41] In
SA Rugby Players
Association and others v SA Rugby (Pty) Ltd and others
4
,
the Labour Appeal Court stated as follows:
‘
The
issue that was before the commissioner was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction
of the
CCMA. The significance of establishing whether there was a dismissal
or not is to determine whether the CCMA had jurisdiction
to entertain
the dispute. It follows that if there was no dismissal, then the CCMA
had no jurisdiction to entertain the dispute
in terms of s 191 of the
Act’.
3
1950 (2) SA 420
(AD) at
p.424
4
(2008)
29 ILJ 2218 (LAC) paras 39 to 40
[42] In
SA Commercial
Catering and Allied Workers Union v Speciality Stores Ltd
5
it was held that:
‘
Generally
speaking a superior Court always has the power to determine whether
the preconditions for the exercise of a statutory
power to act have
been met 'even in the absence of any statutorily provided remedy by
way of an appeal or review' (per Marais JA
in Minister of Public
Works v Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
(A) at 751G . Where the
precondition is an objective fact or a question of law, its
existence is objectively justiciable in
a Court of law and if the
public authority made a wrong decision in this regard the decision
may be set aside on review
(Minister of
Public Works v Haffejee NO
at 751F-G;
Hira and another v Booysen and another
1992 (4) SA 69
(A) at 93A-B’.
[43]
The court concluded that
6
:
‘
Generally
speaking, a public authority is obliged to determine the scope of its
own powers before it can act (cf Baxter Administrative
Law at 452).
In doing so it cannot finally determine its competence, because if it
wrongly decided that it had jurisdiction, its
decision may be
reviewed on objectively justiciable grounds. This kind of
jurisdictional review does not depend on any statutorily
provided
remedy by way of appeal or review (Minister of Public Works v
Haffejee NO at 751G-H). But, as noted above (paragraph [23]),
the
determination of the existence of a jurisdictional precondition may
be left to the public authority itself to determine and
the nature
and extent of judicial review of its decision will then depend on
whether the determination was left to its subjective
discretion in
terms of the empowering statute, or whether the determination had to
be made on objective grounds’.
5
(1998) 19 ILJ 557 (LAC) at para
24, [also reported at
[1996] ZASCA 17
;
[1996] 4 All SA 355
(A);
[1997] JOL 256
(A) –
Ed])
6
id at para 28
[44] In
Zeuna-Starker Bop (Pty) Ltd v National Union of Metalworkers of
SA
7
, it was said:
‘…
The
commissioner could not finally decide whether he had jurisdiction
because if he made a wrong decision, his decision could be
reviewed
by the Labour Court on objectively justiciable grounds…’.
The relevant review test
[45] Snyman AJ
in the matter
Twoline Trading 413 (Pty) Ltd t/a Skosana Contract
Labour v Abraham Mongatane and Others
8
dealing with a jurisdictional issue held:
‘
The
issue as to whether a dismissal exists is a jurisdictional fact. If
there is no dismissal, then the CCMA will have no jurisdiction
to
determine the matter. Because of this, the review test as enunciated
in
Sidumo and another v Rustenburg
Platinum Mines Ltd and others
does not
apply…’
[46] In
the Labour Appeal Court in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration
9
and Others
specifically
interpreted the review test as determined in
Sidumo
and held as follows:
‘
Nothing
said in
Sidumo,
means
that the grounds of review in section 145 of the Act are obliterated
The Constitutional Court said that they are suffused
by
reasonableness. Nothing said in
Sidumo
means that the CCMA's arbitration award can no longer be reviewed on
the grounds, for example, that the CCMA had no jurisdiction
in a
matter or any of the other grounds specified in section 145 of the
Act. If the CCMA had no jurisdiction in a matter, the question
of the
reasonableness of its decision would not arise...’
7
(1999) 20 ILJ 108 (LAC) at para 6:
See too Global Outdoor Systems Ltd V Du Toit (2011) 32 ILJ1100 at
para 18 and MECS Africa (Pty)
Ltd v CCMA & Others (2014) 35 ILJ
745 (LC) at para 25 to 26
8
[2014] JOL 31668
(LC) at paras
[24] to [29]; see too Kusokhanya Electrical Constructions CC v Themba
Hlatswayo N.O.& Others
ZALCJHB
227 (16 September 2013) at paras [9] to [12]
9
(2008) 29
ILJ
964 (LAC) at para 101
[47] In
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen
and Others,
10
the court held:
‘
Anomalous
as this may seem, I am bound by the authority in
SA
Rugby
. This court also applied
SA
Rugby in Member of the Executive Council, Department of Health,
Eastern Cape v Odendaal & others
.
In that case, dealing with a constructive dismissal, Basson J
explicitly held that the question of whether a dismissal had taken
place goes to jurisdiction and that the review test as laid down in
Sidumo
does
not find application in reviewing a jurisdictional ruling. The test I
have to apply, therefore, is not whether the conclusion
reached by
the commissioner was so unreasonable that no commissioner could have
come to the same conclusion, as set out in
Sidumo
,
but whether the commissioner correctly found that Van Rooyen had been
dismissed’.
[48]
Simply put in a matter of jurisdiction the test for review is one in
which the question that is asked is whether the arbitrator
was right
or wrong in making that decision as opposed to test of reasonableness
as set out in
Sidumo.
[49]
Accordingly, I must decide whether the arbitrator in holding that the
failure to lodge an internal appeal precluded the applicant
from
proceeding with the referral was right or wrong. Snyman J in the
Kusokhanya Electrical
matter suggests that I am enjoined to
consider the issue
de novo
and I see no reason to deviate from
that guidance.
[50]
Having come to the conclusion that I have, it is nevertheless common
cause that this matter was argued on the basis of the
reasonableness
test set out in
Sidumo
.
[51]
What has occupied my mind is whether a distinction can be drawn
within the concept of jurisdiction as to whether an issue of
jurisdiction can be divided into those issues governed by the
application of substantive law and those issues which relate to a
simple procedural bar to which the parties are bound in terms of an
agreement such as a collective agreement and whether that
10
(2012)
33 ILJ 363 (LC) at paras 22-23
distinction
would dictate which review test to apply. The notion would be that
for substantive jurisdiction issues the test would
be whether the
decision was right or wrong whereas for a procedural bar issue the
test would be whether the decision was reasonable.
[52]
The concept of distinguishing between substantive and procedural
jurisdictional issues is not novel. In the matter of
Sekunjalo
Investments Ltd v Mehta and Others
11
the Court
held:
‘
The
other approach is found in the view that the bar to raising a
jurisdictional point is limited only to where the conciliating
commissioner in issuing the certificate had discretion to exercise
over any jurisdictional point that may have been in existence,
like
granting condonation as was the case in
Fidelity
Guards
. Thus in my view the approach
adopted in
Fidelity Guards
applies in instances involving what I would refer to as
procedural
jurisdictional points
. The issue raised
by the applicant concerns the
substantive
issue
of whether or not there existed
an employment relationship between it and the first respondent. Thus
the jurisdictional point raised
in this matter is different to the
one which was raised in
Fidelity Guards
,
(
supra
)’.
[53]
In an analogous situation relating to prescription/limitation
statutes in the matter
Society of Lloyd’s v Price: Society
of Lloyd’s v Price
12
the Supreme
Court of Appeal held:
‘
A distinction
has traditionally been drawn, in both South African and English law,
between two kinds of prescription/limitation
statutes: those which
extinguish a right, on the one hand, and those which merely “bar”
a remedy by imposing a procedural
bar on the institution of an action
to enforce the right or to take steps in execution pursuant to a
judgment, on the other. Statutes
of the former kind are regarded as
substantive in nature, while statutes of the latter kind are regarded
as procedural’
.
[54] It
would appear to be correct therefore to hold that the issues of
jurisdiction in the above cases namely
SA
Rugby Players Association, SA Commercial
11
[2010] ZALCJHB 25 at paras 15 and
17
12
2006 (5)
SA 393
(SCA) at para 10
Catering
and Allied Workers Union, Zeuna-Starker Bop (Pty) Ltd and Asara Wine
Estate and Hotel (Pty) Ltd
related
to the application of substantive law and that the issue of
jurisdiction in these cases was not adjectival in nature.
[55]
Having regard to the cases above and applying the principles
enunciated there from I am of the view that the jurisdictional
issue
contained in Clause 3.2 read with Clause 1.5 (c) is distinguishable
from the statutory precepts one encounters in the LRA
which relate to
jurisdiction and which are substantive in nature.
[56] In all of
the instances above non-compliance ousts the jurisdiction of either
the CCMA, bargaining council or the Court.
[57] I am of
the view therefore that the jurisdictional issue in Clause 3.2 read
with Clause 1.5(c) ‘merely constitutes a
bar to a remedy’
and is akin to the imposition of ‘a procedural bar on the
institution of an action to enforce the
right’ as enunciated in
the case of
Society of Lloyds ibid
.
[58] The
effect of having to exhaust internal remedies as provided for in the
above provisions does not extinguish the applicant’s
right to
proceed to the bargaining council to determine the alleged unfair
dismissal, it simply required the applicant to take
a compulsory
procedural step before doing so.
[59] In
section 191 (10) of the LRA an example of a procedural bar is
encountered. When dealing with the powers of the director
of the CCMA
to decide upon whether a dispute should be referred to the Labour
Court for adjudication or arbitration no person may
apply to any
court of law to review this decision until such time as the matter
may be adjudicated upon or arbitrated. In the matter
of
MTN (Pty)
Limited vs Pravin Pragraj and Another
13
the
Labour Appeal Court found that this section did not fall into the
category of ouster clauses proper but that:
‘
In
my view s 191 (10) does not fall within this description, it merely
prescribes the procedure which has to be followed’.
13
[2002] ZALAC 2
(1 Feb 2002) at
para 5
[60] In
essence the award handed down by the arbitrator did not and does not
extinguish the applicant’s right to file an appeal
(obviously
with the requisite application for condonation)
14
against his dismissal and then proceed to lodge his
referral to the bargaining council. Whereas the applicant’s
prospects
of success at first blush appear doubtful, the merits of
the condonation would have to be determined by the third respondent’s
appeal tribunal.
[61]
Having established that despite the fact that the Courts have
distinguished between substantive and procedural issues of
jurisdiction
there does not appear to be any cases ( which I have
found) which hold that the test for review should be different from
the test
enunciated in cases
SA
Rugby Players Association, SA Commercial Catering and Allied Workers
Union, Zeuna-Starker Bop (Pty) Ltd and Asara Wine Estate
and Hotel
(Pty) Ltd.
Accordingly,
I will proceed to deal this matter under the question as to whether
the arbitrator’s decision was right or wrong.
Was
the arbitrator’s decision right or wrong?
[62]
Applying the test, I am of the view that the arbitrator was right in
coming to the decision he did. I say so for the reasons
that follow
hereunder.
[63]
The SSSBC collective agreement bound the parties to the said
agreement including the applicant and the collective agreement
has
primacy
15
.
[64]
The duty to exhaust internal remedies before proceeding to
determination of a dispute or cause of action is well settled in
our
law.
[65]
In the matter of
Koyabe
and Others v Minister of Home Affairs and Others,
16
the Constitutional
Court in dealing with the requirement to exhaust internal remedies as
provided by the Promotion of Administration
Act 3 of 2000 (“PAJA”)
held:
14
Regulation 17(5) of the SAPS
Disciplinary Regulations of 2006 published under R643 in GG 28985 on
the 3
rd
July 2006
15
Sections 31, 32 and Item 1 (2) of
Schedule 8 of the LRA
16
2010 (4) SA 327
(CC) at paras [38]
to [39]
‘
T
he
duty to exhaust internal remedies is therefore a valuable and
necessary requirement in our law. However, that requirement should
not be rigidly imposed. Nor should it be used by administrators to
frustrate the efforts of an aggrieved person or to shield the
administrative process from judicial scrutiny.
PAJA
recognises this need for flexibility, acknowledging in section 7(2)
(c) that exceptional circumstances may require that a court
condone
non-exhaustion of the internal process and proceed with judicial
review nonetheless. Under section 7(2) of PAJA, the requirement
that
an individual exhaust internal remedies is therefore not absolute.
What constitutes exceptional circumstances depends on the
facts and
circumstances of the case and the nature of the administrative action
at issue…’
[66]
In the matter of
Dengetenge Holdings (Pty) Limited v Southern
Sphere Mining and Development Company Limited and Others
17
the Constitutional Court held:
‘
Section
96(3) and section 7 of PAJA are framed in peremptory terms, which is
an indication, in my view, that their requirements
should be
observed, except in circumstances where an exemption is granted. With
regard to section 7 of PAJA, Hoexter says: “These
are stringent
provisions cast in peremptory language. Review is prohibited unless
any internal remedy provided for in any other
law has been exhausted.
The court is obliged to turn the applicant away if it is not
satisfied that internal remedies have been
exhausted, and may grant
exemption from the duty only in exceptional circumstances where it is
in the interests of justice to do
so’.
[67]
In the matter of
Nichol
and Another v Registrar of Pension Funds and Others
18
the Supreme Court of Appeal held:
‘
Under the
common law, the mere existence of an internal remedy was not, by
itself, sufficient to defer access to judicial review
until the
remedy had been exhausted. Judicial review would in general only be
deferred where the relevant statutory or contractual
provision,
properly construed, required that the internal remedies first be
exhausted. However, as is pointed out by Iain Currie
and Jonathan
Klaaren, ‘by imposing a strict duty to exhaust domestic
17
2014 (5) SA
138
(CC) at para [132]
18
2008 (1) SA
383
(SCA) at para [15]
remedies,
[PAJA] has considerably reformed the common law’. It is now
compulsory for the aggrieved party in all cases to exhaust
the
relevant internal remedies unless exempted from doing so by way of a
successful application under s 7(2)(c).
Moreover, the
person seeking exemption must satisfy the court of two matters:
first, that there are exceptional circumstances and
second, that it
is in the interest of justice that the exemption be given’.
[68]
In the matter of
Kgotso v Free State Provincial Government and
Another
19
Francis J as he then was held:
‘
In
keeping with these provisions, annexure A to the constitution of the
Bargaining Council provides special machinery for dispute
resolution
within a specialist forum. This procedures are designed to be
expeditious and inexpensive. They form part of a collective
agreement
deliberately entered into between parties to the Bargaining Council.
In the matter of
IMATU v Northern
Pretoria Metropolitan Substructure and Others
1999 (2) SA 234
(T) the court examined comprehensively the status of
the agreements and procedures of this kind. The court conducted a
careful
analysis of the position’ at common law of a private
arbitration agreement and held inter alia, that the creation by the
Legislature of specialist dispute resolution for a created a system
that was all embracing and left no room for intervention of
another
court. There are a number of Labour Court decisions that indicate
that the dispute resolution procedures of the Bargaining
Council
should be followed. In this regard see
Dladla
V MEC for Gauteng Department of Education
[2001] 9 BLLR 1051
(LC); Koka v Director General: Provincial
Administration, North West Government
[1997] 7 BLLR 874
(LC). I align
myself with the abovementioned decisions’.
[69]
The Applicant relied on the decision of
Highveld
District Council v CCMA and Others,
20
in an attempt to
persuade me that the collective agreement is
19
[2006]
7 BLLR 664
(LC) At paras 18-20 ( see also
Mgijima
v Eastern Cape Appropriate Technology Unit & A
2000(2)
SA 291 (Tk) at 302G-H;
Ampofo
& Others v MEC for Education, Arts, Culture, Sports and
Recreation, Northern Province & Another
2002 (2) SA 215
(T) at paragraph [46]).
20
(2002)
12 BLLR 1158
(LAC)
merely
a guide to the dispute resolution process and that a deviation
therefrom was permissible especially where such agreed process
is
unfair.
[70]
I decline the applicant’s invitation. Firstly the Labour Appeal
Court in the
Highveld District Council
matter dealt with the
issue of whether an agreed collective agreement procedure was fair or
not, which is not germane to the issue
in dispute in this matter and
secondly it has never been the applicant’s case that the
requirement to exhaust an internal
procedure was unfair.
[71]
I find therefore, there exist no exceptional circumstances in this
matter to hold that the parties to the collective agreement
are not
bound thereby. There is a specific purpose to parties agreeing
internal procedures which are designed to be expeditious
and
inexpensive. To regard the internal procedures contained in the SSSBC
collective agreement as merely being a guideline would
not be in the
correct nor in the interests of justice. I accordingly, find that the
applicant was obliged to exhaust his internal
remedy of an appeal
before launching proceedings before the bargaining council.
[72]
It is necessary to deal with the ground raised by the applicant in
its heads of argument for the first time, namely that the
second
respondent failed to have regard to the entire provision of Clause
1.5 (c) which contains a further sentence which reads,
‘
or
the time period as stipulated in the relevant prescripts has lapsed’.
[73]
I need to decide
whether
the applicant should be permitted to raise this issue which was not
raised or argued at the arbitration and not raised in
the applicant’s
founding or replying affidavits but raised for the first time in the
applicant’s supplementary heads
of argument.
[74]
I believe that in deciding this issue, I have a discretion to allow
this ground of review which discretion I must exercise
judicially
taking into consideration all the circumstances in this matter.
[75]
In the case of
SA Police Service v Solidarity obo Barnard and
Others
21
the Constitutional Court
referred, with approval, to the judgment in the matter of
Fischer
v Ramahlele
22
where the Supreme Court of
Appeal held:
‘
Turning
then to the nature of civil litigation in our adversarial system it
is for the parties, either in the pleadings or affidavits,
which
serve the function of both pleadings and evidence, to set out and
define the nature of their dispute and it is for the court
to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights guaranteed
by
our Constitution, for ‘(i) it is impermissible for a party to
rely on a constitutional complaint that was not pleaded’.
There
are cases where the parties may expand those issues by the way in
which they conduct proceedings…’
[76]
The Constitutional Court went on to add:
23
‘
Allowing
a party to raise a new cause of action on appeal is a matter of
discretion. The court of appeal may exercise its discretion
to permit
a party to do so if it will not be unfair to the other parties.
Permission will ordinarily be granted where the cause
of action was
foreshadowed by the pleadings and established by facts on record.
This is not the position here.
The
pleadings did not cover the review of the National Commissioner’s
decision on the grounds that he failed to take into
account Ms
Barnard’s personal circumstances or that the reasons given for
the decision were insufficient. This matter was
also not canvassed
fully in evidence because Ms Barnard had pursued an equality claim
and not the review of the impugned decision.
On what basis then may this Court allow her to
raise a different and new cause of action? I am unable to find any.
In
Barkhuizen
, this Court affirmed the principle of fairness
on the exercise of discretion. Here is the formulation of the
principle:
21
(2014)
35 ILJ 2981 (CC) at para 210
22
2014
(4) SA 614
(SCA) at para 13.
23
SA
Police Service v Solidarity id at para [213] to [214]
‘
The
mere fact that a point of law is raised for the first time on appeal
is not in itself sufficient reason for refusing to consider
it. If
the point is covered by the pleadings, and if its consideration on
appeal involves no unfairness to the other party against
whom it is
directed, this Court may in the exercise of its discretion consider
the point. Unfairness may arise where, for example,
a party would not
have agreed on material facts, or on only those facts stated in the
agreed statement of facts had the party been
aware that there were
other legal issues involved. It would similarly be unfair to the
other party if the law point and all its
ramifications were not
canvassed and investigated at trial’.
[77]
It is
self-evident from the material before me, including the record and
the pre-arbitration minute, that the issue regarding the
meaning of
the relevant sentence that the applicant now seeks to introduce, was
not within the contemplation of either of the parties
at the time,
was not an issue in dispute and was not an issue that the arbitrator
was called upon to determine.
[78] It is
clear that the third respondent did not have an opportunity to
respond to the averments in this regard and did not even
file
supplementary heads dealing with this aspect. Mr. Molotsi tried to
convince me from the bar that when the matter appeared
before this
Court on the 11
th
July 2014, the matter was adjourned
sine
die
due to this issue being raised at that stage.
[79] I do not
see how this information, even if I was to accept the same from the
bar, assists the applicant. If the issue was germane
at that stage
why did the applicant not simply file a supplementary affidavit
instead of only raising the issue in supplementary
heads which were
filed as late as the 1
st
October 2014? It remains an
inescapable fact that this new cause has not been pleaded at all or
indeed even responded to.
[80] Mr.
Molotsi, to his credit, nevertheless tried to argue that the
arbitrator was obliged, in the discharge of his duties, to
have
regard to the whole collective agreement and that the arbitrator
committed an irregularity in not doing so. I disagree.
[81]
In the matter of
Yao Ying Metal Industries (Pty) Limited v Pooe NO
and others
24
the Supreme Court of Appeal
opined:
‘
The task of an arbitrator is a demanding
one. It is made more demanding by the absence of formality that
characterises the resolution
of labour disputes. It is important that
an arbitrator, notwithstanding the absence of formality, ensures at
the outset that the
ambit of the dispute has been properly
circumscribed, even if the dispute has many facets, for that defines
the authority that
the arbitrator has to make an award. The authority
of an arbitrator
is confined to
resolving the dispute that has been submitted for resolution and an
award that falls outside that authority will
be invalid
.
[my emphasis] As pointed out by Mustill and Boyd in the context of
commercial arbitration (but the principle is equally applicable
to
labour arbitrations):’If (an arbitrator) awards on issues which
have not been left to him for decision, he commits misconduct
and may
also be acting in excess of jurisdiction’.
[82]
The Supreme Court of Appeal
25
went on to
add:
‘
The
same point was made in Produce Brokers (cited with approval in
McKenzie):
‘
The
binding force of an award must depend in every case on the
submission. If the question which the arbitrator takes upon himself
to decide is not in fact within the submission, the award is a
nullity. The arbitrator cannot make his award binding by holding
contrary to the true facts that the question which he affects to
determine is within the submission’.
An
award may also not be founded on matters that occur to the arbitrator
but that the parties have had no opportunity to address.
That is
simply an application of the principles of natural justice, and in
particular the right to be heard, that are now formalised
in the
Promotion of Administrative Justice Act 3 of 2000
.
’
24
[2007] 3 All SA 329
(SCA) at paras
[5]. I am aware that this matter was overturned in the Constitutional
Court however the principles enunciated above
do not appear to have
been disturbed by the Constitutional Court. See (2008) 29 ILJ
2461 (CC)
25
Id at para [6]
[83]
In
NUMSA v Driveline
Technologies
(
Pty
)
Ltd and Another
[2000]
26
Zondo AJP as he
then was and after a review of all the authorities, stated that as a
point of departure, it should be accepted that
courts would
ordinarily hold litigants to a pre-trial agreement recorded in a
pre-trial minute or issues therein.
[84]
Zondo AJP further held that if a party wished to introduce another
defence to the one pleaded, that party would usually be
required to
apply for an amendment first. The other party would then consider
such amendment in due course and decide whether to
oppose it or not.
There might even be cases where parties agree in a pre-trial minute
that a cause of action, for example, that
has not been covered by the
pleadings cannot be introduced later even by way of amendment.
[85]
In the matter
Filta-Matix
(
Pty
)
Ltd v Freudewberg
and Others
27
(
per
Harms JA (as he then
was) held:
‘
If
a party elects to limit the ambit of his case, the election is
usually binding’
.
[86] If one
has regard to the pre-arbitration minute one must come to the
conclusion that the terms of reference given to the arbitrator
appear
to be very limited, namely:
‘
Thus
the arbitrator is required to decide whether:-
(a) the appeal was indeed
lodged;
(b) if
it was not lodged whether the Council assumes jurisdiction to
entertain matter”
28
[87]
Thus the issues before the arbitrator were very narrow and limited.
The issue of the expiry of time limits, in as much as they
may be
relevant at all, was never traversed at the arbitration. It appears
to me to be opportunistic that the
26
[2000]
1BLLR 20 (LAC) at para 93 see too Price NO v Allied-JBS Building
Society1986 (3) SA 876 (A) at 882D–E; Chemfos Ltd
v
Plaasfosfaat (Pty) Ltd
1985 (3) SA 106
(A); Shoredis Construction
(Pty) Ltd v Pienaar NO and Others
[1995] 4 BLLR 32
(LAC); Checkers
Shoprite (Pty) Ltd v Busane (1996) 17 ILJ 701 (LAC)
27
[1997] ZASCA 110
;
1998
(1) SA 606
(SCA) at 613E–614D
28
para
2.4 on p.63 of the record
applicant
now complains about an issue that neither the applicant nor their
legal representatives had previously raised let alone
contemplated.
[88]
The applicant failed to raise the issue before the arbitrator and the
arbitrator did not have an opportunity to deal with it.
In my view
not only would it be prejudicial to the third respondent to have
regard to this new cause it would be wrong for this
Court to
pronounce on an issue which the arbitrator did not have an
opportunity to deal with.
[89]
There is another aspect which impacts on the prejudice in this
matter. The inclusion of the words “
or
the time period as stipulated in the relevant prescripts has lapsed
,
“given their
literal, ordinary and plain meaning creates such an absurdity to the
purposive intent gleaned from the meaning
of Clause 3.2 read with
Clause 1.5 (c) to bind parties to exhaust internal remedies that one
would be constrained not to disregard
these words in their entirety.
In the hearing of the review in this regard both Mr Molotsi and Mr.
Winfred agreed with this contention.
[90]
In the final analysis and in all the circumstances of this matter I
find that the arbitrator was correct when he found that
the applicant
was obliged to lodge his appeal before proceeding to the bargaining
council.
[91]
In the event that I am wrong in holding that an issue of procedural
jurisdiction does fall to be reviewed differently from
the above
analysis and that this Court is bound to review the arbitrator’s
award on the basis of reasonableness. I find that
the arbitrator did
not misconceive the nature of the hearing and that his decision was
one which falls within the
range
of decisions that a reasonable arbitrator would make.
30
29
Aviation
Union of SA vs SAA Airways (Pty) Limited
2010 (4) SA 604
(LAC) at
para [25] Zondo JP….”
you
do not depart from the ordinary meaning of a word in a statute unless
giving that word its ordinary meaning would result in
an absurdity…it
is permissible to depart from the ordinary meaning of a word or
provision in a statute where to give the
word or statutory provision
its literal or ordinary meaning would clearly defeat or undermine the
clear purpose of the statutory
provision concerned’.
See
too Aviation Union of SA vs SAA Airways (Pty) Limited (2011) 32 ILJ
2861 (CC).
30
Sidumo
vs Rustenburg Platinum Ltd
2008 (2) SA 24
CC; Andre Herholdt vs
Nedbank Limited (2013) 34 ILJ 2795 (SCA)
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others
(2014) 35 ILJ 943 (LAC) at para 21
[92]
In the
circumstances, the application for review falls to be dismissed.
Costs
[93] This
matter has had a long history stretching back to 2010. There is no
ongoing relationship between the parties in this matter.
Mr. Molotsi
advised from the bar that the applicant was unemployed. No evidence
of that fact, even if it were relevant to the determination
of the
issue of costs in this matter, was placed before me. There is in
consequence nothing to convince me to deviate from an order
that
costs should follow the result.
ORDER
I
make the following Order:
1. The
application for review is dismissed.
2. The
applicant is ordered to pay the third respondent’s costs.
PRIOR,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Mr. Molotsi from A.P.Shangase and Company Attorneys
For
the Respondent: Advocate Winfred instructed by the State Attorney