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[2016] ZALCJHB 54
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National Commissioner of the South African Police Service v Radebe and Others (JR1279/09b) [2016] ZALCJHB 54 (9 February 2016)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1279/09b
In the matter between:
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICE
Applicant
And.
SIPHO
RADEBE
First Respondent
PUBLIC
SERVICE CO-ORDINATING
BARGAINING
COUNCIL
Second Respondent
E.
BRITZ
Third Respondent
Delivered:
9 February 2016
Summary: Review
proceedings and application for condonation for the late filing of
the review application. Condonation
application granted. A reviewable
irregularity was committed by the first respondent in adjudicating
the dispute. The first respondent
did not make his own decision in
arbitrating the dispute, he, however cut and pasted the previous
arbitration award as if it was
his own. Matter is remitted back to
the second respondent for arbitration hearing afresh before an
arbitrator other than the first
respondent. No order as to
costs.
JUDGEMENT
NGAKO, AJ
Introduction:
[1] In this application, the applicant
seeks an order in the following terms:
1.1.
Condoning the late filing of the review application.
1.2.
Setting aside on review the arbitration award dated 15 June 2009.
1.3.
That the third respondent is not entitled to the reinstatement of her
salary contrary to the
determination in the arbitration award.
1.4. In
the alternative, referring the dispute which is the subject matter of
the arbitration award
to the second respondent for arbitration afresh
by an arbitrator other than the first respondent.
1.5.
Directing that the costs of the review application be paid by any of
the respondents who oppose
the review application.
1.6.
Granting such further and/or alternative relief that the court deems
appropriate.
[2]
The review application is opposed by the third respondent.
The Condonation application
[3] On 15 June 2009, the first
respondent issued an award as follows:
‘
6.
AWARD:
Having
found the respondent to be in breach of the collective agreement in
question the applicant is entitled to full pay in terms
of
occupational injury and disease leave from the date that their pay
was suspended until such time as an inquiry determines otherwise.’
[4] The applicant alleges that it
received the award on 1 July 2009. The award was served by fax.
[5] This allegation is not disputed by
the third respondent. The third respondent only notes the contents
thereof.
[6] The review application should have
been brought on or before 12 August 2009.
[7] The review application was,
instead, brought on or about 11 September 2009. This is a delay of
almost a month, which is excessive.
[8] The third respondent had, however,
indicated that it does not oppose the application for condonation.
[9]
The main reason for the applicant’s late filing of its review
application was that there was some delay in the State Attorney’s
office in briefing counsel.
The legal principles governing
condonation applications
[10]
The legal principles governing granting or refusal of a condonation
application are well-known and had been enunciated in
Melane
v Santam Insurance Co Limited
[1]
where the following is stated:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has discretion, to be exercised judicially
upon
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 thereof, 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 cause
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 to harden the arteries of what should be a flexible
discretion. What is needed is an objective
conspectus of all 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 affidavits. I think
that all the foregoing clearly emerges from the decisions of this
Court, and therefore I
need not add to the evergrowing burden of
annotations by citing cases.’
Analysis on condonation application
[11] The explanation for the delay
given by the applicant cannot be said to be a reasonable explanation;
however, the prospects
of success, which will be dealt with later in
this judgment, compensate for the unreasonable explanation.
[12] It is for this reason that the
application for condonation should be granted.
Background facts
[13] At the time of dispute between
the parties, the third respondent was employed by South African
Police Service (“SAPS”)
as an inspector.
[14] The third respondent was absent
from duty for a considerable time as a result of an occupational
injury and disease.
[15] She was instructed by her
employer to resume her duties as her sick leave cycle was exhausted
but did not do so.
[16] Her salary was suspended by her
employer.
[17] She was not satisfied with her
employer’s decision and she referred a dispute to the second
respondent.
The arbitration award
[18] I now turn to deal with the
arbitration award which is the subject matter of the applicant’s
review application.
[19] The third respondent attached, as
annexure to her replying affidavit, an arbitration award dated 14
April 2009 by Mr Pat Stone
(“Stone”).
[20] It is clear when comparing
Stone’s arbitration award and the first respondent’s
arbitration award that the first
respondent did not at all apply his
mind to the dispute before him and in making the arbitration ward.
This is illustrated hereunder.
[21] The first respondent merely cut
and pasted the arbitration award by Stone.
[22] Paragraphs 3.1; 3.2; and 3.5 of
the first respondent’s arbitration award, under the heading
‘Background to the
issue’, are exactly the same as
paragraphs 3.1; 3.2 and 3.3 of Stone’s arbitration award.
[23] Paragraphs 4.1 -4.9 of the
respondent’s arbitration award, under the first heading
‘Analysis of evidence and argument’,
are exactly the same
as paragraphs 4.1 – 4.9 of Stone’s arbitration award.
[24] Once more paragraphs 5.1 –
5.4 of the first respondent’s arbitration award, under the
second heading ‘Analysis
of evidence and argument’, are
exactly the same as paragraphs 5.1 – 4 of Stone’s
arbitration award.
[25] No argument whatsoever was raised
by any of the parties before the first respondent regarding his or
the second respondent’s
jurisdiction to hear the matter.
[26] The first respondent clearly
never applied his mind to the dispute before the parties and he came
to an unreasonable award.
The test for review
[27]
The test to be applied in a review application under section 145 of
the LRA was enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
[2]
as
follows:
‘
The
better approach is that Section 145 is now suffused by the
constitutional standards of reasonableness. That standard is
explained
in
Bato
Star
:
is the decision reached by the Commissioner one that a reasonable
decision maker could not reach? Applying it will give effect
not only
to the Constitutional right to fair labour practices but also the
right to administrative action which is lawful, reasonable
and
procedurally fair.’
[28]
The
Sidumo
test was further explained by the Supreme Court of Appeal in
Herholdt
vs Nedbank Ltd
[3]
as follows:
‘
That
test involves the reviewing court examining the merits of the case
“in the round” by determining whether, in the
light of
the issues raised by the dispute under arbitration, the outcome
reached by the arbitrator was not one that could reasonably
be
reached on the evidence and other material properly before the
arbitrator... The reasons are still considered in order to see
how
the arbitrator reached the result. That assists the court to
determine whether that result can reasonably be reached by that
route. If not, however, the court must still consider whether apart
from those reasons, the result is one that a reasonable
decision-maker
could reach in the light of the issues and the
evidence.’
And
‘
In
summary, the position regarding the review of CCMA award is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in Section 145 (2)(a) of
the LRA. For a defect in the conduct of proceedings to amount
to a
gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the enquiry or
arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
on particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.’
[4]
[29]
The Labour Appeal Court in the matter of
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and Others
[5]
stated the following:
‘
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 at pains to state that
arbitration awards made under the Labour Relations Act (LRA) continue
to be determined in terms of s145 of the LRA but that the
constitutional standard of reasonableness is ‘suffused’
in the application of s145 of the LRA. This implies that an
application for review sort on the grounds of misconduct, gross
irregularity in the conduct of 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 gross irregularity in the
proceedings is alleged, the enquiry is not confined
to whether the
applicant misconstrued 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.’
And;
‘
In
short, A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her, evaluated the fact
presented at the hearing and came to a conclusion that is
reasonable.’
Final evaluation and analysis
[
30]
In my analysis, the first respondent has dismally failed in his
duties as an arbitrator and had, in fact, not make any decision.
[
31]
He was biased in his approach and did not afford parties, especially,
the applicant a fair hearing.
[
32]
In the matter of
Rustenburg
Platinum Mines Ltd (Bafokeng Rasimore Platinum Mine) v CCMA and
Others,
[6]
the following was stated (per Ngcamu, AJ (as he then was)):
‘
[38]
I am satisfied that the applicant apprehended that it was not given a
fair hearing as a result of the
bias of the arbitrator. In fairness
to both parties, this is a matter to be remitted to the CCMA to be
arbitrated by a commissioner
other than the second respondent. A new
commissioner would be able to come with a fresh mind, uninfluenced by
the previous hearings.‘
[39]
In the light of what I have indicated, I find that the commissioner
was bias and did not apply
her mind to the matter. The award stands
to be reviewed and remitted to the CCMA. It is not necessary for me
to deal with other
grounds for review.
[40]
I am of the view that it would be in the interest of justice and
fairness that I make no order
for costs.
[41]
The order I make is the following:
(a)
The
arbitration award issued by the second respondent dated 15 December
2004 is hereby reviewed.
(b)
The
matter is remitted to the first respondent for arbitration de novo by
another commissioner.
(c)
There
is no order for costs.’
[33] I agree with the sentiment
expressed by the Learned Acting Judge (as he then was) in the above
mentioned judgment.
[34] I am also of the view that there
is no need to deal with each and very ground raised by the applicant
as the first respondent
had committed a patently gross misconduct in
relation to his duties as an arbitrator.
Order
[35] In the circumstances, the
following order is made:
35.1 The condonation
application is granted.
35.2 The arbitration
award issued by the first respondent dated 15 June 2009 is reviewed
and set aside.
35.3 The matter is
remitted back to the second respondent to be heard afresh by an
arbitrator other than the first
respondent.
35.4
There is no order as to costs.
_________________
Ngako, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant:
Advocate M. Botma,
Instructed:
by the State Attorney.
For the Third Respondent:
Advocate L. van Rooyen –Steenkamp
Instructed
by:
Schoeman and Associates Attorneys
[1]
1962 (4) SA 531(A)
at 532C-F
[2]
2007 (12)BLLR 1097 (CC).
[3]
(2013) 11 BLLR 1074
(SCA) at para 12
per Cachalia JA
[4]
Ibid
at
para 25.
[5]
(2014) 35
ILJ
943 (LAC)
[6]
(2007) 28
ILJ
408 (LC) at paras 38-41.