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[2015] ZALCD 12
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Khuzwayo and Others v Commission for Conciliation Mediation And Arbitration and Others (D621/11) [2015] ZALCD 12 (4 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D621/11
DATE: 04 FEBRUARY 2015
Not Reportable
In the matter between:
THEMBINKOSI
KHUZWAYO
................................................
First
Applicant
BHEKOKWAKHE
MAPHUMULO
.....................................
Second
Applicant
JULIUS E.T.
SIBEKO
..............................................................
Third
Applicant
And
COMMISSION FOR CONCILIATION
MEDIATION &
ARBITRATION
........................................
First
Respondent
COMMISSIONER C MUNKS
N.O
................................
Second
Respondent
SANITECH (PTY)
LTD
.....................................................
Third
Respondent
Heard: 3 February 2015
Delivered: 4 February 2015
Summary: Review of CCMA ruling:
review of rescission ruling; requirements for rescission
JUDGMENT
Whitcher J
[1] This is an application to review
and set aside a rescission ruling made by the Second Respondent on 3
June 2011 (“the
rescission ruling”).
Background facts
[2] In July 2010 the Third Respondent
carried out an investigation which allegedly implicated the
Applicants in the theft and selling
of the Third Respondent’s
products to members of the public.
[3] Following certain exchanges between
the Third Respondent and the Applicants regarding the investigation
report, the Applicants
resigned in writing in terms of which they
confirmed that they had been given an opportunity to attend a
disciplinary hearing,
but had chosen not to do so. These
resignations were concluded on 26 July 2010. I will return to the
alleged circumstances under
which the resignations took place.
[4] The Applicants referred a dispute
to the CCMA and on 16 September a con-arb was set down by the CCMA
under case reference KNDB
1024-10. A commissioner of the CCMA, one
Oliver, ruled that the Applicants and their Trade Union failed to
attend the con/arb hearing
and as a result thereof, the matter was
dismissed. The commissioner issued a written ruling in this regard.
The Applicants filed
three applications for rescissions in respect of
this ruling; on 20 October 2010, 20 January 2011 and 1 April 2011.
The last application
was drafted by their attorneys.
[5] On 3 June 2011, the Second
Respondent handed down a ruling pursuant to the hearing of the
application for rescission.
Applicable law to Rescission
Applications
[6] As indicated by the Third
Respondent, it is trite law that not only must a party provide a
reason as to their absence, good
cause is also a requirement for the
rescission of any arbitration award and by good cause, an Applicant
has to provide a reasonable
explanation for its absence, and a
reasonable prospect of succeeding in the main action (see Shoprite
Checkers (Pty) Ltd v CCMA
& Others (2007) 28 ILJ 2246 (LAC))
[7] Furthermore, the court in the
matter of Northern Training Trust v Maake (2006) 27 ILJ 828 (LAC)
stated that:
“The enquiry in an application
for the rescission of an Arbitration Award is consequently bipartite.
The first leg is one
which is concerned with whether or not the
Notice of Set Down was sent (for instance by fax or registered post).
Should evidence
show that the notice was sent, a probability is
then created that the notice sent was received. The second leg to the
enquiry is
one which concerns itself with the reasons proffered by
the Applicant who failed to attend the Arbitration proceedings. Such
Applicant
needs to prove that he or she was not wilful in defaulting,
that he or she has reasonable prospects of being successful with his
or her case, should the Award be set aside.”
[8] As indicated by the Third
Respondent, ultimately, in this matter the Court will have to come to
the conclusion that by the Second
Respondent dismissing the
Rescission application that this was a conclusion that a reasonable
decision maker could not reach.
Application of the law to the facts
Explanation for Default
[9] In my view the Third Respondent
demonstrated that the Applicants provided no reasonable explanation
for failing to attend the
arbitration proceedings and further
demonstrated that the Applicants were in wilful default.
[10] In this regard the Third
Respondent pointed out that with regards to the explanation provided
by the Applicants in the rescission
applications, Khuzwayo gave two
completely different and mutually destructive versions under oath.
[11] In one of the rescission
applications, Khuzwayo details his non-appearance as follows:
“There was even a hearing that
was held on 16 September 2010 which I did not know about that is why
I did not attend.”
[12] However, in the affidavit put up
as part of the third application for rescission, Khuzwayo claims:
(a) He knew of the date of the hearing
and that he, together with the second and third applicant attended
upon the offices of SAMWU,
meeting the Union Official, Chamane at
08:00am;
(b) Chamane was to represent the
Applicants at the Arbitration hearing;
(c) A process of preparing for the
Arbitration commenced;
(d) At 08.50am Khuzwayo asked Chamane
about the lateness of the matter, given it was due to be called at
09:00am to which Chamane
responded that as long as they were no
longer than 30 minutes late, the matter would not proceed;
(e) The three Applicants, in the
company of Chamane left the offices of SAMWU at 09:05am arriving at
the First Respondent at 09:20am,
where they were informed that their
matter had been called and dismissed due to non-appearance.
[13] The Third Respondent pointed out
further that no further submissions have ever been made as to why the
Applicants would not
have received the Notice of Set Down for 16
September 2010 hearing. As submitted by the Third Respondent, the
explanation provided
by Khuzwayo in the third rescission affidavit
would most certainly be proof of wilful default on the part of the
Applicants. The
notice of set down would have the specific time and
date for the hearing. It is not up to the Union official or the
Applicants
to decide that they may present themselves any later than
the advised start time.
[14] On the Applicants’ own
version, they were aware that the matter was to start at 09:00am and
purposefully did not present
themselves at that time. This is wilful
default.
[15] During the review hearing, the
Applicants’ legal representative tried to give an explanation
for the conflicting versions
deposed to by Khuzwayo, but these
allegations are not contained in any of the affidavits to the review
application, let alone the
rescission application.
The prospects of succeeding in the
main action
[16] The sum total of the Applicants’
allegations on prospects of success in their rescission applications
is that there was
no Disciplinary Hearing held and that the
misconduct did not warrant dismissal. On the other hand, the Third
Respondent, in their
answering affidavit to the rescission
application, alleged that the Applicants were not dismissed and
supported this contention
with signed resignations from the
Applicants. They alleged that when the Applicants were advised of
pending disciplinary action,
they elected to resign. The Applicants
did not dispute these allegations in any replying affidavits to the
rescission application.
[17] With this information before him,
the Second Respondent reasonably found that the Applicants’
prospects of success were
remote given that they had resigned
voluntarily in order to avoid a Disciplinary Enquiry, as set out in
the Third Respondent’s
answering affidavit and not denied in
any replying affidavit.
[18] The Applicants attempted in this
review application to provide a counter version to the Third
Respondent’s allegations
that they had resigned. They claimed
that they had resigned under duress from the Third Respondent.
However, in a review application,
the issue is what material was
before the Second Respondent at the time of the rescission
application.
[19] In all the circumstances set out
above, the final decision reached by the Second Respondent was a
reasonable one. There is
thus no basis to review and set aside the
rescission ruling by the Second Respondent.
[20] The Court accordingly makes the
following order:
1. The application to review and set
aside the ruling by the Second Respondent is dismissed.
2. There is no order as to costs.
Whitcher J
Judge of the Labour Court
APPEARANCES:
Applicant: V Ntlokwana from
Ntlokwana & Associates
Respondent: G M Kirby-Hirst from
MacGregor Erasmus Attorneys