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[2015] ZALCD 38
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South African Police Service v Naidoo and Others (D673/09) [2015] ZALCD 38 (26 June 2015)
REPUBLIC OF SOUTH
AFRICA
LABOUR COURT OF SOUTH
AFRICA, DURBAN
JUDGMENT
Reportable
Case no: D673/09
In the matter between:
SOUTH AFRICAN POLICE
SERVICE
Applicant
And
ROGANI
NAIDOO
First
respondent
A DEYZEL
N.O
Second
respondent
SAFETY AND SECURITY
SECTORAL
Third
respondent
BARGAINING COUNCIL
JUDGEMENT
Heard: 19 December
2013
Delivered: 26 June
2015
Summary: Application
to review and set aside arbitration award. Award issued subsequent to
a ruling by the Arbitrator barring applicant
from defending the
dismissal dispute. Ruling of bar based on application of SSSBC
dispute procedure collective agreement and on
interpretations of
various prior rulings. Application of amendments to laws regulating
dispute resolution procedures to pending
disputes considered.
Procedural amendments to SSSBC dispute procedure collective agreement
applicable from effective date
amendments came into force, even if
dispute referred prior to effective date. Arbitrator applied
provisions of incorrect dispute
procedure collective agreement.
Applicable dispute procedure collective agreement did not require the
applicant to file a statement
of defence. Arbitrator lacked
power to issue a ruling barring the applicant from defending the
matter. No prior ruling was
made denying applicant condonation for
the late filing of its statement of defence. Arbitrator applied
incorrect collective agreement,
exceeded powers emanating from the
applicable collective agreement by barring the applicant from
defending the matter, misinterpreted
prior rulings and the effect of
prior rulings on the applicant’s status to defend the matter.
Arbitration award reviewed
and set aside and remitted to the third
respondent to be determined on the merits de novo.
M NAIDOO, AJ
Introduction
[1] This is an opposed
application to review and set aside an Award issued by the second
respondent, dated 12 July 2009 under case
number PSSS 209-03/04. The
relief sought by the applicant is for the award to be reviewed and
set aside and for the matter be remitted
to the third respondent for
determination on the merits
de novo,
before a commissioner
other than the second respondent.
Background
[2] On
14 November 2003 the first respondent referred an alleged unfair
dismissal dispute to the third respondent. The applicant’s
referral was accompanied by an application for condonation.
[1]
[3] On
23 January 2004 the applicant delivered a statement of defence
together with an application for condonation for the late
delivery of
its statement of defence.
[2]
[4]
The dispute procedure collective agreement of the third respondent is
incorporated in its Constitution and is amended from time
to time.
[5]
The first respondent’s dispute was referred on or about 15
November 2003. At that time, the dispute procedure that applied
was
concluded under Collective Agreement 02/2001 dated 13 February 2001
which provided the following at clause 3.5 (e):
‘
Within
10 working days of receipt of the
referral the respondent party to the dispute must serve an answer on
all parties to the dispute
and on the Council. The answer must state
the respondent’s defense to the referral.’
[6]
Clause 6 of Collective Agreement 02/2001 provided that in the event
of non-compliance with any time period provided for in the
dispute
resolution procedure, an application for condonation was necessary.
[7] The applicant
delivered a statement of defence 18 days late. Contemporaneously the
applicant applied for condonation for the
late delivery of its
statement of defence.
[8] The first respondent
opposed the applicant’s application for condonation for the
late delivery of its statement of defence.
The applicant did
not deliver any answering affidavit in opposition to the first
respondent’s application for condonation.
[9] In summary, the first
respondent’s application for condonation for the late referral
of the dispute was unopposed and
the applicant’s application
for condonation for the late filing of the statement of defence was
opposed.
[10]
A trilogy of rulings were issued by Commissioner Maepe in relation to
condonation. These rulings gave rise to a dispute over
which
condonation application Commissioner Maepe dealt with, the
interpretation of the various rulings and the effect of the rulings
on the applicant’s capacity to put up a defence on the merits
of the dismissal dispute at arbitration. A summary of
the
rulings issued by Commissioner Maepe are dealt with below:
a)
On
16 April 2004 a ruling was issued refusing condonation.
[3]
Based on the reasons issued it is apparent that Commissioner Maepe
was dealing with the first respondent’s application for
condonation however was under the mistaken impression that the
applicant made an application seeking condonation to oppose the
first
respondent’s application for condonation. It is common cause
that the applicant did not make such an application but
rather
applied for condonation for the late filing of its statement of
defence. It was also common cause that the opposing
affidavit
delivered by the first respondent was made in response to the
applicant’s application for condonation for the late
delivery
of the applicant’s statement of defence.
[4]
b)
On 9 May 2004, Commissioner Maepe issued a
variation ruling denying the applicant condonation and granting the
first respondent’s
application for condonation. Once
again, based on the reasons issued, it is evident that Commissioner
Maepe remained under
the impression that he had to determine whether
the applicant’s late delivery of opposing papers to the first
respondent’s
application for condonation ought to be condoned.
If not, then the first respondent’s application for condonation
would
be approached as unopposed.
Commissioner
Maepe’s concluding reasons prior to recording the ruling were
as follows:
‘
Under
the circumstances the applicant’s application for condonation
for late referral of his dispute stands unopposed and
accordingly the
following rulings are made.
Ruling
The
respondent’s application for condonation is denied
The
applicant’s application for condonation is granted’
[5]
(c)
On 3 December 2004 the condonation ruling
issued on 9 May 2004 was rescinded by the Commissioner Maepe. The
relevant extracts of
the reasons and ruling made is recorded below:
‘
On
the 12 November the applicant’s attorneys of record raised
certain concerns with regards to my ruling on condonation dated
9 May
2004 in the same matter, that there is some ambiguity to the
ruling….It is indeed correct that the unopposed application
for condonation should be heard by the arbitrator chosen to preside
over the case and it is on these grounds that the condonation
ruling
of 9 May 2004 is rescind to enable the process to be taken further..
Ruling
Condonation
ruling of 9 May 2004 is accordingly rescind’
[6]
(sic)
[11]
The concerns referred to above by Commissioner Maepe were brought to
his attention by the first respondent’s attorneys
in a letter
dated 12 November 2004. The first respondent’s attorneys raised
the following:
(a)
The notice of application and affidavit
filed by the applicant was unambiguous in that it is clear that the
applicant sought condonation
for the late delivery of its statement
of defence and therefore that the first respondent’s
application for condonation was
not opposed.
(b)
The above was confirmed by the applicant’s
representative at arbitration proceedings scheduled for 1 November
2004.
(c)
In terms of clause 6.5 of the dispute
resolution procedure only opposed applications for condonation may be
considered separately
by an arbitrator.
(d)
In terms of clause 6.4 unopposed
applications for condonation need to be dealt with by the
Commissioner appointed to arbitrate the
dispute. Accordingly,
Commissioner Maepe ought not to have ruled on the first respondent’s
application for condonation
as it was clearly unopposed.
(e)
‘
In
the unlikely event that the Honourable A E Maepe did misunderstand
the nature of the application for condonation and dealt with
it as a
reply to the applicant’s previous application for condonation,
it will follow that the respondent’s application
for
condonation for the late filing of the statement of defence has not
been adjudicated upon’
[7]
(f)
In conclusion, the commissioner was
requested to clarify his ruling and/or to hear oral argument if there
was further confusion.
[12]
In response to the above communication, Commissioner Maepe issued the
rescission ruling dated 3 December 2004.
[13]
Prior to Comissioner Maepe issuing the ruling rescinding the
condonation ruling which he had issued on 9 May 2004, the matter
was
enrolled for a con-arb hearing on 12 August 2004.
[8]
The hearing was postponed due to the first respondent’s
attorney been indisposed due to medical reasons.
[9]
The parties agreed to proceed with the matter on 29 September 2004.
It is unclear what occurred on 29 September 2004.
[14]
The hearing was set down again on 1 November 2004 before Commissioner
Narini Hiralall. On that occasion the matter could not
proceed due to
a point being raised by the first respondent’s representative
that the effect of the ruling dated 9 May 2004
was that the applicant
was not entitled to lead evidence in defence at arbitration. The
applicant disagreed with the first respondent’s
interpretation
of Commissioner Maepe’s rulings. Due to this, Commissioner
Narini Hiralall did not proceed with the hearing
and allowed the
parties time to obtain clarification from Commissioner Maepe
regarding the ambiguity that had been raised by the
first
respondent.
[10]
[15]
Following the above events, the communication dated 12 November 2004,
was authored by the first respondent’s attorneys
and sent to
Commissioner Maepe. As stated above, this led to Commissioner
Maepe issuing a ruling in terms of which the condonation
ruling dated
9 May 2004 was rescinded.
[16]
The matter was enrolled as a con-arb hearing for 16 February 2007
before Commissioner Narini Hiralall but did not proceed on
account of
the first respondent’s counsel being unavailable until April
2007.
[11]
[17]
It appears from the record that the matter was enrolled for a con-arb
thereafter on 16 July 2007 but did not proceed for unknown
reasons.
[18]
The next con-arb date was scheduled for 17 September 2007 but also
did not proceed due to a miscommunication over the date
of hearing
with the appointed Arbitrator.
[12]
[19]
The matter was next set down as a con-arb hearing on 18 October 2008
before Commissioner Lisa Williams-De Beer. The matter
did not proceed
on the merits as the first respondent sought a ruling to be issued
concerning the status of the applicant, in particular,
that the
applicant was barred from defending the matter. The same point taken
before Commissioner Narini Hiralall in 2004 which
resulted in the
matter not proceeding.
[20]
Commissioner Lisa Williams-De Beer issued a ruling upholding the
first respondent’s point. The ruling made was
that the
applicant was barred from defending the matter and that the dispute
is to be treated as an unopposed matter.
[13]
[21]
The applicant brought an application to rescind the above ruling on
the grounds of a “mistake common to the parties”
[14]
.
The first respondent opposed the application though the application
was dealt with on an unopposed basis as Commissioner Lisa
Williams-De
Beer found that the first respondent did not deliver an opposing
affidavit timeously. The applicant’s grounds
for the
application were the following:
(a)
the dispute resolution procedure had been
superseded;
(b)
the mistake common to the parties is that
the first respondent had not been granted condonation for the late
referral of her dispute;
(c)
Until such time that the first respondent
is granted condonation for the late referral of her dispute, the
first respondent lacks
locus standi
to seek a ruling barring the applicant from defending the matter and
from proceeding with conciliation/arbitration proceedings.
[22]
On 12 January 2009, Commissioner Lisa Williams-De Beer granted the
application for rescission. The following ruling was
issued:
‘
1.
The ruling dated 1 November 2008 is hereby
rescinded.
2.
The respondent’s unopposed application for
condonation must be considered prior to proceeding with this matter.
3.
In the event that such application succeeds, the question of the
status of the Applicant in relation to the
defence of such claim
shall be considered afresh.’
[23]
On 23 February 2009, Commissioner F J Van Der Merwe was appointed to
consider the first respondent’s unopposed application
for
condonation. On 25 February 2009, the following ruling was issued:
‘
14.
The applicant’s referral was not late and condonation is not
required.
15.
Should I be wrong in the aforementioned conclusion, condonation of
the late referral is granted.’
[24]
There is no record of a certificate of outcome being issued and no
record of what process the matter was set down for on the
next
occasion. The matter came before the second respondent on 29 June
2009. On the same day, after hearing argument, the
second
respondent issued an
ex tempore
ruling as follows:
(a)
the applicant was barred from defending the matter;
(b)
even if the applicant was not barred from defending the matter an
adjournment would not be granted.
[25]
On the same day, the arbitration proceeded on an unopposed basis on
account of the above ruling. It appears from the record
that when the
arbitration commenced that the applicant’s representative was
no longer present.
[26]
On 12 July 2009 the Award under review was issued which included the
second respondent’s reasons for issuing the ruling
barring the
applicant from defending the matter. The second respondent found that
the first respondent’s dismissal was unfair
and ordered
retrospective reinstatement with effect from a date two years and ten
months prior to the issuing of the award.
Grounds
for review and opposition
[27]
The second respondent committed a gross irregularity and/or acted
unreasonably in finding that the applicant was barred from
defending
the matter. In support of this ground of review the applicant
submitted that:
(a)
This finding was premised on the erroneous belief that ‘the
ruling refusing condonation of the
late filing of its statement of
case was however not rescinded’. A ruling on the
applicant’s application for
condonation for the late delivery
of its defence was not made. In any event, even if such a
ruling was made, erroneous or
not, Commissioner Maepe rescinded all
prior rulings issued on 3 December 2004;
(b)
The second respondent expressed concerns about Commissioner Maepe’s
ruling but nevertheless considered
himself bound to enforce an
interpretation of the ruling;
(c)
By stating that ‘he had no choice but to approach the matter on
the basis that Commissioner Maepe
had refused to condone the late
filing of the statement of defence’, the second respondent is
perpetuating an irregularity
which had the effect of tainting his
entire award;
(d)
In the event that the second respondent’s award was misguided
and erroneous, then the entire basis
for the first finding is
irregular and falls to be set aside;
(e)
The second respondent committed a gross irregularity in the manner in
which he approached and evaluated
Commissioner Maepe’s ruling;
(f)
Had the second respondent conducted a proper assessment of
Commissioner Maepe’s rulings
he would have found that the
applicant’s application for condonation had not been determined
and accordingly the applicant
was not barred from defending the
matter.
[28]
The second respondent committed a gross irregularity and/or acted
unreasonably in refusing the applicant’s application
for an
adjournment. In support of this ground of review the applicant
submitted that:
(a)
This finding was merely included in order to justify the outcome in
circumstances where the first finding
was unsustainable.
(b)
It was not unreasonable for the applicant to require a determination
on whether it was entitled to defend
the matter given that on each
occasion since Commissioner Maepe issued the ruling rescinding the
condonation ruling dated 9 May
2004, the first respondent took the
same point repeatedly. There was accordingly no certainty on
whether the respondent could
present a defence or not.
(c)
Extra-ordinary circumstances did exist for the adjournment though
these were not taken into account
as the second respondent’s
mind was already tainted by the first finding under review.
(d)
The main consideration for declining the adjournment was the period
of time that had lapsed in the matter
though the second respondent
acknowledged in his reasons that both parties were responsible for
delays and not solely the applicant.
[29]
The first respondent raised a
point in limine
during argument
that the application falls to be dismissed purely on the basis of the
delay in prosecuting the application for review.
No substantive
application to dismiss was brought. In my view, this is an
extra-ordinary remedy, particularly given the history
of this matter
that is required to be brought on substantive application and on
notice. The first respondent’s
point in limine
is
dismissed on the grounds that:
(a)
it has not been raised properly before this Court; and
(b)
based on the papers, the applicant has provided a satisfactory
explanation for the delay in filing the record.
[30]
In response to the grounds of review the first respondent submitted
that:
(a)
The second respondent’s ruling barring the applicant was based
on the correct interpretation of
Commissioner Maepe’s rulings;
(b)
Even if the second respondent’s interpretation of Commissioner
Maepe’s ruling was incorrect
(which the first respondent
disputes) the ruling made by the second respondent was reasonable.
(c)
The second respondent’s grounds for refusing to entertain an
application for adjournment were
sound based on the delays that
plagued the matter and accordingly reasonable.
[31]
Both parties submitted supplementary heads of argument to address an
issue of law raised by the Court. The question concerned
which
dispute procedure collective agreement applied at the time that the
second respondent determined the matter? In my
view, despite
the fact that this was not raised directly as an issue by either
party, it is material to take into account to determine
the merits of
the application for review. Neither party was in a position to
address the question fully during argument. I accordingly
allowed the
parties to file supplementary heads of argument on the point.
[32]
The applicant submitted that the applicable dispute resolution
agreement that applied to the matter at the time that the matter
came
before the second respondent’s was Collective Agreement 1 of
2008.
[33]
In terms of Collective Agreements 1 of 2008, the requirement for the
applicant to deliver a statement of defence within a stipulated
period no longer existed.
[34]
The 2008 amendments constituted an amendment to the procedure and did
not remove any substantive rights of a party. In those
circumstances,
the parties were bound by the dispute resolution procedure as amended
with effect from April 2008. In support,
Counsel for the
applicant cited the matter of
Van
Schalkwyk v Spoornet
[15]
[35]
The first respondent’s application for condonation was only
considered on 25 February 2009 during the operation of Collective
Agreement 1 of 2008. It follows that the referral was only a valid
and proper referral with effect from the date that the first
respondent’s application for condonation was determined.
[36]
When Commissioner Maepe ostensibly refused condonation for the late
delivery of the statement of defence there was no valid
referral and
accordingly any ruling in relation to the applicant’s statement
of defence is invalid and
pro non scripto
.
[37]
Had the second respondent properly considered the provisions of the
collective agreement that applied at the time being Collective
Agreement 1 of 2008, as a reasonable arbitrator is required to do, he
would have found that he was not bound by Commissioner Maepe’s
ruling. In those circumstances there was no basis for barring the
applicant.
[38]
The first respondent submitted that the point raised by the Court was
never raised in the pleadings and not ventilated
prior to the hearing
of the matter and therefore the Court was precluded from raising this
issue when the applicant itself has
not relied on it.
[39]
The cause of action arose whilst Collective Agreement 02/2001 was in
force. Collective Agreement 02/2001 required the applicant
to file a
statement of defence within a stipulated period failing which an
application for condonation was necessary.
[40]
Collective Agreement 02/2001 applied to the dispute at the time the
matter came before the second respondent for determination
because
the parties were bound by the dispute resolution procedures that
applied at the time that the dispute was referred.
The
review test applicable
[41]
The Labour Appeal Court in
Jonsson
Uniform Solutions (Pty) Ltd vs Lynette Brown and Others
[16]
clarified
the position in relation to the different tests applicable to factual
and jurisdictional findings as follows:
‘
[35]
The issues in dispute will determine whether the one or the other of
the review tests is harnessed in order to resolve the
dispute.
In matters where the factual finding of an arbitrator is challenged
on review, the reasonable decision-maker standard
should be applied.
Where the legal or jurisdictional findings of an arbitrator are
challenged the correctness standard should
be applied. There will,
however, be situations where the legal issues are inextricably linked
to the facts so that the reasonable
decision-maker standard could be
applied.’
[42]
In
SARPA
& others v SA Rugby (Pty) Ltd & others
[17]
the Labour Appeal court explained the application of the correctness
test as follows:
‘
[39]
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 section 191 of the
Act.
[40]
The CCMA is a creature of statute
and is not a court of law. As a general rule, it cannot decide its
own jurisdiction. It can only
make a ruling for convenience. Whether
it has jurisdiction or not in a particular matter is a matter to be
decided by the Labour
Court…
[41]
The question before the court a quo was whether on the facts of the
case a dismissal had taken place. The question was not
whether the
finding of the commissioner that there had been a dismissal of the
three players was justifiable, rational or reasonable.
The issue was
simply whether, objectively speaking, the facts which would give the
CCMA jurisdiction to entertain the dispute existed.
If such facts did
not exist the CCMA had no jurisdiction irrespective of its finding to
the contrary.’
[43]
Applying the above legal principles it is my view that the
correctness standard applies to the ground of review challenging
the
second respondent’s ruling barring the applicant from defending
the matter.
[44]
The correctness standard requires a reviewing court to analyse the
objective facts to determine whether jurisdiction exists
or in this
case whether the commissioner, based on the objective facts,
correctly barred the applicant from defending the matter.
If I
am wrong that the correctness test applies, I intend to furnish
reasons for my decision based on the application of the reasonable
decision-maker test. The outcome, based on the application of either
test, is the same due to the nature of issues called upon
to be
determined under this review and the unique factual background of
this matter.
Analysis
[45]
The second respondent ruled that the applicant was barred from
defending the matter for the following reasons:
[18]
(a)
The dispute resolution procedure of 2003/2004 was binding on the
parties and required the applicant
to respond to a referral within
ten working days failing which the respondent was required to apply
for condonation;
(b)
Commissioner Maepe made a ruling in response to a letter by the first
respondent’s attorneys but
did not indicate that his ruling of
9 May 2004, refusing the applicant’s for condonation was due to
a misunderstanding of
the nature of the application.
(c)
Accordingly, the second respondent had no choice but to approach the
matter on the basis that Commissioner
Maepe had refused to condone
the late filing of the statement of defence.
(d)
The effect of the above was that the applicant was barred from
defending the matter on the merits.
The
applicable dispute resolution procedure
[46]
The parties addressed this question in supplementary heads of
argument on request of this Court. I do not accept the submission
made by the first respondent’s attorney that this Court is
precluded from raising this issue
mero motu
. In my view this
is a material issue. It would not serve the interests of justice to
bury a point raised by this Court which is
material to making a
determination in this matter, particularly given the lengthy history
of this matter.
[47]
Apart from the above, it not a point that never arose before the
second respondent. The second respondent raised the point
to
ascertain whether he had jurisdiction to arbitrate the dispute and
whether there existed a requirement for the applicant to
file a
statement of defence within a stipulated period. The second
respondent’s view was that if the dispute resolution procedure
required a certificate of outcome to be issued and one was not
issued, then he lacked jurisdiction to arbitrate the dispute.
[19]
Further that, if the dispute collective agreement that applied
required a statement of defence to be filed then it was required
of
the applicant to seek and be granted condonation failing which, the
applicant would be deprived of the right to be heard.
[20]
[48]
It is unclear how the second respondent resolved the enquiry into
whether or not he did had the necessary jurisdiction to arbitrate
the
dispute in the absence of a certificate of outcome being issued. This
is not dealt with further in the transcript of the proceedings
nor in
the Award. The record reflects that after raising this concern
the second respondent adjourned proceedings to reflect
on provisions
of the dispute procedure collective agreement which the first
respondent’s representative submitted applied
to determine the
point raised.
[49]
The transcript reflects that the first respondent’s
representative submitted that the applicable dispute resolution
procedure that applied to the dispute and which was binding on the
parties was the previous agreement which he referred to as 2003/2004
agreement. It was further submitted that this was the basis upon
which the matter was argued before Commissioner Lisa Williams-De
Beer.
[50]
Commissioner Lisa Williams-De Beer records the following in the
ruling dated 1 November 2008 as submissions made by the first
respondent before her:
‘
This
matter was referred under the previous Collective Dispute Procedure
of 2004 and clause 3.5 (e) thereof obligated the Respondent
to serve
an answer to the Applicant’s case within 10 days of the receipt
of the referral…He pointed out that that
the wording of clause
3.5 (e) was peremptory and the statement of defence was a mandatory
step to allow for the Respondent to follow
to defend the claim.’
[21]
[51]
I have considered the past collective agreements for the purpose of
assessing which dispute resolution agreement was relied
upon by the
first respondent’s representative in both instances referred to
above. The references to the dispute resolution
procedure
applicable in 2003/2004 by the first respondent’s
representative and then the reference to a Collective Dispute
Procedure of 2004 by Commissioner Lisa Williams-De Beer blurs the
line concerning precisely which collective agreement the first
respondent’s representative was referring to. This is relevant
because the first respondent’s representative submitted
to the
second respondent that the previous agreement applied based on the
same reasons that were argued before Commissioner Lisa
Williams-De
Beer. This is also relevant because it is apparent from the second
respondent’s reasons that he placed reliance
on the reasoning
previously given Commissioner Lisa Williams-De Beer on the same
point.
[52]
The following is apparent from an assessment of the prior collective
agreements that were referred to:
(a)
The first respondent was relying on, and continued through all stages
of the matter before the third
respondent, Collective Agreement
02/2001 dated 13 February 2001 which contained, at clause 3.5 (e) an
obligation on the applicant
to file a statement of defence within ten
working days of receipt of a referral. It appears that this
collective agreement
applied as at the date that the first respondent
referred the dispute being on or about 15 November 2003.
(b)
Collective Agreement 2/2001 was amended by Collective Agreement
1/2004 dated 6 February 2004.
The amended clause 3.5 did not
contain an obligation for the applicant to file a statement of
defence within a prescribed time
period.
(c)
Collective Agreement 1/2008 was in force at the time the matter came
before the second respondent and
similarly did not contain an
obligation for the applicant to file a statement of defence within a
prescribed time period.
[53]
The reference to a 2003/2004 by the first respondent is actually a
reference to Collective Agreement 2/2001. It could
not have
been reference to Collective Agreement 1/2004 as that collective
agreement had already omitted the requirement for the
applicant to
file a statement of defence within a stipulated
period.
[54]
The first respondent’s representative submitted that despite
various subsequent amendments to the dispute procedure by
way of
collective agreements, the dispute resolution collective agreement
that applied to the dispute was the one in place at the
time the
dispute was referred.
[22]
[55]
The second respondent raised the pertinent question of the possible
retrospective application of amendments to the dispute
resolution
procedure in the event that subsequent amendments brought about
procedural changes only. The first respondent’s
representative’s response to this was that the retrospective
application of amendments will depend on transitional arrangements
provided for though did not make any reference to precisely what
transitional provisions were being relied on. There are
in fact
no transitional arrangements provided for in Collective Agreement
02/2001 or Collective Agreement 1/2008.
[56]
The second respondent was in doubt on this point and expressed this
as follows:
‘
I
don’t know if it is so clear as far as I am concerned. I’ve
got a vague recollection that things are different when
it comes to
procedure. Obviously the Act with retrospectively would not
affect substantial rights that existed prior to it,
because its
deemed not to affect existing rights, but on procedural issues I’m
not that certain that it doesn’t, unless
there’s of
course, like you say, interim arrangements saying that the procedure
will continue to apply in pending matters.’
[23]
[57]
There is no further reference in the transcript of proceedings
relating to the basis upon which the second respondent accepted
the
first respondent’s submissions that the dispute resolution
procedure that applied was the one that existed at the time
the
dispute was referred. No reasons are furnished in the Award as to why
the second respondent found that the “
disputes
procedure contained in the Constitution of the SSSBC (as it was in
2003/2004)
was
binding on the parties and required of the respondent to respond to a
referral within ten days..”.
[24]
[58]
The dispute resolution procedure that applied at the time of issuing
the ruling barring the applicant from defending the matter
is
significant. In the event that there was no requirement for the
applicant to deliver a statement of defence then it is
my view that
the second respondent had no power to make a ruling barring the
applicant from defending the matter based on a procedural
requirement
that no longer existed.
[59]
This was acknowledged by the third respondent’s representative
to be the position:
‘
Commissioner:…Are
you submitting that it’s the previous dispute resolution
process that is applicable or is it the
present one?
Mr
Howse: No, no, we’re saying it’s the previous one which
is applicable. That’s the basis on which we argued
the matter
before Mrs Williams de Beer on the last occasion as well, because the
understanding is that in terms of the present
dispute procedures, the
respondent would not necessarily be barred either because I believe
it’s not a specific requirement
that a statement of defence be
filed, whereas in those dispute resolutions it was a specific
requirement.’
[25]
[60]
The Labour Court has held that where an amendment to laws does not
impact on any substantive rights of a party but is an amendment
to
the regulation of procedure, such as a time period, then the
amendment operates with retrospective effect, being the date of
promulgation of the amendment.
[26]
[58]
The Constitutional Court
[27]
set out the legal position in regard to the effective date of
application of amendments to laws as follows:
‘
[16]
According to our common law, provisions of a statute do not, unless
the contrary is stipulated, have retrospective effect.
They do not
affect vested rights or obligations. However, provisions that
regulate procedural rather than substantive matters ordinarily
have
immediate effect on all disputes even if they arose prior to the
enactment of the legislation. In Curtis v Johannesburg Municipality
1906 TS 308
at 312 Innes CJ held that:
"Every
law regulating legal procedure must, in the absence of express
provision to the contrary, necessarily govern, so far
as it is
applicable, the procedure in every suit which comes to trial after
the date of its promulgation. Its prospective operation
would not be
complete if this were not so, and it must regulate all such procedure
even though the cause of action arose before
the date of
promulgation, and even though the suit may have been then pending. To
the extent to which it does that, but to no greater
extent, a law
dealing with procedure is said to be retrospective. Whether the
expression is an accurate one is open to doubt, but
it is a
convenient way of stating the fact that every alteration in procedure
applies to every case subsequently tried, no matter
when such case
began or when the cause of action arose."
It
is not always easy to tell whether a statutory provision is purely
procedural in effect or not. To avoid confusion, therefore,
many
statutes that repeal other statutes expressly regulate their
transitional effect.’
[59]
The third respondent is a Bargaining Council established in terms of
section 36(2) of the Labour Relations Act, 1995 (LRA).
It is
empowered in terms of section 36(5) of the LRA to conclude collective
agreements. Collective agreements concluded under the
auspices of the
third respondent alternatively a Bargaining Council constituted in
accordance with the requirements of the LRA
are binding and apply
with the same force as a law.
[60]
In my view the same principle concerning the effective date of
application of amendments to laws applies to collective agreements
concluded under the auspices of a Bargaining Council. In the event
that a collective agreement does not provide for transitional
arrangements, which is the case in this matter, then amendments to
procedure apply with effect from the implementation date of
the
collective agreement to pending disputes, even if the cause of action
arose prior to the amendment coming into force. Put another
way, the
dispute procedure collective agreement in force at the time a matter
is heard or a determination is required to be made,
is applicable.
[61]
The requirement, as it existed, for the applicant to file a statement
of defence within a specific time period was a procedural
requirement. There were no stipulated minimum requirements that
applied. Even if wholly inadequate, no provision existed for the
content to be interrogated at the risk of the party being barred from
defending the matter. The statement of defence
[28]
that was submitted by the applicant was basic and lacking in detail
to say the least, however, nothing on the merits turns on this.
[62]
The second respondent incorrectly relied on the provisions of a
dispute resolution procedure that did not apply. Had
the second
respondent applied the correct dispute resolution procedure, being
the one in force at the time the matter came before
him for
determination, namely Collective Agreement 1 of 2008, the result
would not have been the same. The collective agreement
that
applied did not require the applicant to file a statement of defence.
That obligation was deleted by amendments to the dispute
resolution
collective agreement. The second respondent lacked power to make a
ruling barring the respondent from defending the
matter for any
reason relating to the statement of defence as it was no longer a
requirement.
[63]
The application of the incorrect dispute resolution collective
agreement also had a direct impact on the second’s respondent’s
jurisdiction to arbitrate the dispute. As stated above, the
second respondent was alert to the fact that he was duty bound
to
satisfy himself that he had jurisdiction to arbitrate the dispute by
establishing whether a certificate of outcome was required
to be
issued. It appears that this point was resolved on the basis
that a certificate of outcome was not required to be issued
in terms
Collective Agreement 02/2001. Indeed this was the case then, though
clause 4.6 of Collective Agreement 1 of 2008, which
was in force with
effect from 1 April 2008, did require a certificate of outcome to be
issued. Had the second respondent applied
the provisions of
Collective Agreement 1 of 2008, he would have found that he did not
have jurisdiction to arbitrate the dispute
in the absence of a
certificate of outcome being issued. This was not raised as a
ground of review however it is evident
from the record of proceedings
that it was a matter that was raised and dealt with prior to making a
determination over the ruling
of bar under review. This is my
view demonstrates the degree to which the application of the
incorrect dispute resolution
procedure impacted on the proceedings.
[64]
As I have stated above, if the correctness test does not apply it is
my view on the application of a reasonable decision-maker
test that
the ruling barring the applicant from defending the matter was one
that a reasonable decision-maker could not have reached.
The
second respondent:
(a)
exceeded his powers by making a ruling that he was not empowered to
make under the dispute procedure
collective agreement that applied;
(b)
did not apply the legal principles applicable to the effective date
of application of procedural amendments
to the dispute resolution
collective agreement;
(c)
As a result of the application of the incorrect dispute procedure
collective agreement, the second respondent
misdirected himself in
determining the material legal issues that he was required to
determine being:
(i)
Whether he had jurisdiction to arbitrate the dispute in the absence
of a certificate of outcome; and
(ii)
Whether the applicant was required to file a statement of defence at
the time the matter came before him thereby empowering
him to make a
ruling barring the applicant from defending the matter.
[65]
The above constituted gross irregularities in the proceedings that
impacted on the outcome to such an extent that the result
was one
that no reasonable decision-maker could have reached.
[66]
In my view the findings made above is sufficient to grant the relief
sought by the applicant. The second respondent’s
reliance on
the incorrect dispute procedure collective agreement materially
impacted on his assessment of the issues placed before
him to
determine which resulted in a conclusion which was not reasonable to
justify.
[67]
Notwithstanding the view I have expressed above, I intend to deal
with my findings on the grounds of review concerning the
existence of
a prior ruling and adjournment below. I proceed to do so for the sake
of completeness and for the purpose of making
a determination, as
sought by the parties, on issues which the parties have been in
dispute over for a considerable period of time.
The
existence of a prior ruling
[68]
The applicant submits that the first respondent committed a gross
irregularity in the manner in which he approached and evaluated
Commissioner Maepe’s ruling. Had the second respondent
conducted a proper assessment of Commissioner Maepe’s
rulings
he would have found that the applicant’s application for
condonation had not been determined and accordingly that
the
applicant was not barred from defending the matter.
[69]
Commissioner Maepe’s ruling dated 16 April 2004, reflects that
he had mistaken the applicant’s application for
condonation for
the late filing of its statement of defence as an application brought
by the applicant to condone the late filing
of its opposition to the
first respondent’s application for condonation.
[70]
It is sufficiently clear from the written reasons provided regarding
which applications Commissioner Maepe believed
he was dealing with.
The following extracts of the ruling are relevant:
‘
On
the 15
th
November 2003 an application for condonation of the late filing of a
dismissal dispute was made to the Council…
Council
informed the respondent of
this
application and that respondent
must submit its response within ten days of receipt of the
application. A copy of this letter
was also received by the
applicant’s attorneys on 2 December 2003.
Respondent’s
reply to the condonation application
was
received on 19 January 2004…
In
this regard the duty to reply within ten days
to
the applicant’s condonation application
rested
with the respondent who failed to do so within the stipulated time. I
do not find the respondent’s grounds for delay
sufficient and
satisfactory and condonation must accordingly fail.’
[29]
(own
emphasis).
[71]
In this ruling Commissioner Maepe denied condonation but without
specific reference to either party. It is clear that Commissioner
Maepe, in determining whether to grant the first respondent’s
application for condonation, first sought to establish whether
the
applicant had a satisfactory explanation for not timeously opposing
the first respondent’s application for condonation.
[72]
It is not surprising that the first respondent’s attorneys
reacted by querying the ruling which led to the variation
ruling
being issued. A record of the query that led to the issuing of the
variation ruling appears in the record,
[30]
yet the third respondent’s representative submitted to the
second respondent that it was a mystery to him as to why it was
put
before Commissioner Maepe on 9 May 2004.
[31]
It was not a mystery at all, the first respondent’s attorneys
queried the ruling for the obvious reason that there was only
one
application for condonation by the first respondent for the late
referral. It was not in dispute between the applicant
and first
respondent at any stage during this matter that the applicant did not
oppose the first respondent’s application
for condonation for
the late referral.
[73]
The variation ruling issued by Commissioner Maepe on 9 May 2004
sought to clarify his earlier ruling. If it was not varied
then
what it meant, despite the reasons given, was that the first
respondent’s application for condonation was denied, amounting
to the end of the road for the first respondent, unless the ruling
was set aside by this Court.
[74]
When the variation ruling was issued on 9 May 2004, Commissioner
Maepe was clearly under the same misunderstanding. Once again
he
records the following:
‘
On
the 15th November 2003 an application for condonation of the late
filing of a dismissal dispute was made to the Council…
Council
informed the respondent of
this
application and that
respondent must submit its response within ten days of receipt of the
application. A copy of this letter
was also received by the
applicant’s attorneys on 2 December 2003…
Respondent’s
reply to the condonation application
was
received on 19 January 2004.
In
this regard the duty to reply within ten days
to
the applicant’s condonation application
rested
with the respondent who failed to do so within the stipulated time. I
do not find the respondent’s grounds for delay
sufficient and
satisfactory and condonation must accordingly fail.’
[32]
(own
emphasis).
[75]
Commissioner Maepe still mistakenly viewed the applicant’s
application for condonation for the late delivery of its statement
of
defence as the applicant’s application for condonation for the
late delivery of its opposition to the first respondent’s
application for condonation.
[76]
This is made expressly clear by the following words which immediately
precede the ruling made on 9 May 2004:
‘
I
do not find the respondent’s grounds for delay sufficient and
satisfactory and condonation must accordingly fail. Under
the
circumstances the applicant’s application for condonation for
the late referral of his dispute stands
unopposed
and accordingly the following
rulings are made:
Ruling
The
respondent’s application for condonation is denied.
The
applicant’s application for condonation is granted.’(own
emphasis)
[77]
The above makes it patently clear that Commissioner Maepe, at no
stage considered and made a determination on the applicant’s
application for condonation for the late filing of its statement of
defence. What occurred is that he considered an application
that did
not exist. A ruling made on an application that did not exist and to
which the Commissioner did not apply his mind has
no effect on future
proceedings. The fact that the applicant did not make an application
to oppose the first respondent’s
application for condonation is
common cause between the parties. The first respondent’s
attorneys emphasised this in a letter
dated 12 November 2004.
[78]
In addition, the reference to the letter from the third respondent to
which Commissioner Maepe refers is also material to assess
the
application that Commissioner Maepe was determining. In that letter
the third respondent states the following:
‘
We
have received an application for condonation from the applicant and
are now awaiting your response.
As
the respondent, you may oppose the application for condonation by
serving an answering affidavit on the referring party and the
Council
within ten working days of the date of referral…’
[33]
[79]
The response referred to in the above letter is unequivocally a
notice to the other party notifying it of an application for
condonation and reminding the other party that it has the opportunity
to oppose the application for condonation.
[80]
The applicant’s application for condonation for the late
delivery of its statement of case was misconstrued by Commissioner
Maepe as an application for condonation for late delivery of the
applicant’s opposition to the first respondent’s
application for condonation.
[81]
It appears clear within this context that, when Commissioner
Maepe considered the applicant’s explanation for delay
and
denied condonation to the applicant, that he did so in the context of
determining the first respondent’s application
for condonation
for the late referral. He makes reference to the applicant’s
explanation for delay in the context of considering
whether to
condone what he perceived as the applicant’s application for
condonation for its late opposition to the first
respondent’s
application for condonation.
[82]
In my view the above is reinforced by the reasons given for issuing
the rescission ruling on 3 December 2004. Commissioner
Maepe
specifically explains the context within which he considered the
applicant’s explanation for delay. He explained that
it was
relevant to make an informed decision. He immediately thereafter
confirms that the first respondent’s application
for
condonation was unopposed. A consideration of the applicant’s
application for condonation for the late delivery
of its statement
case has no bearing on making an informed decision on whether the
first respondent’s application for condonation
was should be
approached as opposed or not. It follows, that the applicant’s
application for condonation for the late delivery
of its statement of
defence was not determined.
[83]
The wording below appears in Commissioner Maepe’s rescission
ruling dated 3 December 2004 and once again makes it clear
that
construed the applicant’s papers received on 19 January 2004,
as the applicant’s late reply to the first respondent’s
application for condonation.
‘…
respondent’s
reply to the condonation application was received on the 19 January
2004 some 18 days later, that this gave the
impression that the
applicant’s condonation application was opposed.
I
have to clarify the reference to the above is made to show the degree
of lateness which is necessary to make an informed decision.
It
is indeed correct that the unopposed applicant’s condonation
should be heard by the arbitrator chosen to preside over
the case and
it on these grounds that the condonation ruling of 9 May 2004 is
rescind to enable the process to be taken further..’
[84]
It could not be clearer in my view that Commissioner Maepe did not
apply his mind nor make a ruling on the applicant’s
application
for condonation for the late filing of its statement of defence.
[85]
In any event, the ruling issued on 3 December 2004 rescinded
Commissioner Maepe’s ruling dated 9 May 2004. In my view,
any
debate as to whether Commissioner Maepe made a determination on the
applicant’s application for condonation for the late
delivery
of its statement of defence in his ruling of 9 May 2004, is put to an
end by virtue of the rescission of this ruling.
[86]
The first respondent’s contention is that one has to read into
Commissioner Maepe’s ruling dated 3 December 2003
that he only
rescinded the first respondent’s condonation ruling but the
ruling refusing condonation to the applicant recorded
in his ruling 9
May 2004 stood. There is no merit to this in my view based on a
proper assessment of the rulings, the context
within which the
rulings were made and the common cause fact between the parties that
the applicant did not oppose the first respondent’s
application
for condonation.
[87]
The respondent contends that commissioner Maepe’s ruling must
be interpreted in the context of the communication dated
12 November
2004.
[88]
What is quite alarming about the first respondent’s argument is
that this communication in fact does not support the
argument which
the first respondent has subsequently elected to persist with since
Commissioner Maepe issued the ruling rescinding
the ruling of 9 May
2004.
[89]
The relevant extracts of the communication are highlighted below:
‘
It
should be noted that the Honourable A E Maepe ought not to have ruled
on the applicant’s condonation application because
Clause 6.4
of the dispute procedure provided that where the application for
condonation is unopposed it must be heard by the arbitrator
appointed
to hear the main dispute at the commencement of the proceedings.
The
difficulty facing all parties to the arbitration proceedings is that
there appears to be some ambiguity in the nature and extent
of the
condonation rulings by the Honourable A E Maepe. Whereas it is
unequivocal from the application itself that the respondent
sought
condonation for the late filing of the statement of defence and that
this application was opposed by the applicant, then
Honourable A E
Maepe in paragraph 3 of his ruling under the heading “
DETAILS
OF THE APPLICATION”
states:
“
Respondent’s
reply to the condonation application was received on the 19 January
2004 some 18 days later”
This
paragraph allows for the interpretation that the documents submitted
by the respondents were understood by the Honourable Arbitrator
to
constitute a reply to the previous condonation application by the
Applicant. This paragraph appears in both rulings.
Clearly
the Respondent’s application for condonation did not constitute
a reply to the Applicant’s previous application
for condonation
and was never intended to constitute such a reply…
In
the unlikely event that Honourable A E Maepe did misunderstand the
nature of the application for condonation and dealt with it
as a
reply to the Applicant’s previous application for condonation,
it will follow that the Respondent’s application
for
condonation for the late filing of the Statement of Defence has not
been adjudicated upon…
Clause
6.1 read with Clauses 6.3, 6.4 and 6.5 of the Dispute Procedure
requires that where any time limit is not complied with,
condonation
must be sought. If the condonation is opposed it must be
adjudicated separately before the commencement of the
arbitration.’
[90]
The consequence of the query was the rescission ruling which
rescinded the ruling of 9 May 2004 thereby clearing the slate
for the
parties to pursue the matter further.
[91]
The first respondent’s interpretations of the rulings also
cannot be sustained because it is common cause that the first
respondent’s application for condonation only came up for
determination before Commissioner Van der Merwe on 25 February
2009,
approximately four years thereafter. Any ruling on an
application for condonation for the late filing of a statement
of
defence could only stand if it was issued thereafter. As I have
found above, as at 2009 the requirement for the applicant
to file a
statement of defence did not exist. Under these circumstances, the
interpretation that only part of the ruling of 9 May
2004 was
rescinded and part stood was based on the first respondent’s
submission that certain extracts of the dated 12 November
2004, which
suited the first respondent, be read into the ruling.
[92]
The above in any event is at odds with the first respondent’s
argument because the letter relied upon is not a model
of clarity
that allows for only one interpretation, that only the first
respondent’s application for condonation was rescinded.
This was not the case. To the contrary, the third respondent states
in the same communication that one of the possibilities is
that the
applicant’s application for condonation for the late filing of
its statement of defence had not been dealt with.
[93]
Under these circumstances, had the commissioner issued a ruling
denying the applicant condonation for the late filing of its
statement of defence and intended for that part of his ruling of 9
May 2004 to stand then that would have been stated. It was not.
In
fact, Commissioner Maepe stood by his initial ruling and restated in
his rescission ruling that his reference to the applicant’s
reply to the first respondent’s application for condonation was
taken into account to make an informed decision on whether
the first
respondent’s application for condonation was opposed or not.
[94]
This being the case, it was incorrect based on the objective facts,
for the second respondent to find that Commissioner Maepe
had made a
ruling denying the applicant condonation for the late filing of its
statement of defence and that he had no choice but
to approach his
determination on this basis.
[95]
A gross irregularity was committed by the failure to properly analyse
Commissioner Maepe’s rulings and by accepting the
first
respondent’s interpretation of the rulings.
[96]
Ultimately, it is clear from a thorough assessment of the rulings
that no ruling was made denying the applicant condonation
for the
late delivery of its statement of defence. A ruling was made by
Commissioner Maepe concerning an application that was not
in
existence. That ruling did not dispose of the applicant’s
application for condonation for the late filing of its defence
because Commissioner Maepe did not apply his mind to such an
application and did not make a ruling on that application. In any
event, Commissioner Mape rescinded his ruling of 9 May 2004 which
included the ruling he made over what he considered to be the
applicant’s application for condonation for the late filing of
opposing papers.
The
adjournment
[97]
The second respondent records in the Award that even if he is wrong
in his ruling barring the applicant from defending the
matter he
would have refused an adjournment and proceeded with the arbitration.
I am not convinced that this can be dealt with
as a ruling on an
adjournment after the ruling barring the party from participating in
the arbitration proceedings was issued.
The obvious impact is that
the applicant had no capacity to bring the application for
adjournment, if it was barred.
[98]
Be that as it may, given the inordinate delays in this matter the
approach I take is that it would not serve the interests
of justice
to leave this issue undetermined. I accordingly proceed to determine
this issue as if a ruling refusing an adjournment
had been issued by
the second respondent.
[99]
In
Carephone
(Pty) Ltd v Marcus NO and others
[34]
the trite principle that a postponement is an indulgence, and not a
right, was upheld. A commissioner exercises a discretion when
determining an application for a postponement. The question to be
considered by a reviewing court is whether or not a commissioner
exercised his/her discretion properly.
[35]
‘
[54]
In a court of law the granting of an application for postponement is
not a matter of right. It is an indulgence granted by
the court to a
litigant in the exercise of a judicial discretion. What is normally
required is a reasonable explanation for the
need to postpone and the
capability of an appropriate costs order to nullify the opposing
party's prejudice or potential prejudice.
Interference on appeal in a
matter involving the lower court's exercise of a discretion will
follow only if it is concluded that
the discretion was not judicially
exercised’.
[36]
‘
[55]
There are at least three reasons why the approach to applications for
postponements in arbitration proceedings under the auspices
of the
Commission under the LRA is not necessarily on a par with that in
courts of law. The first is that arbitration proceedings
must be
structured to deal with a dispute fairly and quickly (section
138(1)). Secondly, it must be done with "the minimum
of legal
formalities" (section 138(1)). And thirdly, the possibility of
making costs orders to counter prejudice in good faith
postponement
applications is severely restricted (section 138(10)).’
[100]
The Labour Appeal Court held in
Carephone
[37]
that
there was sufficient material before the Commissioner to justify the
refusal to postpone. Further that there had been proper
consideration
given to prejudice.
[101]
There are two main reasons proffered by the second respondent for
denying an adjournment:
(a)
The matter had been outstanding for a very
long period of time;
(b)
The reasons tendered by the applicant for
not attending prepared to continue with the matter were not
acceptable given the lengthy
delays.
[102]
Although the second respondent enjoyed a wide discretion it remained
a discretion that was required to be exercised judicially
on a
consideration of all the facts and taking into account the prejudice
that would be suffered if an adjournment would not be
granted. In my
view the second respondent did not exercise his discretion judicially
on a consideration of the all the facts.
[103]
It appears that this conclusion was arrived at hastily and
fundamentally influenced by the duration of time that had lapsed
from
the date of referral to the date the matter came before him.
[104]
The circumstances surrounding this matter were extraordinary. The
applicant’s lack of preparation was evident however
the
extraordinary background could not be entirely disregarded.
Factually, the point over the status of the applicant to defend
the
matter had not been resolved. It was an issue that remained
outstanding to be determined afresh according to the ruling issued
by
Commissioner Lisa Williams-De Beer.
[105]
On a close examination of the record it is apparent that all the
delays were not occasioned solely by the applicant. On a
number of
occasions the matter had to be postponed due to the non-availability
of the first respondent’s counsel. Further
delays were
occasioned due to the first respondent’s persistence with the
point over the applicant’s capacity to defend
the proceedings.
[106]
The second respondent acknowledges this in his Award:
‘
It
is very difficult to judge to what extent the applicant was
responsible for the delays that occurred. In my view it would be
fair
to find that the parties were equally responsible for the delays.
It would be fair to the parties to order that the
reinstatement
operate retrospectively for half of the five years and eight months
period referred to in the preceding paragraph’
[107]
No proper consideration was given to the factor of prejudice to be
suffered. The second respondent’s primary focus was
the long
delay.
[108]
In summary, it is my view that the second respondent did not exercise
his discretion judicially for the following reasons:
a)
unreasonable weight was placed on the issue
of delays on the erroneous premise that the delays were the fault of
applicant;
b)
insufficient weight was given to
extraordinary factual history of the matter and the complexity of the
point in limine
that was required to be determined. The applicant could not have
known what its status was until a determination was made;
c)
an assessment of the prejudice to be
suffered by the applicant weighed against the prejudice to be
suffered by the first respondent
was not properly conducted.
Costs
[109]
The applicant sought costs to be awarded in its favour.
[110]
I do not think that it is appropriate to make an adverse costs order
against the first respondent for costs. The review application
was
not prosecuted diligently. The record in this matter was voluminous
and very poorly complied. There was no chronological order
to the
record, numerous repetitions and vast portions of record that were
not relevant to the issues called upon for determination.
It was very
challenging to study the records and to locate the material records
relevant to determine this application.
[111]
Apart from the above, it is not appropriate to grant a costs order in
this matter having regard to:
(a)
the grounds upon which this application for review succeeds;
(b)
the fact that this is not the end of the road for either party
in
that the merits of the dismissal dispute still needs to be
determined; and
(c)
there exists the potential that the parties may have a future
relationship.
Order
1.
The application to review and set aside the
Award is granted.
2.
The matter is remitted to the third
respondent for arbitration on the merits
de
novo,
before a commissioner other than
the second respondent.
3.
No order is granted as to costs.
___________________
M
Naidoo, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Advocate L Naidoo
Instructed
by:
The State Attorney
For the First
Respondent:
V Singh
Viren
Singh and Company
[1]
Pleadings,
Volume 1 pages 80-92
[2]
Record,
Bundle A - Volume 5 pages 441-449
[3]
Pleadings,
Volume 1 page 17
[4]
Record,
Bundle A-Volume 5 pages 436-439
[5]
Pleadings,
Volume 1 page 20
[6]
Pleadings,
Volume 1 page 21
[7]
Record,
Bundle A -Volume 4 pages 376-380
[8]
Record,
Bundle A-Volume 4 page 407
[9]
Record,
Bundle A-Volume 6 pages 531-532
[10]
Record,
Bundle A-Volume 4 page 396
[11]
Record,
Bundle
A, Volume 4 at page 311
[12]
Record,
Bundle
A, Volume 4 at page 323
[13]
Pleadings,
Bundle A-Volume 1 pages 96-100
[14]
Pleadings,
Bundle A-Volume 2 pages 110-146
[15]
(2000)
21 ILJ 1976 (LC).
[16]
[2014]
JOL 32513 (LAC)
[17]
[2008]
JOL 21862 (LAC)
[18]
Pleadings,
Volume 1 pages 16-17
[19]
Record,
Bundle B transcript pages 9-10
[20]
Pleadings,
Volume 1 page 16 at paragraph 32
[21]
Record,
Bundle A page 106
[22]
Record,
Bundle B Transcript at pages 10-13
[23]
Record,
Bundle B Transcript at page 13
[24]
Pleadings,
Volume 1 at page 16 paragraph 32
[25]
Bundle
B, Transcript page 10
[26]
Van
Schalkwyk v Spoornet
[2000]
21 ILJ 21 ILJ 1876
[27]
Fredericks
and others v MEC for Education and Training and others
[2001]
JOL 9225 (CC)
[28]
Bundle
A, Volume 5 at page 442
[29]
Pleadings,
Volume 1 pages 17-18
[30]
Bundle
A, Volume 5 page 424
[31]
Bundle
B, Transcript at page 3 lines 15-16
[32]
Record,
Bundle A Volume 2 pages 144-145
[33]
Record,
Bundle A Volume 5 at page 435
[34]
[1998]
11 BLLR 1093 (LAC)
[35]
[1998]
8 BLLR 872 (LC)
[36]
See
Madnitsky
v Rosenberg
1949
(2) SA 392
(A) at 398-399
[37]
Paragraph
57