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[2016] ZALCD 26
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Ndawo v Tanker Services and Others (D638/10) [2016] ZALCD 26 (2 December 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case no: D638/10
In
the matter between:
PHUMULANI
VITALIS
NDAWO
Applicant
and
TANKER
SERVICES
First
Respondent
COMMISSIONER
K. CHARLES
Second Respondent
THE
NATIONAL BARGAINING COUNCIL
FOR
THE ROAD FREIGHT INDUSTRY
Third respondent
Heard:
27
October 2016
D
elivered:
2 December 2016
Summary:
review. Application dismissed
JUDGMENT
GUSH J
[1]
The
applicant in this matter applies to review and set aside the award
handed down by the second respondent under the auspices of
the third
respondent and for the matter to be referred back to the third
respondent to be considered
de
novo
.
The application includes an application for condonation for the late
filing of the review application. The condonation application
was not
opposed by the first respondent but taken no further in argument
.than the papers by the applicant
[2]
The
applicant was employed by the first respondent as a driver. His
duties involved driving a petrol tanker and making deliveries
of fuel
to specified service stations on a particular authorised route. On a
number of occasions the applicant was found to have
deviated from his
route and stopped in Buccus road an area well-known as a “hot
spot” where thefts of petrol occurred.
The presence of his
vehicle was determined by reference to a tracking system. On some of
these occasions the applicant’s
tachograph report had been
defaced to obscure the detail.
[3]
The
evidence relating to the applicants misconduct involved both the
evidence from the tachograph and from a separate satellite
tracking
system. Coupled with the misconduct relating to the applicant being
and stopping in an area where he was not supposed
to be was evidence
that after his return to the depot the clients to whom he had made
deliveries complained that the amount delivered
was short.
[4]
At
the conclusion of the disciplinary enquiry the applicant was found
guilty of the misconduct and dismissed. Dissatisfied the applicant
referred a dispute to the third respondent who in turn appointed the
second respondent to arbitrate the dispute
[5]
It
is important at the outset to record the chronology of events leading
to the review application being argued in October 2016:
a.
The
applicant was employed by the first respondent in August 2005 and was
dismissed on 25 June 2008.
b.
A
dispute was referred to the third respondent on 8 August 2008 and a
certificate reflecting that the dispute had not been resolved
was
issued on 5 September 2008.
c.
The
bundle of documents filed in the matter contains an undated request
for arbitration; a notice issued by the third respondent
setting the
arbitration down to 14 July 2009; documentation relating to the
request that the matter be adjourned and confirmation
that the
arbitration proceeded on 19 February and 19 April 2010. There is no
explanation of what caused the delay between the certificate
issued
on 5 September 2008 and the commencement of the arbitration on 19
February 2010.
d.
At
the conclusion of the arbitration, the second respondent issued an
award dated 4May 2010 which award, the applicant avers he
received on
13 May 2010.
e.
The
review application was filed on 15 July 2010, 3 weeks late.
f.
On
5 November 2010, the third respondent filed a notice in terms of rule
7A(2)(b), 7A(3) and 7(9) of the Rules of this Court. This
notice
confirmed that the second and third respondents did not oppose
the application and attached an index to the record
comprising the
arbitration award and proof of service; the bundle of documents use
at the arbitration; the third respondent’s
documents relating
to the matter and to compact discs.
g.
On
8 November 2010, the applicant’s attorneys uplifted the record
from the registrar of the court.
h.
On
24 January 2011, the registrar wrote to the applicant’s
attorneys recording that the documents uplifted in November 2010
had
not been returned nor had the record be transcribed.
i.
On
25 January 2011, the applicant’s attorneys wrote to the
transcribers suggesting that only one of the CDs had been
transcribed.
j.
It
is clear from the papers that the applicant did not comply with the
requirements of rule 7(8) in that having uplifted the record
filed
neither an amendment nor variation to the notice of motion or
delivered a notice that he stood by his notice of motion.
k.
On
a March 2011, despite the failure of the applicant to comply with the
rules, the first respondent having given notice of its
intention to
oppose the application filed an opposing affidavit.
l.
Nothing
appears to have happened in the matter between March 2011 and April
2014 when the applicant’s attorney appears to
have realised
that the record was incomplete and that steps should be taken to
reconstruct it.
m.
In
May 2014, the first respondent applied to the registrar for the
matter to be archived in accordance with the practice directive
and
the matter was placed before Cele J in chambers. Cele J directed that
the parties were to attempt to reconstruct the record.
This directive
was issued on 9 September 2014.
n.
There
is nothing in the pleadings or notices to indicate when an attempt
was made to reconstruct the record or the outcome of such
attempt or
attempts.
o.
On
12 June 2015, the applicant filed:
i.
the
arbitration award;
ii.
a
bundle of documents used in the arbitration;
iii.
third
respondent’s documents relating to the matter;
iv.
Transcript;
and
v.
A
rule 7A(8) notice, somewhat surprisingly given the background to the
matter simply stating: “
KINDLY
TAKE NOTICE
that the applicant hereby
stands
by
the Notice of Motion of 15 July 2010” (my emphasis).
p.
In
response to this notice, the first respondent filed a further
answering affidavit on 27 October 2015.
q.
The
applicant filed a replying affidavit on 9 November 2015. Conspicuous
by its absence in this affidavit is any reference whatsoever
to the
directive that the parties were to attempt to reconstruct the record
or the outcome of such attempted reconstruction. The
affidavit
essentially suggests that the matter should be referred back to the
third respondent be heard
de
novo
on the grounds that the record is incomplete. It identifies the
missing portions as being the evidence in chief of the witness:
Collin Nadar and the evidence of the witness Southwick. As will
become clearer, the averment made in respect of Nadar borders on
dishonesty.
r.
The
pleadings having eventually closed, the matter was enrolled to be
heard on 11 February 2016 when it was adjourned
sine
die
by consent.
s.
Finally,
the matter was set down and argued on 27 October 2016.
[6]
Three
indexed and paginated bundles of documents were filed:
a.
The
pleadings: comprising the notice of motion, the first respondent’s
opposing affidavit, the first respondent’s answering
affidavit
and the applicant’s replying affidavit.
b.
Notices:
including the rule 7A(8) Notice;
c.
The
record including the documents used at the arbitration, the award and
the transcript.
[7]
In
argument, the applicant averred that on the strength of the decision
of the Constitutional Court in the matter of
Baloyi
v Member of the Executive Committee for Health and Social
Development, Limpopo and Others
[1]
the mere fact that the evidence in chief of Nadar and the evidence of
Southwick was missing, the dispute to be referred back to
be
considered
de
novo
.
[8]
I
do not understand the decision in
Baloyi
to
be authority for the simple proposition that in all matters where the
record may be incomplete that the award should be set aside
and the
matter referred back to be heard again.
[9]
Unlike
the facts in
Baloyi,
the first respondent had not withdrawn its opposition to the
application, a substantial portion of the record was available, an
attempt to reconstruct the record had taken place and as I will deal
with below an agreement had been reached on the evidence of
one of
the witnesses during the reconstruction exercise.
[10]
Before
turning to the merits of the applicant’s review and reliance on
the missing portions of the record, it is necessary
to deal with the
directive issued by this Court and the issue of the reconstruction
exercise undertaken by the parties.
[11]
As
I have indicated above, conspicuous by its absence is any reference
whatsoever in the pleadings to any attempt to reconstruct
the missing
portions of the record. The applicant’s attorney however, who
filed his heads of argument the day before the
hearing (25 October
2016) saw fit to attach to his heads of argument a ruling issued by
the second respondent following the reconstruction
hearing.
[12]
It
is not filed as a pleading nor is there an accompanying affidavit
explaining it. The ruling reads:
1.
Mr.
Mhlanga represented the applicant and Mr. Ncingwana represented the
respondent.
2.
The
parties have agreed that the evidence of Colin Nadar as set out in
the Commissioner’s award is a true and correct reflection
of
his testimony at the arbitration.
[13]
In
his heads, Mr. Mhlanga simply records the following:
‘
In the
reconstruction meeting held between parties and 24 October 2014
agreement was reached on the evidence of Mr. Colin Nadar
as set out
in the Commissioner’s award as having been correctly captured
and in respect of which the court can rely on. (sic)
no agreement was
reached on the evidence of Mr. Southwick nor could his testimony be
reconstructed.’
[14]
A
number of issues arise from this averment. Firstly, in the answering
affidavit filed 12 months after the reconstruction ruling,
the
applicant fails to deal with the reconstruction process or ruling,
but makes the averment that the evidence of Nadar is missing
despite
the ruling and avers that the Commissioner’s summary is not
accurate and that the record is inadequate. This is at
best for the
applicant an apparent attempt to mislead the court.
[15]
There
is no record, or at least no record or ruling that has been filed by
the applicant, regarding any agreement in respect to
Southwick’s
evidence.
[16]
In
the applicant’s founding affidavit under the heading grounds of
review, the introduction avers that the second respondent’s
findings in her award constituted a gross irregularity and that her
decision was one that no reasonable decision-maker could not
have
arrived at and that the award is irrational considering the evidence
placed before her. The concluding paragraphs of the founding
affidavit simply repeat these averments and add the suggestion that
the second respondent committed misconduct.
[17]
In
between, the applicant disagrees with the second respondent’s
finding on the facts. These averments are akin to an appeal
and in no
way establish that the second respondent’s award is reviewable.
[18]
What
the applicant fails to deal with is the finding by the second
respondent that the applicant’s evidence was not credible.
In
contrast the second respondent accepted the evidence of Colin Nadar
and that the parties had agreed that her summary of his
evidence was
“a true and correct reflection of his testimony at the
arbitration."
[19]
The
replying affidavit filed by the applicant takes a matter no further.
On the merits of the application, the applicant continues
to raise
what is in essence grounds of appeal. The applicant during the
arbitration and the disciplinary hearing simply offered
a bare denial
in the face of the evidence of Nadar and Southwick. In the replying
affidavit, apart from mendaciously attacking
the second respondents
summary of Nadar’s evidence simply refers to Southwick’s
evidence being missing.
[20]
What
is even more startling is that Mr. Mhlanga suggest in his heads of
argument that the applicant in his replying affidavit “canvassed
at great length the aspects that the record of proceedings provided
by the 3
rd
respondent is completely inadequate” sic is simply not correct.
What the applicant does, is to refer to what is missing from
the
record and suggests that in particular in his founding affidavit he
attacks the second respondent’s summary of the evidence.
This
is not so. There is nothing in the founding affidavit to substantiate
this averment.
[21]
Most
importantly, a consideration of the award suggests that the second
respondent:
[22]
‘
Deal[t]
with the matter with the minimum of legal formalities [gave] the
parties a full opportunity to have their say in respect
of the
dispute; identif[ied] the dispute [s]he was required to arbitrate;
understood the nature of the dispute … she was
required to
arbitrate; deal[t] with the substantial merits of the dispute; and
[arrived at a] decision that another decision-maker
could reasonably
have arrived at based on the evidence
.’
[2]
I
am not satisfied that the applicant has in any way established that
the second respondent’s award is reviewable. The second
respondent has properly considered the dispute, recorded the
evidence, analysed the evidence and come to a decision that is
eminently
one to which a reasonable arbitrator could have arrived at.
[23]
It
is so that the applicant did not address the issue of condonation and
only dealt with the merits. I am satisfied that as the
applicant
cannot succeed on the merits I therefore grant condonation for the
late filing of the review and dismiss the application.
[24]
As
far as costs are concerned, the tardiness and manner in which the
applicant has approached this matter is an anathema to the
requirement of expediency when dealing with dismissal disputes. Not
only has the applicant not explained the extensive and unacceptable
delays but the failure to appropriately deal with the reconstruction
and properly file the ruling is culpable. However, the first
respondent must shoulder some of the blame for the inordinate delay.
It is inappropriate for the first respondent to simply wait
for the
matter to be dealt with. Likewise, in the absence of the applicant
filing the reconstruction ruling it was incumbent upon
the first
respondent to do so. In the circumstances an order for costs is
inappropriate.
[25]
Accordingly
and for the reasons set out above, I make the following order:
a.
Condonation
for the late filing is granted
b.
the
applicant’s application is dismissed;
c.
there
is no order as to costs.
D H Gush
Judge of the Labour Court
of South Africa Johannesburg
APPEARANCES:
FOR THE
APPLICANT:
S Mhlanga
Mhlanga Inc
FOR THE RESPONDENT:
Adv. C Goosen
Instructed
by: Ngcingwana Attorneys
[1]
(2016) 4 BLLR 319
(CC) (
Baloyi
).
[2]
The
Sidumo
test.
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).