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[2016] ZALCCT 36
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Bikwani v CCMA and Others (C1027/15) [2016] ZALCCT 36 (17 October 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not reportable
Case
no: C 1027/15
In the
matter between:
Mbulelo BIKWANI
Applicant
and
CCMA
First Respondent
Elridge EDWARDS N.O.
Second Respondent
SOUTH AFRICAN MEDICAL
RESEARCH COUNCIL
Third Respondent
Delivered
:
27 October 2016
RULING
ON LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1]
The applicant, Mr Mbulelo Bikwani, applies
for leave to appeal against my
ex
tempore
judgment of 10 August 2016. In
that judgment, I declined to review a condonation ruling by the
second respondent, a commissioner
of the CCMA.
[2]
This application is bedevilled by the fact
that no transcript of the
ex tempore
judgment is available. It appears that
the recording equipment in the Labour Court was not working when I
handed down judgment (not
for the first time, and one of a host of
infrastructural problems under which the Court operates).
Nevertheless, both parties proceeded
to file their submissions on the
basis of their own notes and recollection of the judgment that I
handed down, without objection.
I shall also, insofar as necessary,
recap my reasons in the course of this ruling.
The
test on appeal
[3]
The test to be applied in an application
such as the present is that referred to in
s 17
of the
Superior
Courts Act, 10 of 2013
.
Section 17(1)
provides:
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be
heard, including conflicting judgements on the matter
under
consideration;
(b)
the decision
sought on appeal does not fall within the ambit of
section 16
(2)
(a); and
(c)
where the decision sought to be appealed does not dispose of all
the
issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.”
[4]
The traditional formulation of the test
that is applicable in an application such as the present requires the
court to determine
whether there is a reasonable prospect that
another court may come to a different conclusion to that reached in
the judgment that
is sought to be taken on appeal. The use of the
word “would” in
s17(1)(a)(i)
is indicative of a raising
of the threshold, since previously all that was required for the
applicant to demonstrate was that there
was a reasonable prospect
that another court might come to a different conclusion.
Further, this is not a test to be applied
lightly – the Labour
Appeal Court has recently had occasion to observe that this court
ought to be cautious when leave to
appeal is granted, as should the
Labour Appeal Court when petitions are granted. The statutory
imperative of the expeditious resolution
of labour disputes
necessarily requires that appeals be limited to those matters in
which there is a reasonable prospect that the
factual matrix could
receive a different treatment or where there is some legitimate
dispute on the law (See the judgment by Davis
JA in
Martin
& East (Pty) Ltd v NUM
(2014) 35
ILJ
2399
(LAC).
[5]
It must also be borne in mind that the
applicant seeks leave to appeal against a review judgment – one
in which the applicant
in any event had a considerable hurdle to
overcome on the test for review; and that the underlying ruling by
the Commissioner is
one on condonation, which is a discretionary
ruling.
The
condonation ruling
[6]
The applicant entered into an agreement
with the third respondent, the South African Medical Research
Council, shortly before he
was due to face twelve allegations of
misconduct at a disciplinary hearing. They agreed that his employment
would be terminated
on 31 July 2015. He referred an unfair dismissal
dispute to the CCMA on 25 September 2015, some 25 days late.
[7]
At the arbitration, the applicant contended
that he referred the dispute late because the SAMRC had created the
impression that
his dismissal was for operational requirements, but
then applied to SARS for a tax directive specifying the reason for
termination
as “mutual termination”. It had issued two
certificates of service, the one simply recording a mutual
termination and
the other “mutual termination based on
operational requirements”. He only referred the dispute to the
CCMA after he
had been paid in terms of the agreement on 25 September
2015. He had also been in Gabon for two weeks until 3 September 2015.
[8]
Concerning prospects of success, the
applicant argued that the termination agreement was not valid because
there was no “meeting
of the minds” concerning the reason
for termination. The Council, on the other hand, pointed out that the
settlement agreement
was signed on a voluntary basis between parties
who were both represented by attorneys. The applicant had not alleged
that the
agreement was vitiated by misrepresentation, duress or undue
influence; nor that it was invalid. And he had accepted payment in
terms of the agreement.
[9]
The arbitrator noted that it was common
cause that the applicant was issued with a notice to attend a
disciplinary hearing and that
it did not take place because he
entered into an agreement that his services would be terminated on 31
July 2015. That was the
date of termination and thus the date from
which the referral period ran. The referral was thus 25 days late.
[10]
With
regard to prospects of success, the arbitrator took into account
that, despite a delay around uncertainty about the reasons
specified
for the mutual termination, the applicant had not averred that he was
coerced into signing the agreement; that he was
at all relevant times
represented by an experienced attorney
[1]
;
and that he had received payment in terms of the agreement. He had
not offered to repay that money.
[11]
The arbitrator also took into account that,
as a former CCMA commissioner, the applicant must have been aware of
the time periods
for referring unfair dismissal disputes. He
concluded that the applicant had not shown good cause for the late
referral and refused
condonation.
The
judgment, grounds of appeal and evaluation
[12]
The
discretionary ruling by the arbitrator was not so unreasonable that
no other arbitrator, acting reasonably, could have come
to the same
conclusion.
[2]
[13]
The
following questions posed in
Goldfields
Mining
[3]
must
all be answered in the affirmative in this case:
"1.
In terms of his/her duty to deal with the matter with the minimum of
legal formalities,
did the process that the Arbitrator employed give
the parties full opportunity to have their say in respect of the
dispute?
2.
Did the Arbitrator identify the dispute she
was required to arbitrate (this may in certain cases only become
clear after both parties
had given evidence)?
3.
Did the Arbitrator understand the nature of
the dispute he/she was required to arbitrate?
4.
Did he/she deal with this with substantial
merits of the dispute?
5.
Is the Arbitrator's decision one that
another decision-maker could reasonably have arrived at based on the
evidence?"
Grounds
of appeal
[14]
The applicant nevertheless raises the
following grounds of appeal:
14.1
The court misdirected itself when it
rejected the applicant’s argument that this case was about
repudiation and not about
the validity of the settlement agreement;
14.2
the court misdirected itself by finding
that the Council was justified in deviating from the terms of the
settlement agreement and
refusing to recognise the reason for the
termination, namely operational requirements;
14.3
the court misdirected itself when it held
that the applicant had entered into the settlement agreement in order
to avoid facing
a disciplinary hearing;
14.4
the court misdirected itself when it found
that the applicant should have repaid the money that the Council had
paid to him if he
wanted to challenge the settlement agreement;
14.5
the court erred in holding that an
application for condonation was necessary; and
14.6
the court should not have ordered costs.
Evaluation
[15]
There are no reasonable prospects that
another court will come to a different finding on any of the grounds
raised.
[16]
It is somewhat surprising that the issue of
whether condonation was necessary is raised again in this
application, as Mr
Parker
conceded as much in the hearing of the review application.
[17]
The
settlement agreement was binding on the parties. There is, therefore,
no doubt that the dispute arose on 31 July 2015. It was
in full and
final settlement. In that regard, the facts of the case can be
compared to those in the recent matter of
Gbenga-Oluwatoye
[4]
to which Mr
Masuku
referred. In that judgement, Savage AJA said:
“
Contractual
principles apply to any agreement entered into between and employer
and employee, including an agreement of compromise
in terms of which
parties agreed to settle any dispute or claim is that may exist
between them.
It
is not an issue that the appellant and respondent signed the mutual
separation agreement. Nor is there any dispute that the agreement
records that it was entered into ‘in full and final settlement
of all claims of whatever nature and however rising between
the
parties’…
A
contract may be vitiated by duress where ‘intimidation or
improper pressure renders the consent of the parties subjected
to
duress no true consent’. Compulsion may be exercised by way of
physical force, or indirectly, by way of the threat of
harm. In order
to obtain an order setting aside a contract on the grounds of duress,
actual violence or reasonable fear must be
shown. The fairness
because by the threat of some ‘considerable evil’ to the
person concerned, or to his or her family.
The threat or intimidation
must be unlawful or
contra bonos mores
and the moral pressure
used must have caused damage. The burden of proving the existence of
duress rests on the party raising it.”
[18]
In
this case, there was no duress. The applicant entered into the
agreement in full and final settlement.
[5]
He was advised by his attorney. He agreed to a mutual termination of
his services.
[19]
The Council did not repudiate the
agreement. As the arbitrator pointed out, there was an issue about
the reasons given for the mutual
termination; but the fact remains
that it was terminated by agreement with effect from 31 July 2015.
And the applicant was paid
handsomely in terms of the agreement –
in excess of R1 million.
[20]
It is common cause that the applicant was
facing 12 allegations of misconduct. That appears to be the reason
why he opted for a
mutual termination rather than run the risk of
dismissal, but it does not matter. The fact is that his employment
was terminated
by agreement on 31 July 2015. The only question that
was before the arbitrator was whether he should be granted
condonation for
the late filing of the dispute. The arbitrator ruled
that it should not be condoned. That ruling is not so unreasonable
that no
other arbitrator could have exercised her discretion in the
same way.
[21]
With
regard to costs, this court has a wide discretion.
[6]
it should have been clear that the arbitrator’s ruling on
condonation – a discretionary ruling in itself – was
reasonable and not open to review. The matter should have stopped
there. Instead, the applicant forced the Council to incur further
legal costs. There is no reason in law or fairness why costs in the
review application, and indeed, in this application for leave
to
appeal, should not follow the result.
Conclusion
[22]
There are no reasonable prospects that a
higher court will come to a different conclusion to the one of this
Court that the arbitrator’s
ruling on condonation was not open
to review.
Order
The
application for leave to appeal is dismissed with costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Mushtaq Parker of Parker & Khan Inc.
THIRD
RESPONDENT: Thabani Masuku
Instructed
by
Smith Tabata Buchanan Boyes.
[1]
Mr Parker, who also represents him in this Court.
[2]
Sidumo v Rustenburg
Platinum Mines Ltd
(2007)
28
ILJ
2405 (CC).
[3]
Goldfields Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
[2014]
1 BLLR 20 (LAC).
[4]
Gbenga-Oluwatoye v Reckitt
Benckiser South Africa (Pty) Ltd
(2016)
37
ILJ
902
(LAC);
[2016] 5 BLLR 425
(LAC) paras 12-15.
[5]
See
Be Bop a Lula
Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd
2008
(3) SA 327 (A).
[6]
LRA
s 162.