About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2015
>>
[2015] ZALCD 42
|
|
Misty Blue Trading 286 CC v National Bargaining Council for the Road Freight And Logistics Industry and Others (D861/13) [2015] ZALCD 42 (29 July 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D861/13
DATE: 29 JULY
2015
Not Reportable
In the matter
between:
MISTY BLUE
TRADING 286
CC
......................................................................................
Applicant
And
NATIONAL
BARGAINING COUNCIL FOR THE
ROAD FREIGHT AND
LOGISTICS
INDUSTRY
...............................................
First
Respondent
WAYNE STEPHENS
N.O
...................................................................................
Second
Respondent
M.
THWALA
...............................................................................................................
Third
Respondent
N.S.
MKHWANAZI
..................................................................................................
Fourth
Respondent
M.G.
MDINGI
..............................................................................................................
Fifth
Respondent
S.M.MABELE
..............................................................................................................
Sixth
Respondent
J.R.
MNIKATHI
......................................................................................................
Seventh
Respondent
M.S.
DLAMINI
............................................................................................................
Eight
Respondent
Heard:
8 January 2015
Delivered:
29 July 2015
Summary:
Review application – arbitration hearing proceeding in the
absence of the applicant after applying for postponement
but before
pronouncement thereon – all grounds of review to be
foreshadowed in the founding affidavit – applicability
of s 62
(3) of the Labour Relations Act.
JUDGMENT
MGAGA AJ
Introduction
[1]
This is an application in terms of s 145 of the Labour Relations
Act
[1]
to review and set aside
an enforcement arbitration award (“the arbitration award’)
dated 31 January 2013 issued by
the second respondent under the
auspices of the first respondent. In the arbitration award the second
respondent had ordered the
applicant to comply with the first
respondent’s collective agreement(s) by paying various amounts
and levies totaling R233 239.93.
The applicant has also applied
for condonation for the late filing of the review application. The
condonation application is incorporated
in the founding affidavit of
the review application. Both the review and condonation applications
are opposed by the respondents,
except the second respondent who
abides by the Court’s decision.
[2]
The first respondent is a bargaining council established under the
LRA for the road freight and logistics industry. It is, as
such
responsible for the enforcement of compliance with its own collective
agreements. The first respondent’s collective
agreements are
obviously binding on the parties thereto. However, in terms of s 32
of the LRA the first respondent’s collective
agreements can be
extended to non-parties who are operating within the registered scope
of the first respondent. It is not disputed
that the first
respondent’s collective agreement has been duly extended to
non-parties who are operating within its registered
scope
[2]
which includes “the hiring out by temporary employment services
of employees for activities or operations which ordinarily
fall
within the transportation or storage of goods”.
[3]
[3]
The applicant is a Close Corporation which conducts business as a
temporary employment service provider. One of the applicant’s
clients is Aqua Transport & Plant Hire (Pty) Ltd (“Aqua
Transport”). According to the applicant Aqua Transport
is
involved in the construction, not transport industry, despite its
name which suggests otherwise. The respondents claim that
the
applicant is operating within the scope of the first respondent and
it is bound by the collective agreement by virtue of the
extension
thereof to non-parties.
[4]
The third to eight respondents are drivers of heavy duty vehicles who
are or were employed by the applicant and hired out to
Aqua
Transport. According to these respondents at Aqua Transport they were
driving vehicles transporting goods and products such
as chemicals;
cooking oil; crude oil; sand; quarry and water to many destinations
throughout South Africa.
[4]
Salient
background facts
[5]
Following a claim by the third to eight respondents emanating from
the applicant’s failure to pay certain monies and levies
prescribed by the collective agreement the first respondent issued a
compliance order against the applicant in terms of s 33A (3)
of the
LRA.
[5]
The compliance order
which was apparently served on the applicant on 31 May 2012 required
the applicant to pay at the time a sum
of R86 985.99 to the
first respondent within 14 days from the receipt thereof. It also
provided the applicant with an opportunity
to object by submitting
representations within 14 days. It is common cause that the applicant
did not file any objection and neither
did it comply with the
compliance order.
[6]
The first respondent referred the applicant’s non-compliance
with the compliance order to arbitration which was subsequently
set
down for 29 November 2012. The notice of arbitration was served on
the applicant via telefax on 9 November 2012.
[7]
On 16 November 2012 the applicant wrote to the first respondent
requesting a postponement of arbitration on the basis that the
applicant was “extremely busy” with its December
shutdown. Unsurprisingly, on 20 November 2012 the first respondent
notified the applicant in writing that its request for postponement
had been declined.
[6]
[8]
The arbitration hearing took place as scheduled on 29 November 2012.
The applicant was represented by its Human Resources Manager
Mr
Poobalan Govender (“Govender”)
[7]
who is also a deponent to the applicant’s founding affidavit
and replying affidavits. The first respondent was represented
by its
designated agent Ms. S. Sabela. What actually took place at the
arbitration hearing is in dispute and will be dealt with
more fully
below.
[9]
The second respondent issued the arbitration award on 31 January
2013. There is no indication that the arbitration award was
duly
served on the applicant.
[10]
On 27 June 2013 the first respondent served on the applicant an
application to make the arbitration award an order of this
Court in
terms of s 158 (1) (c) of the LRA. The arbitration award was
apparently attached to the s 158 (1) (c) application papers.
[11]
On 23 July 2013 the applicant brought an application before the CCMA
to rescind the arbitration award. It is not clear why
the rescission
application was brought before the CCMA whereas the arbitration award
was issued by the second respondent under
the auspices of the first
respondent.
[12]
On 19 August 2013 the applicant was courteously advised in writing by
the first respondent’s attorneys that the rescission
application was an incorrect process to challenge the arbitration
award. The applicant wisely accepted the advice because on 12
September 2013 it delivered this review application. The founding
affidavit in support of the review application was apparently
signed
before the commissioner of oaths on 22 August 2013
[8]
and the notice of motion is dated 6 September 2013.
The
condonation application
[13]
From the sequence of events outlined above, in particular paragraphs
[9] to [12], it is clear that the review application was
filed out of
time by about five weeks from the date the applicant became aware of
same i.e. 27 June 2013 which is the date on which
the s 158 (1) (c)
application was served on the applicant.
[14]
The length of the period of delay (five weeks) is not insignificant
but it is also not excessively long having regard to the
circumstances of this case. The Court finds the applicant’s
explanation for the delay to be reasonable and acceptable. There
is
nothing to gainsay the applicant’s allegation that the
arbitration award was not served on it as it was supposed to be.
It
first became aware of the arbitration award when it received the s
158 (1) (c) application. The applicant’s knee-jerk
reaction,
less than a month thereafter, was to apply for the rescission of the
arbitration award. Despite the defectiveness of
that rescission
application, it is an indication that the applicant took steps within
a reasonable period to challenge the arbitration
award. When the
applicant was correctly advised by the first respondent’s
attorneys that its rescission application was ill-advised
and doomed
to fail, it candidly accepted the advice and brought this review
application within a reasonable period of time after
receiving the
advice.
[15]
It is trite that the applicant’s prospect of success in the
review application remains an important consideration in
the
condonation application. But it is not necessarily decisive in every
case. Despite the negative view I take of the applicant’s
prospect of success in the review application, as it will appear
later in this judgment, I am of the view that condonation ought
to be
granted mainly because the period of delay is not excessively long
and the applicant has provided a reasonable and acceptable
explanation for the delay.
[16]
Therefore the condonation for the late filing of the review
application will be granted. I now turn to deal with the merits
and
demerits of the review application.
The
review application
[17]
In the applicant’s founding affidavit Govender confirms that he
attended the arbitration hearing on 29 November 2012
on behalf of the
applicant. He further states that he informed the second respondent
that he was applying for postponement because
the applicant had a
similar matter pending at a bargaining council in Johannesburg. The
Johannesburg matter involving one employee
had been set down for 13
December 2012
[9]
and the
applicant had already instructed a labour law specialist to represent
it. Govender reasoned that a ruling in the Johannesburg
matter would
have enabled the applicant to properly assess its options regarding
the Durban matter.
[18]
Govender further states that:
“
[The
second respondent] thanked me and advised us that he will come back
with a decision. I accordingly believed that he had agreed
to adjourn
the matter and I left the hearing. To my knowledge and belief the
hearing was not going to proceed any further on that
day.”
[10]
In
so far as the ground of review is concerned, Govender concludes by
stating that:
“
I
submit that the Second Respondent has clearly committed a gross
irregularity
in
proceeding with the hearing and making a decision in my absence,
without warning me that he would do so
.”
[11]
(My emphasis)
[19]
Both Ms. Sabela, who represented the first respondent at the
arbitration hearing, and the second respondent deny that Govender
applied for postponement on behalf of the applicant on 29 November
2012.
[12]
Indeed there is
nothing recorded in the arbitration award which suggests that there
was an application for postponement and the
ruling thereon. The
applicant has not placed before this Court a transcript of the
arbitration proceedings which could have shared
more light on this
issue.
Evaluation
[20]
Ms.
Allen
,
who appeared on behalf of the applicant, readily admitted that there
is a clear irreconcilable dispute of facts on the papers.
[13]
It follows that the application of the well-known
Plascon-Evans
rule
[14]
is against the applicant.
[21]
Even if Govender’s version were to be accepted as more probable
on the basis that the arbitration award makes reference
to the first
respondent’s submissions only, this Court is of the view that
the applicant has only itself to blame for the
continuation of the
arbitration hearing in its absence.
[22]
On Govender’s own version, when he left the proceedings on 29
November 2012 the second respondent had not yet pronounced
on his
postponement application. There is no justification whatsoever for
Govender’s assumption and belief that the postponement
had been
granted. More so, because the applicant’s first timeous and
written postponement application had already been rejected
by the
first respondent. The second application was on more shaky grounds
than the first application, both procedurally and substantively.
[23]
According to Govender the second respondent indicated that he would
come back with a decision about the postponement application.
It is
probable that the second respondent could have stood the matter down
in order to consider the postponement application. At
the very least
Govender had to ascertain the fate of the postponement application
before he decided to up and leave. His failure
to do so was at the
applicant’s peril and there is no irregularity committed by the
second respondent in this regard.
[24]
In
Steelcor
(Pty) Ltd v Mokwena NO and others
[15]
Snyman
AJ had the following to say about the practical application of the
review test:
“
[21]
In my view, and with the view to encapsulate a practical application
of the review test in line with the principles set out
above, the
first step in a review enquiry is to consider or determine if an
irregularity indeed exists where it comes to the arbitration
award or
the arbitration proceedings.
…
Once
an irregularity is identified, the materiality of the irregularity
then becomes relevant and must be considered.
…
If
the review court in conducting this first step enquiry should find
that no irregularity exists in the first instance, the matter
is at
an end, no further determinations need to be made, and the review
must fail.”
[25]
On the basis of the above evaluation this review application ought to
be dismissed. However, in its heads of argument the applicant
raised
two issues masquerading as additional grounds of review i.e.:
25.1
“Whether or not the First Respondent, as a matter of fact, had
the requisite jurisdiction to determine the dispute; and,
if so,
25.2
Whether there was sufficient evidence before the Second Respondent
upon which he could rationally have concluded that the Applicant
was
obliged to comply with the compliance orders which had been the
subject matter of the arbitration.”
[26]
Ms.
Allen
submitted that the first respondent did not have
jurisdiction to arbitrate the dispute because the applicant is not
bound by the
first respondent’s collective agreement. In the
alternative, she submitted that no reasonable decision maker could
have arrived
at the decision arrived at by the second respondent on
the evidence before him. I do not agree with both contentions.
[27]
The applicant’s first insurmountable hurdle is that these
additional grounds of review were not raised in its founding
affidavit. As indicated above, the applicant relied only on one
ground of review i.e. the contention that the second respondent
proceeded with the arbitration hearing and made a decision in its
absence without warning the applicant that he would do so.
[28]
It is trite that the applicant’s case should be made out in its
founding affidavit. In
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & Others
[16]
Zondo JP as he then was, put it thus:
…“
Accordingly,
a party which brings a review application is bound by the grounds of
review set out in his founding papers. He cannot
in oral argument
argue on the basis of different grounds of review except if such
ground can be said to be apparent from the review
application. In
this case the applicant does not pursue the grounds of review
contained in the founding affidavit but seeks to
argue the case on
the basis of grounds which are nowhere to be found in the review
application. The grounds it seeks to pursue
are not grounds of review
that can be said to be apparent from its review application. That
cannot be allowed.”
[17]
[29]
In any event, in terms of s 33A of the LRA, in particular s 33A (4)
(a) thereof, the first respondent does have jurisdiction
to arbitrate
any unresolved dispute concerning compliance with any provision of
its collective agreement. In this case the first
respondent had
issued a compliance order against the applicant alleging that it had
“not complied with the indicated clauses
of Council’s
Collective Agreement”.
[18]
The statement of contraventions refers to the main collective
agreement and that it has been extended to non-parties by various
published government notices.
[19]
If the applicant was of the view that it was not bound by the first
respondent’s collective agreement it was entitled to
lodge an
objection within 14 days of the receipt of the compliance order. Such
objection could have triggered a demarcation dispute
envisaged in s
62 (3A). In its wisdom the applicant did not lodge an objection,
neither did it refer a demarcation dispute to the
CCMA.
[30]
Before the second respondent there was nothing to suggest that the
first respondent did not have jurisdiction to arbitrate
the dispute
about the applicant’s non-compliance with the compliance order.
It is axiomatic that the compliance order would
have been issued on
the basis that the applicant was bound by the first respondent’s
collective agreement based on the extension
thereof to non-parties.
In the absence of any submissions or evidence to the contrary and the
applicant’s failure to justify
its non-compliance with the
compliance order the second respondent’s decision was probably
correct, if not, at the very least,
such decision fell within the
range of reasonableness.
[31]
The only issue that remains for determination is whether s 62 (3),
read with s 62 (1) of the LRA finds application in this
case, as
submitted by Ms.
Allen
during the hearing of this matter. It
is important to reproduce s 62 (3) in full:
“
(3)
In any proceedings in terms of this Act before the Labour Court, if a
question contemplated in subsection (1) (a) or (b) is
raised, the
Labour Court must adjourn those proceedings and refer the question to
the Commission for determination if the Court
is satisfied that –
(a)
the question raised-
(i)
has not previously been determined by arbitration in terms of this
section; and
(ii)
is not the subject of an agreement in terms of subsection (2); and
(b)
the determination of the question raised is necessary for the purpose
of the proceedings.”
[32]
It is clear that both requirements (a) and (b) must be met. Put
differently, the Court must be satisfied that the question
raised has
not previously been determined by arbitration and is not the subject
of an agreement in terms of subsection (2) [requirement
(a)], and
that the determination of the question raised is necessary for the
purpose of the proceedings [requirement (b)].
[33]
I am satisfied that the phrase ‘in any proceedings in terms of
this Act’ is wide enough to include review proceedings
before
the Labour Court. However, regarding the first requirement, I have
difficulty in comprehending how can the question contemplated
in
subsection (1) (a) or (b) be properly raised for the first time in
the review proceedings when it was not raised before the
second
respondent and the applicant has not even referred a demarcation
dispute to the CCMA for determination. In
Building
Industry Bargaining Council (East London) v Naidoo t/a Dev’s
Construction Trust & another
[20]
the following was said:
“
I
am enjoined by s 62 (3) when a demarcation is raised to adjourn these
proceedings and refer the matter to the CCMA for determination.
However, I agree with applicants this means properly and genuinely
raised. For it to have been properly raised the basis for the
defence
should have been laid at the outset…”
Nevertheless,
due to the view I take regarding the second requirement it is not
necessary for me to decide whether this first requirement
has been
met.
[34]
Requirement (b) requires that the determination of the question
contemplated in subsection (1) (a) or (b) must be necessary
for the
purpose of the proceedings. This is a review application based on a
narrow ground of review as set out above. In order
to determine the
reviewability of the arbitration award this Court does not have to
decide whether the applicant is bound by the
first respondent’s
collective agreement. The issue before this Court is whether the
second respondent committed an irregularity
by proceeding with the
arbitration hearing and made a decision in the absence of the
applicant without warning it that he would
do so. The determination
of the question contemplated in subsection (1) (a) and (b) may very
well be necessary to decide whether
or not to make the arbitration
award an order of court in terms of s 158 (1) (c) but it is not
necessary to decide this review
application.
[35]
For the sake of completeness I mention that at the hearing of this
matter Mr
Mbatha
,
who appeared on behalf of the third to eight respondents, referred
this Court to the judgment of the LAC in
Johannesburg
City Park v Mphahlani NO & others
[21]
wherein Zondo JP, as he then was, held that s 62 (3A) did not find
application in that case and, therefore, the arbitrator was
not
compelled to adjourn the arbitration pending the determination of the
demarcation dispute before the CCMA. In reply Ms
Allen
correctly pointed out that that LAC judgment was overruled by the SCA
in
Johannesburg
City Park v Mphahlani NO & others.
[22]
I have considered the SCA judgment which is obviously binding on this
Court but I found it to be clearly distinguishable from this
case. In
Johannesburg
City Park
case
the applicant had written a letter to the bargaining council
objecting to its jurisdiction to arbitrate an unfair dismissal
dispute on the basis that the applicant did not fall within its
jurisdiction. A demarcation dispute was already pending before
the
CCMA. In this case, as alluded to above, the applicant did not object
to the compliance order issued by the first respondent
and at
arbitration the jurisdiction of the first respondent was never
challenged.
[36]
For the above reasons I conclude that s 62 (3) does not find
application in this case.
Conclusion
[37]
For the reasons stated above the applicant has failed to demonstrate
that the second respondent committed a reviewable irregularity
by
proceeding with the arbitration hearing in its absence. It is not
proper for the applicant to raise additional grounds of review
which
are not foreshadowed in its founding affidavit. However, even those
additional grounds of review cannot assist the applicant
in this
case. Lastly, having found that s 62 (3) of the LRA is not applicable
in this case, the applicant’s request to adjourn
these
proceedings and refer the matter to the CCMA for determination cannot
be acceded to.
[38]
With regards to the question of costs, it seems to me that it would
accord with the requirements of the law and fairness that
the
applicant should pay the respondents’ costs of opposing the
review application. The future of the review application
was bleak
from inception. The review application did not even get off the
starting blocks of proving an irregularity, let alone
a gross
irregularity envisaged in s 145 of the LRA. The hopelessness of the
review application on the grounds of review relied
upon was, in
essence, also conceded in the applicant’s heads of argument,
albeit too late.
Order
[39]
In the result I make the following order:
1.
The condonation for the late filing of the review application is
granted.
2.
The review application is dismissed with costs.
S.B.
Mgaga, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the applicant : Advocate K. Allen
Instructed
by : Naicker & Naidoo Attorneys
For
the first respondent : Attorney A.J. Prior of Prior and Prior
Attorneys
For
3
rd
to 8
th
respondents : Attorney M. Mbatha of MAS Mbatha and Company
[1]
66 of 1995 (“LRA”)
[2]
See
paragraph 7(c) of the first respondent’s answering affidavit –
Pleadings page 37.
[3]
See
the definition of “Road Freight and Logistics Industry”
in the certificate of registration dated 29 September
2010 –
Pleadings page 59.
[4]
See
third to eight respondents’ answering affidavit paras 18.6 and
19.3 – Pleadings pages 71 and 72.
[5]
See
Compliance Order – Record pages 8 to 9.
[6]
Pleadings
pages 42-43
[7]
Govender
signed the attendance register as “V. Govender” –
Record page 20.
[8]
Pleadings
page 22
[9]
The
date ‘13 December 2013’ at paragraph 16 of the founding
affidavit (Pleadings page 9) is an obvious typographical
error.
[10]
Paragraph
17 of the founding affidavit – Pleadings page 9.
[11]
Paragraph
25 of the founding affidavit – Pleadings page 12.
[12]
See
first respondent’s answering affidavit, paragraph 6, in
particular 6(e) - Pleadings page 35, and the verifying affidavits
of
the second respondent and Ms Sabela - Pleadings pages 62 to 65.
[13]
Paragraphs
4-6 of the applicant’s heads of argument.
[14]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
at
634 E – 635 C and
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
at
para [26]
[15]
(JR
812/2012) [2014] ZALCJHB 1 (17 January 2014
)
[16]
(2009)
30 ILJ 269 (LAC)
at
para 30
[17]
See
also
Northam
Platinum Ltd v FGanyago NO & Others
(2010) 31 ILJ 713 (LC) at paras. [27] to [29];
Tao
Ying Metal Industry (Pty) Ltd v Pooe NO & Others
(2007) 28 ILJ 1949 (SCA) at par. [98] and
Footwear
Trading CC v Mdlalose
(2005) 26 ILJ 443 (LAC) at par. [10].
[18]
Record
page 8
[19]
Record
page 13
[20]
(2000)
21 ILJ 2253 (LC) at para 33
[21]
[2010]
6 BLLR 585 (LAC)
[22]
(
2011)
32 ILJ 1847 (SCA)