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[2015] ZALCD 30
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SAMWU and Others v Uthungulu Municipality and Others (D1001/11) [2015] ZALCD 30 (28 May 2015)
REPUBLIC
OF SOUTH AFRICA
LABOUR
COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Not
Reportable
Case
no: D1001/11
In
the matter between:
SAMWU
First
Applicant
S
NXUMALO
Second
Applicant
V
MALINGA
Third
Applicant
and
UTHUNGULU
MUNICIPALITY
First
Respondent
SOUTH
AFRICAN LOCAL BARGAINING COUNCIL (SALGBC)
Second respondent
COMMISSIONER
N E DUBAZANE,
NO
Third
Respondent
Heard: 20 December
2013
Delivered:
28 May 2015
Summary:
Application to review, set aside and substitute arbitration award –
no reasonable arbitrator could have made a finding
that Second and
Third Respondents’ dismissal were substantively fair;
Condonation for the late filing of the review application
–
filed one year and 3 months late owing to inaction of First
Applicant’s erstwhile attorneys; Application to dismiss
review
application on basis that first day of evidence not available for
transcription – record incomplete. Application to
dismiss
dismissed; Application for Condonation granted; Review application
dismissed - Arbitration award fell within the band of
reasonableness
enunciated in the ‘
Sidumo
’
test for review.
JUDGMENT
ROCHER,
AJ
Introduction
[1] This is an
application to review, set aside and correct the Arbitration Award
handed down by the Third Respondent (“the
commissioner”)
on 7 August 2010 under case reference KPD110915 and substitute the
Award with one which reads that the dismissal
of the Second and Third
Applicants was substantively unfair and reinstating Second and Third
Applicants in their employment. The
review application is prefaced by
an application for condonation for the late filing thereof. The First
Respondent (“the
Municipality”) opposes the review
application and the condonation application. For good measure, the
Municipality has also
launched an application to dismiss the review
application, which is opposed by Applicants.
Background
[2] The Municipality is
established as such under section 12 of the Local Government:
Municipal Structures Act, 1998. The Second
and Third Applicants were
both employees (henceforth collectively referred to as (“the
employees”) of the Municipality
and shop stewards of the First
Applicant (henceforth referred to as “SAMWU”). The
employees were dismissed on 28 October
2009.
[3] After certain events
involving the handing over of a memorandum of grievances to the
Speaker of the Municipality’s Council
and other connected
matters, the employees were charged with various allegations of
misconduct.
[4] Because three
applications serve before this court, it is instructive at the outset
to gain an understanding of the allegations
and grounds upon which
the employees were dismissed.
[5] The allegations
levelled against the Second and Third Respondent read as follows:
‘
(1)
Acting in such a manner which is not in the best interest of the
municipality and acting
I such a way that the credibility and the
integrity of the municipality was compromised in view of the
following actions:
1.1
Leading an unlawful and / or unauthorised
procession of employees in a gathering or demonstration in public on
the 2oth March 2009;
and / or
1.2
Making statements and / or participating in the
making of statements to the media, in which statements or memorandum
contained false
and / or misleading information regarding the
municipality, on the 20
th
March 2009;
AND
/ OR
(2)
Insubordination and / or failure to comply with an agreed resolution
of the Local Labour
Forum in that she failed to refer queries and /
or issues pertaining to labour to the Municipal Manager, but rather
referred such
matter to the Mayor / Deputy Mayor / Speaker and
furthermore publicised or contributed to the publication of the
alleged queries
/ disputes / grievances on the 20
th
March
2009.
ALTERNATIVELY
By
acting in a manner which compromised the best interests, credibility
and integrity of the municipality; in that she failed and
/ or
refused to follow appropriate and / or agreed processes or internal
procedures in respect of raising alleged grievances to
the Mayor /
Deputy Mayor / Speaker, made public or contributed to publicising of
such issues, and / or circulated such issues or
correspondence
related thereto among employees, without referring to the employees.’
[6] In her award, the
Commissioner found the employees guilty of charges 1.1 and 2. The
Commissioner did not find the employees
guilty of charge 1.2.
[7] The Third Respondent
faced 3 additional allegations as follows:
‘
(3)
Insubordination and / or incitement of insubordination in that the
accused employees directed
co-employees not to abide by a specific
instruction and request of the employer; in that the accused
employee, on the 23
rd
March
2009, requested co-employees not to comply with the said instruction
and / or requests of the employer to have work attendance
registers
updated to appropriately reflect the presence or absence of employees
from their work stations on the 20
th
March
2009.
AND
/ OR
(4)
Acting contrary to the best interest of the municipality and or
acting in a manner
that is harmful to the credibility of the
municipality; in that she transmitted correspondence on the 12
th
March 2009 to co-employees advising and / or
inciting them not to comply with management staff requests and / or
instructions; and
/ or by distributing an internal memorandum with
inflammatory contents to co-employees, without addressing the
memorandum of the
issue therewith in accordance with the proper
internal structure or grievance process.
AND
/ OR
(5)
Making defamatory and / or malicious allegations or statements
towards or about a
co-employee in an email, correspondence of March
2009 which defamatory and / or malicious statements accused the
co-employee of
intimidation and insinuate that the co-employee is a
racist and / or practitioner of apartheid.’
[8] The Commissioner
found the Third Respondent guilty of charges 4 and 5, but not charge
3. She found the charges serious enough
to warrant dismissal of the
employees as appropriate in the circumstances and that their
dismissals were both procedurally and
substantively fair.
[9] As stated, the Award
was issued on 7 August 2010, but received by the Applicants on 16
August 2010. This review application
was launched on 4 November 2011
and accordingly, the condonation application was necessitated. The
Municipality opposed the condonation
application on the basis of the
Applicants’ version alone.
[10] The Municipality’s
application to dismiss the review was launched on 10 October 2013, on
grounds that the Applicants
had furnished an incomplete and
inadequate record. The dismissal application was also opposed. Since,
should it be successful,
the dismissal application would be
dispositive of the entire set of applications, I shall turn to deal
with it firstly.
The
Application to Dismiss the Review
[11] The municipality
complained that the evidence of its first witness, Bonginkosi
Bhekizenzo Biyela (“Biyela”) was
missing from the
transcribed record. This was the evidence led on the first day of the
arbitration and accordingly, all but a short
portion of his evidence
in chief was missing. The Municipality also complained that certain
documentary exhibits (“Volume
4”) were not provided to
its attorneys despite requesting same. It appears that all four
volumes were served directly on
the Municipality prior to the
Municipality appointing its attorneys of record.
[12] In any event, the
issue of Volume 4 was rectified but the Municipality maintained that
the evidence of the first day of arbitration,
being opening
statements and most of Biyela’s evidence in chief was missing.
[13]
The Applicants opposed the application to dismiss on two main
grounds. The first was that the deponent to the founding affidavit,
one Frans Marx, had no
locus standi
to launch such an
application on behalf of the Municipality as he lacked the necessary
authority as none had been specifically
delegated to him by the
Council of the Municipality or, if duly delegated herself/himself,
such powers being conferred on the deponent
by the Municipal Manager.
Annexure “FM1” attached to the municipality’s
replying affidavit and the confirmatory
affidavit of its Municipal
Manager, Mandla H Nkosi (in the dismissal papers), averred that the
deponent had the requisite authority.
[14]
While I am inclined to agree that there is insufficient evidence to
show that the deponent had standing in law
[1]
to launch the application for dismissal, even if I am wrong, the
dismissal application cannot be sustained because of the Applicants’
attitude towards the evidence of Biyela.
[15]
Rule 7A (5) and 7A (6), respectively, of the Rules for the Conduct of
Proceedings in the Labour Court (“the Rules”)
read as
follows:
‘
(5)
… The applicant must make such copies of such
portions of the record as may be necessary for the purposes
of the
review and certify each copy as true and correct.
(6)
The applicant must furnish the registrar and each of the other
parties with a copy of the record or
portion of the record, as the
case may be, and a copy of the reasons filed by the person or body.’
The
Applicants are
dominus litis
in the review and decide what
cause of action they wish to rely on and indeed which portions of the
record are necessary to sustain
their review application.
[16]
The Applicants specifically state that the evidence of Biyela does
not form the basis upon which the Applicants seek to review
the Award
and, as such, the Applicants regard such evidence as irrelevant for
the purposes of the review application
[2]
.
Furthermore, they argued that the best evidence available of the
evidence given by Biyela appears at paragraphs 4.13 to 4.61 of
the
Award, where the Commissioner summarises his evidence as she
understood it
[3]
.
[17]
It goes without saying then that the Applicants do not challenge
paragraphs 4.13 to 4.61 of the Award, except to the extent
that they
wish to challenge paragraph 4.52 relating to the issue of the
breakdown of the employment relationship. In approaching
the review
in this manner, the Applicants therefore run the risk that should
they be unable sustain their grounds of review for
want of a portion
of the record which they choose not to rely upon their review
application will naturally fail.
[18]
Finally, the Municipality also does not challenge the evidence of
Biyela set out in the Award. The dismissal application is
therefore
not successful and stands to be dismissed.
The
Application for Condonation
[19]
Case law abounds on the question of condonation. T
he
test for condonation was set out in the landmark case of
Melane
v Santam Insurance Company Limited
[4]
at
paragraph 532 C – F, per Judge of Appeal Holmes:
‘
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 therefore, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated; they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
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 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 for prospects of success which are not strong
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the Respondent’s
interest in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing the prospects
of success in the
affidavit.’
[20]
In
NUMSA
and Another v Hillside Aluminum
[5]
at
paragraph 11 and 12, Judge Murphy said the following:
‘
The
explanation must be sufficient to enable the Court to determine how
the delay came about, and to allow an assessment of the
Applicant’s
motives and conduct for the purpose of making a finding of
reasonableness. Additionally, there should be an acceptable
explanation tendered in respect of each period of delay.’
[21]
In
NUM
v Council for Mineral Technology
[6]
,
it was stated as follows:
‘…
There
is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay, the
prospects of
success are immaterial, and without prospects of success, no matter
how good the explanation for delay, Application
for Condonation
should be refused.’
[22]
The Municipality chose not to file an answering affidavit in the
condonation application and accordingly, left the issue of
prospects
of success in the review undisputed in the application for
condonation. The condonation application is therefore decided
on the
Applicants’ founding affidavit alone, together with such
submissions as were made concerning the condonation application.
The
Municipality chose only to address the length and reasons for delay
in its heads of argument.
[7]
[23]
On this basis, I will turn to deal with the length of the delay and
explanation thereof first. The delay in filing the review
application
is one year and three months. On any consideration this is a very
lengthy delay, but for the reasons given, not inordinate.
On 13
October 2010, an official of SAMWU, Mr Sbu Biyela, and Third
Applicant consulted their attorneys and gave instructions to
immediately launch the review application. At that stage the
Applicants were 11 court days late. On her version, Third Applicant
and Mr Biyela regularly followed up with their attorneys and were
assured that the matter was being dealt with. Inexplicably (on
the
part of the attorney concerned) their attorney wrote to SAMWU in
March 2011 querying the reason for SAMWU’s delay (of
11 days)
prior to instructing her in the review application. SAMWU responded
on 15 March 2011. Some five months had passed by that
stage.
[24]
After the letter referred to above had been transmitted to their
attorneys, Third Applicant ‘on a few occasions’
tried to
contact their attorneys but was unable to speak directly with her
since she was ‘unavailable as she was either on
leave, as she
was pregnant or that she was in other consultations or busy with
other matters’. Contact was made with another
attorney of the
firm who gave assurance that the matter was being dealt with, but
would take time to complete. Finally, in July
2011, the Third
Applicant was advised that their attorneys, with whom they had
consulted and had given instruction to launch the
review application,
would be closing at the end of August 2011. All files would be handed
over to new attorneys.
[25]
On 6 October 2011, almost a year to the date since consulting with
their erstwhile attorneys, the employees’ files were
handed
over to their present attorneys of record, Tomlinson Mnguni James.
Tomlinson Mnguni James received more than fifteen files.
According to
the Third Applicant, because of the volume of files handed over to
Tomlinson Mnguni James, SAMWU and Third Applicant
were only able to
consult on 2 November 2011 whereupon they were advised that no review
application had ever been launched. The
review application was
launched with haste on 4 November 2011.
[26]
Applicants argue that the employees will suffer severe prejudice in
the event that condonation is refused and will result in
a failure of
justice.
[27]
It is clear that the period of delay can be ascribed to their
erstwhile attorneys of record. While an explanation has not been
obtained for the delay during the period 13 October 2010 to 6 October
2011 from Applicants’ erstwhile attorneys, it is obvious
that
the reason is the simple inaction on the part of the attorneys to
launch the review application. Should the Applicants be
prejudiced by
the negligence of their attorney? The Municipality argues that:
(i)
SAMWU is not a lay person and is fully aware of time limits
pertaining to reviews;
(ii)
The explanation for the delay does not explain why SAMWU was not more
proactive in
appointing attorneys earlier and merely accepted their
erstwhile attorneys excuses as to why the review was not launched;
(iii)
The combined dialatoriness of the erstwhile attorneys and the failure
of SAMWU to follow
up and address the situation, does not constitute
an adequate explanation for a delay of one year and three months.
(iv)
In conclusion the application for condonation ought to be dimissed on
these grounds alone.
[28]
The undisputed evidence is that the Applicants’ erstwhile
attorneys of record did not make excuses for not launching
the review
application during the period of one year, but that rather they
mislead SAMWU and Third Applicant into believing that
all was in
order when it was not. That is a very different proposition to SAMWU
having knowledge that their erstwhile attorneys
had not in fact
launched a review application but continued to leave their faith and
trust in their attorneys.
[29]
The Municipality did not file an answering affidavit in the
condonation application and at face value in the founding affidavit
some prospects of success are introduced into the matrix of issues to
be considered. Ultimately, there would be a failure of justice
if
Applicants were refused condonation and their review application not
dealt with on its merits.
[30]
For these reasons, condonation ought to be granted to the Applicants
for the late delivery of their review application.
Grounds
of Review
[31]
The Applicants’ grounds of review are simply that: ‘No
reasonable arbitrator would have made a finding that [employees’]
dismissals were fair”
[8]
;
and that: ‘No reasonable arbitrator would have made a finding
that the Third Applicants and [Second Applicant’s] dismissals
were fair in light of the evidence presented’
[9]
.
[32]
In the supplementary affidavit, the Applicants set out a number of
instances in which they allege that the Commissioner failed
to apply
her mind; she failed to take certain evidence into account; that in
assessing the evidence, the Commissioner made a number
of errors; and
finally that: ‘It is submitted that the [Commissioner] did not
apply her mind to the facts before her. The
[Commissioner’s]
decision is further not a decision which a reasonable Commissioner
would have reached considering the facts
placed before her’
[10]
.
[33] The Applicants
allege that with respect to Charge 1.1 that the commissioner failed
to take into consideration or to appreciate
that the employees were,
at all material times, acting upon the instructions of SAMWU’s
members.
[34] The Applicants
allege that with respect to Charge 2, the Commissioner failed to
apply her mind at all to the fact that the
employees had previously
sought and been granted permission from the Municipal Manager to hand
over the memorandum in question
to the Mayor or the Speaker, of which
there was evidence before her.
[35] The Third Applicant
alleges that with respect to Charge 4, that there was no proper basis
for the Commissioner to conclude
that Third Applicant’s
forwarding of the email memorandum to members of SAMWU which had been
transmitted to her in her capacity
as secretary of SAMWU (and she had
a duty to forward the email constituted ‘acting contrary to the
best interests’
of the municipality or in any way harmed and
damaged the credibility of the municipality.
[36] The Third Applicant
alleges that with respect to Charge 5, the Commissioner failed to
consider the content of the email in
question in its entirety; and
that the email was only sent to Mr Bhajun and he could have replied
to it; and that the email records
Third Respondent’s belief
that SAMWU’s members were being intimidated and that the email
could not be construed as
inferring that Mr Bhajun was racist.
[37] The Applicants
further allege that, notwithstanding her findings of guilt, the
Commissioner failed to consider the issue of
whether there was a
breakdown of the trust relationship.
[38]
The Applicants further allege that the Commissioner failed to apply
the factors enunciated in
Sidumo
[11]
in
considering whether or not the dismissal was substantively fair and
instead applied an incorrect assessment, namely that: ‘a
commissioner will only interfere with a sanction if it is so
excessive as to shock one’s sense of fairness’
[12]
.
[39] It is apparent that
the test to be applied to the Award is whether in the totality of
these alleged irregularities (my wording,
since the Applicants have
not identified which aspect of section 145 they rely upon), the
Commissioner reached a decision that
no reasonable decision maker
could reach.
The
legal principles applicable to review
[40]
The test for review enunciated by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
[13]
is whether the decision made by the arbitrator is one that a
reasonable decision-maker could not reach on all the available
material.
[41] As to what
constitutes gross irregularity, the Court in
Sidumo
stated the
following:
‘
[268]
…where a commissioner fails to have regard to the material
facts, arbitration proceedings cannot in principle be said
to be fair
because the commissioner fails to perform his or her mandate. In
doing so, in the words of Ellis, the commissioner’s
action
prevents the aggrieved party from having its case fully and fairly
determined. This constitutes a gross irregularity in
the conduct of
the arbitration proceedings as contemplated by section 145(2)(a)(ii)
of the LRA. And the ensuing award falls to
be set aside not because
the result is wrong but because the commissioner had committed a
gross irregularity in the arbitration
proceedings’.
[42]
The
Sidumo
test
has been restated by the Labour Appeal Court
[14]
in the case of
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others as follows:
‘
[14]
Sidumo
does
not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
a
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in
Sidumo
was
a pains to state that arbitration awards made under the Labour
Relations Act (LRA) continue to be determined in terms of s 145
of
the LRA but that the constitutional standard of reasonableness is
‘suffused’ in the application of s 145 of the
LRA. This
implies that an application for review sought on the grounds of
misconduct, gross irregularity in the conduct of the
arbitration
proceedings, and/or excess of powers will not lead automatically to a
setting aside of the award if any of the above
grounds are found to
be present. In other words, in a case such as the present, where a
gross irregularity in the proceedings is
alleged, the enquiry is not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether
the result was unreasonable, or
put another way, whether the decision that the arbitrator arrived at
is one that falls in a band
of decisions to which a reasonable
decision-maker could come on the available material.
[15] A ‘process-related
review’ suggests an extended standard of review, one that
admits the review of an award on grounds
of a failure by the
arbitrator to take material facts into account, or by taking into
account facts that are irrelevant, and the
like. The emphasis here is
on process, and not result. Proponents of this view argue that where
an arbitrator has committed a gross
irregularity in the conduct of
the arbitration as contemplated by s 145(2), it remains open for the
award to be reviewed and set
aside irrespective of the fact that the
decision arrived at by the arbitrator survives the Sidumo test. I
disagree. What is required
is first to consider the gross
irregularity that the arbitrator is said to have committed and then
to apply the reasonableness
test established by
Sidumo
. The
gross irregularity is not a self-standing ground insulated from or
standing independent of the
Sidumo
test…
[16] In short: A review
court must ascertain whether the arbitrator considered the principle
issue before him/her; evaluated the
facts presented at the hearing
and came to a conclusion which was reasonable to justify the
decisions he/she arrived at’.
Analysis
[43]
The Award is some 33 pages in length and the arbitration took place
over 8 February 2010, 13
April 2010, 8 and 9 June 2010, and 10 and 12
July 2010.
[44]
It is apparent that the Commissioner identified that the issue in
dispute was whether the dismissal
of the employees, on the charges
set out in their charge sheets
[15]
,
was procedurally and substantively fair. I mention this because of
the following submission set out in the Municipality’s
heads of
argument
[16]
:
‘
The
golden thread of the applicant’s grounds for review is that the
[employees’] were acting as shop stewards and not
as employees
and accordingly should not have been dismissed.
The
[commissioner] considered their conduct with reference to the
collective agreement, a resolution of the Local Labour Forum,
their
duties as shop stewards and her finding is in tune with the
authorities which stipulate that the employer is entitled to
discipline shop stewards should they not act bona fide and commit
misconduct as an employee
[17]
’.
[45]
To the extent that the Applicants have challenged the Award on
specific issues or points of evidence, set out above, there
is every
indication that the Commissioner applied her mind to such evidentiary
factors in her Award. The type of in depth factual
analysis required
to sustain the specific issues the Applicants raise (unless the
Commissioner misconstrued the whole nature of
the enquiry
[18]
or arrived at a decision which no reasonable decision maker could
reach) fell away after
Herholdt
v Nedbank Limited
.
It also cannot be said that the Award is ‘entirely disconnected
with the evidence’ or is ‘unsupported by any
evidence’
[19]
.
[46]
The applicant submitted that the Award was susceptible to being
reviewed and set aside because no reasonable arbitrator would
have
found the employees’ dismissals to be fair. Under the
Sidumo
test,
there is a band of reasonableness within which a commissioner’s
decision will be insulated from ‘incorrectness’,
if
indeed the result was incorrect, so long as it was reasonable. In
this matter, for the reasons which follow, not only do I regard
the
commissioner as having applied her mind to the issues that were put
in dispute correctly, but at the very least, having considered
the
issues, she arrived at a result which comfortably falls within the
band of reasonableness deriving from
Sidumo
and
Goldfields
Mining
South
Africa
and
other notable decisions of the Labour Appeal Court
[20]
.
[47]
The Commissioner applied her mind to the issue on charge 1.1 of
acting under instructions from members of SAMWU and rejected
it at
paragraph 5.4 and 5.5 of the Award.
[48]
The Commissioner considered the evidence on charge 2 of permission
having been granted to hand over the memorandum to the Mayor
or
Speaker in paragraph 5.7 and 5.8 of the Award.
[49]
The Commissioner considered the evidence relating to charge 4
relating to the email memorandum having been forwarded on in
her
capacity as Secretary of SAMWU in paragraphs 5.11 and 5.12 of the
Award.
[50]
The Commissioner applied her mind relating to charge 5 relating to
the email sent to Bhajun at paragraph 5.13 of the Award
and
reasonably decided that the email inferred that Bhajun was racist.
[51]
The Municipality’s ‘golden thread’ argument holds
weight in law, in that an employer is entitled to discipline
an
employee even though they may be a shop steward, purportedly acting
under protection of such
[21]
.
As an aside, perhaps the Applicants ought to have sought relief under
section 5 of the LRA in the Labour Court. Their decision
not to do so
only fortifies the Commissioner’s understanding of the nature
of the enquiry before her.
[52]
Despite the unfortunate reference to
County Fair Foods (Pty) Ltd v
CCMA and Others
, it is clear that the Award is not narrowly
confined to that test which deferred to the employer.
[53]
Finally, on the question of breakdown of the employment relationship,
the Applicants sought to enter facts that occurred after
the
dismissals and which were never before the Commissioner
[22]
when making her Award.
[54]
The Constitutional Court
[23]
has held that arguments that flow from facts deriving after the
dismissal cannot impact on the ultimate decision of the tribunal
or
court that decides the fairness and relief in such dismissals.
[55] In my view, on a
conspectus
of all the evidence and issues raised, the Award is
reasonable and the Applicants’ contentions that it is one which
no reasonable
arbitrator would have made, must fail.
[56] In relation to
costs, taking into account the requirements of law and equity, I do
not believe that any costs order should
follow the result in the
application to dismiss and in the condonation application, however,
it is my view that this matter was
pursued by a large trade union in
the interests of its members and there is no reason why the costs
should not follow the result
in the review application.
Order
[57]
In the premise, I make the following order:
1.
The application to dismiss the review application is dismissed with
no order
as to costs.
2.
The late filing of the review application dated 4 November 2011 is
condoned with
no order as to costs.
3.
The application to review, set aside and correct the Arbitration
Award handed
down by the Third Respondent on 7 August 2010 under case
reference KPD110915 is refused with costs.
___________________
Rocher,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Advocate Kelsey Allen
Instructed
by:
Tomlinson Mnguni James
For
the Third Respondent:
Advocate R G
Ungerer
Instructed
by:
Kloppers Inc
[1]
Based on a sections 30
of the Local Government: Municipal Structures Act, 1998 (as
amended); and sections 55 of the Local Government:
Municipal Systems
Act, 2000 (as amended)
[2]
Dismissal papers: page
33; paragraph 10
[3]
Dismissal
papers: page 34; paragraph 16
[4]
1962
(4) SA 531 (A)
[5]
(2005)
6 BLLR 601 (LC)
[6]
(1999)
3 BLLR 209
(LAC) at para 10.
[7]
First Respondent’s
Heads of Argument: page1 and 2.
[8]
Review Application: page
12; paragraph 21
[9]
Review Application: page
15; paragraph 22
[10]
Review Application: page
58; paragraph 8
[11]
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
(2007)
28 ILJ 2405 (CC)
[12]
A principle enunciated
in
County
Fair Foods (Pty) Ltd v CCMA and Others
(1999)
20 ILJ 1701 (LAC)
[13]
[2007] 28
ILJ
2405 (CC)
[14]
(2014) 35
ILJ
943 (LAC); also
[2007] ZALC 66
;
[2014] 1
BLLR 20
(LAC) at paras 14, 15 and 16.
[15]
Repeated at paragraphs 5
and 7, supra
[16]
First Respondent’s
Heads of Argument: paragraphs 35 to 36, including footnote 31
[17]
Footnote 31:
NUM
and Others v Black Mountain Mining (Pty) Ltd
[2010]
3 BLLR 281:
Paragraphs [33] to [47]
[18]
Andre Herholdt v
Nedbank Limited
[2013]
11 BLLR 1074
(SCA); (2013) 34 ILJ 2795 (SCA); 2013 (6) SA 224 (SCA);
[19]
Ibid
at para 13
[20]
Afrox Healthcare
Limited v CCMA and Others
[2012]
7 BLLR 649
(LAC)
.
[21]
BIFAWU and Another v
Mutual and Federal Insurance Company Limited
(JA15/2003)
[2005] ZALAC 10
(9 December 2005)
[22]
Dismissal Application:
Page 34; Paragraph 20 and 21
[23]
Billiton Aluminium SA
Ltd t/a Hillside Aluminium v Khanyile and Others
(CCT
72/09)
[2010] ZACC 3
;
2010 (5) BCLR 422
(CC) ; (2010) 31
ILJ
273
(CC) ;
[2010] 5 BLLR 465
(CC) (18 February 2010)