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[2016] ZALCCT 48
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Walters v CCMA and Another (C1073/15) [2016] ZALCCT 48 (2 December 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judges
Case
no: C 1073/15
In
the matter between:
Samuel Hendrik
WALTERS
Applicant
and
CCMA
First respondent
Mervin JOHNSON N.O.
Second respondent
Heard:
27 October 2016
Delivered
:
2 December 2016
Summary:
Review – LRA s 145. Procedural
defects amounting to reviewable irregularities. Award reviewed and
set aside. Dispute remitted
to CCMA.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant, a farm manager, was
dismissed by the third respondent, Bosplaas Gouda, after he had
allegedly sold cows belonging
to the farm for his own pocket.
[2]
He referred an unfair dismissal dispute to
the CCMA. The arbitrator, Mervin Johnson (the second respondent)
found that the dismissal
was fair. The employee applies to have the
award reviewed and set aside, and referred back to the CCMA.
Condonation
[3]
The
application is about eight weeks late. The applicant applied for
condonation on 29 September 2016, a year after the award had
been
handed down. I shall consider the application for condonation with
reference to the well-known principles in
Melane
v Santam Insurance Co Ltd.
[1]
Degree of lateness
[4]
The delay is significant. The arbitration
award was handed down on 28 August 2015. The applicant says he
received it on 1 September
2015. The six week time period within
which to apply for review expired on 13 October 2015. He only did so
on 18 December 2015,
some eight weeks after the six week period had
expired. And he waited for a year, until 29 September 2016 – a
month before
this application was heard – before applying for
condonation. This excessive delay must be weighed up against the
explanation
therefor and his prospects of success.
Reason for delay
[5]
The employee was not represented at
arbitration. He was dissatisfied with the award. He approached Basson
Louw attorneys in Malmesbury.
They told him to apply for rescission.
It was the wrong advice.
[6]
On
16 September 2015, well within the prescribed time period, Basson
Louw attorneys wrongly delivered a document called a “notice
of
intention to apply for variation of arbitration award” to the
CCMA on behalf of the applicant. They compounded their bad
advice by
subsequently delivering, on 7 October 2015, an application for
rescission in terms of s 144 of the LRA.
[2]
[7]
The rescission application was heard on 3
November 2015. The arbitrator in that application was the second
respondent, Mr Johnson.
The applicant was represented by an attorney,
Erik Louw. The farm was represented by an official of an employer’s
organisation.
The arbitrator correctly ruled that the application
amounted to a review in terms of s 145 and not rescission in terms of
s 144.
He dismissed the application for rescission on 11 November
2015. (The applicant has abandoned an application to review the
rescission
award after having obtained better legal advice).
[8]
The applicant instructed his current
attorney, Teresa Erasmus, on 30 November 2015 on the advice of a
labour consultant, having
terminated the mandate of Basson Louw
attorneys. She is based in Stellenbosch; he lives in Gouda. He could
only consult with her
a week later, on 7 December 2015. She drafted a
review application. The applicant signed the founding affidavit in
terms of rule
7A(3) on 17 December and delivered the application on
18 December 2015.
[9]
Unfortunately, it took more time for the
applicant to obtain proper legal advice. It was only after his
current attorney had briefed
counsel, and when he consulted with Mr
Bosch
on 2
September 2016 in preparation for this hearing, that Mr Bosch told
him that he had to apply for condonation. Counsel drafted
the
application for condonation and the applicant’s attorney
delivered it on 29 September 2016.
[10]
Apart from being badly served by his
attorneys, the applicant also had other legal fires to fight. He
lived on the farm with his
wife. The farm applied for and was granted
an eviction order on 2 November 2015. He appealed on 15 December
2015. The appeal is
pending before the High Court.
[11]
The explanation is a reasonable one.
Although there is a limit beyond which a litigant cannot escape the
negligence of his attorneys,
in this case the applicant took steps
throughout in order to challenge the arbitration award. He is a
layman who did not realise
until late in the day that he had been
receiving bad advice. And when he received good advice, he acted on
that advice immediately.
.Prospects of success
[12]
The extent of the delay and the reasons
therefor must also be considered together with the prospects of
success in the review application.
And, as will become apparent, I
consider those prospects to be good.
Conclusion on
condonation
[13]
Considering these factors cumulatively,
condonation should be granted for the late filing of the review
application.
Background facts
[14]
The owner of Bosplaas, Duncan Stephenson,
bought cows from Nick Dippenaar. It came to his attention that the
applicant, Walters,
sold cows to Moorreesburg Abattoir. He testified
that Walters did so for his own pocket and without permission. He
dismissed Walters
for theft.
[15]
The applicant denied any misconduct. He
testified that the Adri Walters Trust bought the cows that were
onsold to the abattoir from
Dippenaar. He did not know that Bosplaas
had also bought cows from Dippenaar; but Dippenaar was not the owner.
The applicant instructed
the farm manager, André
Coetzee, to load a cow known simply as “cow
827” (as opposed to, say, Daisy) on a truck to be transported
to Moorreesburg
abattoir. He did so at the request of his wife on
behalf of Adri Walters Trust, the owner (the entity that had bought
cow 827 from
Dippenaar). The proceeds of the sale was paid to the
Trust and not to him.
Arbitration award
[16]
The arbitrator recorded that the applicant
had been dismissed for theft arising from the sale of the cows
(including 827), allegedly
for his own benefit.
[17]
The arbitrator considered whether the
applicant had committed the misconduct. He considered the evidence of
Stephenson, Coetzee
and the applicant.
[18]
The arbitrator found Stephenson’s
evidence to be “clear and coherent”. Bosplaas bought cow
827 from Dippenaar
on 28 September 2014. Coetzee also did a stock
count indicating that 827 was part of the Bosplaas stock and that she
was slaughtered
on 3 November 2014.
[19]
The applicant, on the other hand, contended
that Adri Walters trust had bought cow 827 from Dippenaar. But the
arbitrator found
that the stock report favoured the Bosplaas version
that “three Fries cows” belonged to Bosplaas, and that
the applicant
had no proof that 827 belonged to the Trust.
[20]
The arbitrator found that Walters had
committed the misconduct and that dismissal was fair.
Grounds of review
[21]
Mr
Bosch
,
for the applicant, raised four grounds of review:
21.1
The applicant did not receive a fair trial,
as there were a number of procedural defects in the conduct of the
proceeding.
21.2
The
finding that the dismissal was procedurally fair was not one that a
reasonable commissioner could reach.
[3]
21.3
The finding that the applicant was “guilty
of theft” was not one that a reasonable commissioner could
reach on the evidence
before him.
21.4
It follows that the dismissal was not fair.
Evaluation
[22]
I shall first consider the attack on the
alleged procedural irregularities in the arbitration proceedings.
Should the applicant
be successful on this leg, the dispute would
have to be remitted to the CCMA and it would not be appropriate for
this Court to
express a view on the question whether the applicant
had committed the misconduct.
Procedural defects
[23]
I
agree with Mr
Bosch
that, as the law now stands, errors in the conduct of the arbitration
proceedings render an arbitration procedurally unfair and
are
actionable on review as a form of misconduct or gross
irregularity.
[4]
Such
irregularities prevent a party from having its case fairly heard or
prevent a fair trial of the issues. They are not subject
to the
Sidumo
test.
[5]
Legal representation
[24]
Mr
Bosch
argued
that the arbitrator committed a reviewable irregularity by denying
the applicant legal representation. It has been held that,
where the
arbitrator should have afforded legal representation but did not, it
is a reviewable irregularity in itself.
[6]
[25]
The applicant represented himself at the
arbitration. Bosplaas was represented by a Mr Jan Geldenhuys, an
official of the South
African Allied Transporters Employers
Association (SAATEA). It does not appear that the arbitrator
ascertained whether Bosplaas
was a member of an employers’
association that would appear to operate in the transport industry;
nor, indeed, if it is a
registered employers’ organisation.
[26]
In his founding affidavit, Walters alleged
that Myburgh is an experienced labour consultant. Bosplaas did not
deny this. At the
commencement of the arbitration, the applicant’s
then attorney – Mr Erik Louw of Louw Basson attorneys –
applied
to represent Walters. He said:
‘
So
dis derhalwe my submissie dat die applikant bygestaan moet word deur
‘n regsverteenwoordiger, aangesien hy ‘n ekspert
[
sic
– m.a.w. deskundige] gaan moet kruisverhoor, bedoelende Mnr
Geldenhuys wat ‘n ekspert in die gebied is en hy nie op
sy eie
opgewasse is om met sodanige ekspert die nodige kruisondervraging te
behartig nie.’
[27]
Geldenhuys did not dispute that he is an
expert. Instead, he relied on a submission that this was a simple
dispute about theft.
[28]
The arbitrator denied legal representation
on the basis that the dispute is not complex and straightforward.
[29]
Mr
Bosch
argued that, in doing so, he failed to
have proper regard to the comparative abilities of the parties, viz
an experienced labour
consultant as opposed to a farm manager. He
thus failed to exercise his discretion judicially.
[30]
Ms
Harvey
,
on the other hand, argued that the commissioner assisted the
applicant throughout the arbitration hearing by describing the
procedure;
prompting him when necessary; and giving explanations as
to what was expected of him.
[31]
That may be so; but this is a case where
there was a clear disparity between the abilities of the parties. The
arbitrator exercised
a discretion, but he did not do so judicially.
He should have ensured that the playing fields were level, or at
least not unreasonably
bumpy. He did not. He should either have
allowed the employee representation, or he should have disallowed the
consultant.
[32]
It
is so that an employer may be represented by an employers’
organisation of which it is a member.
[7]
But the arbitrator did not ascertain whether Bosplaas was indeed a
member of SAATEA
[8]
; whether
SAATEA is a registered employers’ organisation, as envisaged by
CCMA rule 25; and he did not have proper regard
to the comparative
abilities of the parties.
[33]
In these circumstances, I agree that the
commissioner committed a reviewable irregularity. The dispute should
be remitted to the
CCMA for another arbitrator to decide whether
representation should be allowed for either or both parties. That
arbitrator should
also ascertain whether Mr Geldenhuys is entitled to
represent Bosplaas, should he wish to do so again.
Other procedural
defects
[34]
Mr
Bosch
also
argued that the arbitrator did not allow the applicant the
opportunity to obtain and submit evidence of the transaction between
the Adri Walters Trust and Dippenaar.
[35]
This is a crucial element of the
applicant’s defence. He testified that cow 827 was owned by the
Trust and that there was
a contract of sale reflecting that; but he
did not have a copy and the arbitrator found that he “did not
provide the necessary
proof” that 827 belonged to the Trust.
[36]
The applicant did say that he wanted to get
a copy of the contract and that he wanted to call Dippenaar as a
witness:
‘
So
ek voel net om die ding reg neer te sit, ek wil daai koopkontrak op
hierdie tafel hê. Mnr Dippenaar moet by wees, dat ons
die
datums en die goed 100% reg het en hoekom is daar nooit met die trust
gepraat nie…”
‘
[E]k
het nie gedink dit sou nodig wees om Mnr Dippenaar te laat kom vir
dit nie. Maar waarnatoe dit nou hiernatoe gaan, verwys dit
alles dat
Mnr Dippenaar is ‘n key getuie in hierdie hele saak, en wie se
koeie dit was en met wie hy die transaksie gehad
het en wanneer het
hy wat met Mnr Stevenson bespreek, want die trust was nie daarin
geken nie. Dis hoekom hy ‘n key getuie
is.’
[37]
Dippenaar was indeed a key witness.
Bosplaas alleged that it bought the cows from him; the applicant
alleged that the Trust did.
Dippenaar’s evidence and the
existence of a contract of sale would be the best evidence of the
truth of either allegation.
But the arbitrator did not have the
benefit of either piece of evidence.
[38]
Having denied the applicant legal
representation, should the arbitrator
mero
motu
have given Walters the opportunity
to bring this evidence – for example, by granting a
postponement to enable him to do so?
Ms
Harvey
says that would be expecting too much:
Walters came to the hearing with the hope that he would have legal
representation. He arrived
with his attorney, Mr Louw. They should
have been prepared. They should have brought the necessary witnesses
and documentary evidence.
They knew what their case was.
[39]
The
Court is indeed loath to impose too inquisitorial a duty on a
commissioner; but the applicant made it clear that he only realised
in the course of the proceedings that Dippenaar would be a key
witness. On balance, I agree that the arbitrator should at least
have
allowed him to bring the necessary evidence, thus making it easier
for the commissioner to ascertain the truth on a balance
of
probabilities, having regard to the best evidence available. As the
court stated in
Dimbaza
Foundries
[9]
:
‘
In
the circumstances where the applicant was represented by a layman, it
is careless to assume that a postponement is going to be
requested at
an “appropriate” time. In my view it is the arbitrator’s
function to be sensitive and alert to the
fact that he is there to
guide the process particularly as section 138 of the Act provides…’
[40]
For this reason also, I agree that the
dispute should be remitted for a fresh arbitration before a different
commissioner who would
have the opportunity of considering the best
available evidence afresh.
The findings on
substantive fairness, procedural fairness and sanction
[41]
Given my findings above, I need not express
a view on the other review grounds raised by the applicant. Another
arbitrator will
have the opportunity to decide afresh on the
questions of procedural fairness; whether Walters had committed the
misconduct; and
if so, the appropriate sanction. She or he should be
able to do so with or without the benefit of representation for
neither or
both parties; and the best possible evidence.
Conclusion
[42]
The award should be reviewed and set aside,
and remitted to the CCMA for a fresh arbitration.
Costs
[43]
Although the application is successful,
that is not the end of the dispute. The matter is to be decided
afresh by a different arbitrator
who may still decide that the
dismissal was fair. And the applicant, represented by his attorneys,
has been responsible for unnecessary
delays and further costs. The
farm should not be ordered to pay his costs, in law or fairness.
Order
[44]
I therefore make the following order:
44.1
The arbitration award under case number
WECT 8304/15 dated 28 August 2015 is reviewed and set aside.
44.2
The dispute is referred back to the CCMA
for a fresh hearing before a commissioner other than the second
respondent.
44.3
There is no order as to costs.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Craig Bosch
Instructed
by
Teresa Erasmus.
THIRD
RESPONDENT: Suzanna
Harvey
Instructed
by
Kemp Nabal Inc.
[1]
1962 (4) SA 531 (A) 532 C-F.
[2]
Labour Relations Act 66 of 1995
.
[3]
i.e. the test set out in
Sidumo
v Rustenberg Platinum Mines Ltd
(2007)
28
ILJ
2405
(CC).
[4]
Myburgh & Bosch
Reviews
in the Labour Courts
at 81 and 2013 and the authorities summarised there.
[5]
Cf
Toyota
SA Motors (Pty) Ltd v CCMA
[2016]
3 BLLR 217
(CC) paras 105 and 192;
Kievits
Kroon Country Estate (Pty) Ltd v Mmoledi
[2014]
3 BLLR 207
(LAC) par 20;
BAUR
Research cc v CCMA
[2014]
4 BLLR 374
(LC) par 18.
[6]
BAUR
(supra)
par
18;
Colyer
v Essack NO
(1997)
18
ILJ
1381
(LC) 1384;
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman N.O
.
(2013) 34
ILJ
2347 (LC) paras 38-39.
[7]
CCMA
rule 25(1)(b)(3).
[8]
CCMA
rule 25(2).
[9]
Dimabaza
Foundries v CCMA
[1999]
8 BLLR 779
(LC) para 105.