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[2017] ZALCJHB 155
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Criterion Equipment (Pty) Ltd v Manzana NO and Others (JR186/14) [2017] ZALCJHB 155 (12 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR186/14
CRITERION
EQUIPMENT (PTY) LTD
Applicant
and
DAIZY MANZANA N.O
First Respondent
DISPUTE RESOLUTION
CENTRE FOR
THE METAL AND
ENGINEERING
INDUSTRIES
BARGAING COUNCIL
GIWUSA
obo G MANANA
Second Respondent
Third Respondent
Decided:
In chambers
Judgment:
12 May 2017
Summary:
Leave
to appeal –– application for leave to appeal dismissed.
RULING ON LEAVE TO
APPEAL
HOWES,
AJ
Introduction
[1]
This is an
application for leave to appeal in respect of the whole of the
judgment and order handed down by the Honourable Court
on 12 April
2016. In terms of the judgment, the Applicant’s review
application was dismissed and it was ordered to pay the
costs of the
Third Respondent.
[2]
The
Applicant’s application for leave to appeal has been served and
filed outside of the prescribed time periods. The Applicant
has filed
a condonation application together with its application for leave to
appeal. The delay is minor, and I intend granting
condonation and
determining the matter on its merits.
[3]
The
application for leave to appeal is not opposed by the Third
Respondent.
Applicant’s
submissions – grounds of appeal
[4]
The
Applicant’s submissions supporting its application for leave to
appeal are dealt with in two broad categories, namely:
4.1 the unsigned award;
and
4.2 the merits of the
review.
[5]
I will
briefly address the application for leave to appeal in accordance
with the two broad categories reflected above.
The
unsigned award
[6]
The
Applicant submits that I
inter
alia
failed to accurately interpret and apply section 138(7) of the Labour
Relations Act
[1]
(LRA) .
[7]
While the
Applicant is correct in recording that at the date of the review
application hearing, there was no signed arbitration
award before me,
as previously recorded, it was submitted from the bar by the Third
Respondent’s attorney, Mr Cartwright,
that he was in possession
of the signed arbitration award. This submission was not disputed by
the Applicant’s representative,
Mr Posthuma. By oversight, Mr
Cartwright failed to hand up the signed copy of the award.
[8]
In any
event, recent authority of the Labour Appeal Court makes it clear
that an unsigned arbitration award is not defective merely
because
the arbitrator has not signed it, as this requirement is directory,
and not peremptory. See
Solidarity
obo Smook v Department of Transport, Roads and Public Works
[2]
,
where at paragraph 17, Murphy AJA stated:
“
[17]
To hold an award, which is valid in all other respects, to be invalid
and a nullity on grounds of non-signature favours form
above
substance and would defeat the LRA's aim of effective dispute
resolution. The purpose of the signature requirement is
primarily to
identify the arbitrator and secondarily to signify the completion of
the award by him or her. The latter objective
is achieved also by the
issue of the award. Once an award, indisputably authored by the
relevant arbitrator, is conveyed to
the affected parties and has
passed into the public domain, that act signifies completion and
supersedes the necessity for signature.
The seemingly contrary
decision of the Labour Court in
Meyer
v Commission for Conciliation, Mediation and Arbitration and Others
to
the effect that an unsigned award would normally be a nullity was
qualified by the judge in that case by his explicit recognition
that
such would not be the case if 'there is proof that it is in the form
decided by the arbitrator’.”
[9]
There was
never any dispute between the parties that the contents of the
unsigned award are identical to those of the signed award,
aside from
the arbitrator’s signature.
[10]
It follows
that there is no merit to this ground of appeal.
The
merits of the review application
[11]
The grounds
of appeal are in effect a repetition of the grounds of review as
pleaded. I am not persuaded that there are prospects
that another
court may reach a different conclusion. The law on incapacity
dismissals is settled, and on the facts before the arbitrator,
the
Applicant clearly failed to comply with its obligations prior to
dismissing the Third Respondent.
[12]
The reasons
for dismissing the grounds of review are dealt with fully in my
judgment, and nothing in the application for leave to
appeal
persuades me that the Applicant enjoys any prospects of success on
appeal.
Order:
1.
The
application for leave to appeal is dismissed.
2.
There is no
order as to costs.
__________________
Howes,
AJ
Acting
Judge of the Labour Court of South Africa
[1]
Act 66 of 1995
[2]
[2016] 12 BLLR 1201
(LAC)