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[2016] ZALCJHB 56
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Nkwanyane v Metal and Engineering Industries Bargaining Council and Others (JR1926/13) [2016] ZALCJHB 56 (16 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA HELD AT, JOHANNESBURG
JUDGEMENT
Not
Reportable
Case
no: JR1926/13
In the
matter between:
THULANI NKWANYANE
Applicant
and
METAL AND ENGINEERING
INDUSTRIES BARGAINING COUNCIL
First Respondent
LUNGILE MTIYA N.O.
Second Respondent
SEGALS METALS CC
Third Respondent
Heard:
10July 2015
Delivered:
16 February 2016
JUDGMENT
VAN AS, A
J
Introduction
[1]
This is an application
in terms of section 158(1)(g) of the Labour Relations Act 66 of 1995
(“the LRA”) to review and
set aside the arbitration award
which the second respondent handed down on 12 August 2013 (“the
arbitration award”).
The applicant also seeks condonation for
the late filing of the review application.
[2]
The third respondent
opposes the review application and the condonation application. The
first and second respondents chose to be
abide the decision of this
Court.
The
condonation application
[3]
The review application
is some ten months late. Such a delay is excessive where one of the
primary purposes of the Labour Relations
Act 66 of 1995 (“the
LRA”) is to ensure the expeditious resolution of labour
disputes.
[4]
The reason for the
delay is that the applicant erroneously telefaxed the review papers
to the telefax number of the Bargaining Council
and the Arbitrator
instead of the telefax number of the third respondent. The applicant
rectified this error once he realised that
the review papers had been
telefaxed to the wrong number.
[5]
I am satisfied that the
applicant was not in wilful default and that his failure to timeously
telefax the review papers to the third
respondent was a
bona
fide
error in the
circumstances.
[6]
Insofar as the
prospects of success are concerned, the applicant alleges in the
condonation application and the review application
that the
Arbitrator was biased and committed a reviewable irregularity by
essentially believing the evidence led by the third respondent’s
witnesses during the arbitration proceedings and disbelieving his
version of events.
[7]
The applicant further
alleged, in the review application, that the Arbitrator committed a
gross irregularity in the conduct of the
arbitration proceedings by
preventing him from cross-examining the witnesses of the third
respondent.
[8]
I have read and
considered the transcript of the arbitration proceedings (“the
transcript”) and the arbitration award.
In my view, there is no
evidence before this Court to suggest that the Arbitrator was biased
or that the applicant should reasonably
have apprehended bias on the
part of the Arbitrator.
[9]
It is apparent from the
transcript that the applicant was represented by a NUMSA official, Mr
Sam Khumalo, who was afforded an opportunity
to cross-examine the
third respondent’s witnesses and was also afforded an
opportunity to present the applicant’s case.
[10]
The transcript
similarly does not show that the Arbitrator unnecessarily intervened
during the arbitration proceedings or displayed
bias in favour of the
third respondent or against the applicant. There is, therefore, no
merit in these two grounds of review,
namely, that the Arbitrator was
biased against the applicant or that she failed to allow his
representative to cross-examine the
third respondent’s
witnesses during the arbitration proceedings.
[11]
Insofar as the
remaining ground of review is concerned, namely, that the Arbitrator
erred in believing the third respondent’s
witnesses and
disbelieving the applicant, it is clear from the arbitration award
that the Arbitrator made a credibility finding
against the applicant
and in favour of the third respondent’s witnesses.
[12]
A
Court of review would be extremely reluctant to interfere with
credibility findings made by a trier of fact such as the
Arbitrator.
[1]
The reason for
this is obvious; namely, that the Court of review does not have the
benefit of hearing the
viva
voce
evidence of these witnesses in order to assess the credibility of
their evidence.
[13]
I
am satisfied that the credibility finding made by the Arbitrator in
the arbitration award falls within the range of findings which
a
reasonable decision-maker would have made on the evidence before the
Arbitrator.
[2]
[14]
There is, therefore,
also no merit in this ground of review.
[15]
Since
the applicant has no reasonable prospects of success in the review
application, he has not satisfied one of the essential
requirements
for condonation.
[3]
[16]
Accordingly, I am
unable to condone the late filing of the review application.
Conclusion
[17]
Accordingly, I make the
following order:
17.1
The application for
condonation of the late filing of the review application is
dismissed;
17.2
The review application
is therefore also dismissed;
17.3
There is no order as to
costs.
______________
Van
As, AJ
Acting
Judge of the Labour Court
Appearances
:
For the
applicant:
In person
For the
third respondent: Ms Esté
Wessels of Du Randt du Toit Pelser Attorneys
[1]
Cox v
CCMA and Others
(C360/99)
[2000] ZALC 111(02 October 2000).
[2]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097 (CC).
[3]
Melane v
Santam Insurance Co Ltd
1962
(4) SA 531
(A).