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[2017] ZALCJHB 321
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Eskom: Rotek Industries SOC Ltd v Mans and Others (JR226/2016) [2017] ZALCJHB 321 (7 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR226/2016
In
the matter between
:
ESKOM:
ROTEK INDUSTRIES SOC
LTD
Applicant
and
GYSBE
RT
MANS
First Respondent
M.
A. LENNOX
N.O.
Second Respondent
ARBITRATION
FOUNDATION OF SOUTH AFRICA
Third Respondent
Heard:
21
July 2017 & 14 August 2017
Delivered:
07 September 2017
Summary:
Review application of private arbitration award in terms of the
Arbitration Act 42 of 1965
– jurisdictional challenge raised
for the first time at the hearing of the matter – employee or
independent contractor
- fixed term contract – renewal –
reasonable expectation – legal principles restated regarding
the limited scope
of review of private arbitration awards.
JUDGMENT
MALAN
AJ:
Introduction
[1]
The matter
before this Court concerns an opposed application in terms of which
the applicant (‘
Eskom’
)
seeks an order premised on section 33(1) of the Arbitration Act,
[1]
(‘
the
Arbitration Act’
>)
to have the award issued by the second respondent (‘
the
Arbitrator’
)
under the auspices of the Arbitration Foundation of South Africa
(‘
AFSA’
)
under case number M161 (‘
the
award
’)
reviewed and set aside.
[2]
At the commencement of the hearing Mrs
Bezuidenhout, who appeared on behalf of the first respondent (‘
Mr
Mans’
), advised me that Mr Mans no
longer persisted with his point
in limine
challenging the timeous filing of the record of the arbitration
proceedings by Eskom. Consequently, this issue no longer
falls
to be determined.
[3]
The matter before this Court first came before
the Arbitrator following an initial referral by Mr Mans of a dispute
to the Metal
and Engineering Bargaining Council (‘
MEIBC’
)
contending that he was an employee of Eskom, that he was dismissed
from Eskom’s employ and that his dismissal was substantively
and procedurally unfair (‘
the dispute’
).
(I deal later in this judgment with facts relevant to the
relationship between Mr Mans and Eskom.) Eskom objected to the
jurisdiction of the MEIBC to determine the dispute. Its
objection was founded on an arbitration clause – W1 –
contained in the Professional Services Contract concluded between the
parties. Eskom’s argument before the MEIBC was that
the
arbitration clause provides for an arbitrator to be appointed in
terms of the AFSA Rules and consequently this oust the jurisdiction
of the MEIBC to determine the dispute. On this basis, Eskom argued
further that the dispute must proceed to private arbitration.
Eskom’s jurisdictional challenge was successful.
[4]
It is against this background that Mr Mans
proceeded to file a request for arbitration with AFSA on 25 February
2015. The Arbitrator
was appointed, a pre-arbitration conference took
place under the auspices of AFSA and subsequently pleadings were
exchanged setting
out the claims by Mr Mans and the defences thereto
by Eskom. The matter was set down for arbitration which
arbitration took
place over several days. It is this arbitration and
the award that forms the subject matter of Eskom’s review
application.
[5]
Following
the arbitration, the Arbitrator found
inter
alia
that: (1) Mr Mans was an employee of Eskom; (2) He had a reasonable
expectation that the Professional Services Contract which was
concluded with Eskom would be renewed; (3) Eskom’s non-renewal
of the Professional Services Contract constituted a dismissal;
and
(4) his dismissal was substantively and procedurally unfair.
[2]
Based on the aforesaid, the Arbitrator ordered Eskom to pay Mr Mans
compensation equivalent to twelve (12) month’s remuneration.
[6]
Mr Masher, who appeared on behalf of Eskom,
commenced his argument by first challenging the jurisdiction of the
Arbitrator to determine
the dispute between Eskom and Mr Mans.
He submitted that determination of this point in Eskom’s favour
could be dispositive
of the review application
in
toto
. It is convenient to deal with
this point at the outset of this judgment.
[7]
Mr Masher
accepted that this point was neither raised in the papers filed of
record nor in his heads of argument. Moreover,
it was never
raised before the Arbitrator. Nonetheless, he submitted that
this was a point of law and he was entitled to
raise it, for the
first time, at the hearing of this matter. In support of this
point, he handed up supplementary short heads
of argument and relied
on the following authorities:
New
Kleinfontein Goldmine (Pty) Ltd v NUM obo Gule and others
;
[3]
Bombardier
Transportation (Pty) Ltd v
Mtiya NO
and others
;
[4]
and
National
Bargaining Council for the Road Freight Industry & another v
Carlbank Mining Contracts (Pty) Ltd and another
.
[5]
[8]
I accept
that a point of law, such as a jurisdictional challenge, can be
raised for the first time in argument or
mero
motu
by
the Court, unless the party raising the point of law was alive to
such a challenge at the time of the arbitration, but elected
not to
raise it at that stage.
[6]
[9]
I understand the basis of Eskom’s
jurisdictional challenge to be essentially the following:
9.1.
‘
The
MEIBC’s jurisdictional ruling is what founds the Second
Respondent’s jurisdiction to arbitrate the unfair dismissal
dispute.’
[7]
9.2.
Because the initial referral of the dispute by Mr
Mans’ to the MEIBC was out of time (according to Eskom) and Mr
Mans did
not apply for condonation, the MEIBC lacked jurisdiction to
deal with the dispute in the first place.
9.3.
Therefore, the ruling by the MEIBC concerning its
lack of jurisdiction is a nullity.
9.4.
With the
ruling by the MEIBC being a nullity, the Arbitrator did not have
jurisdiction to arbitrate the dispute.
[8]
[10]
I am not convinced that the jurisdiction of the
Arbitrator is rooted in the ruling by the MEIBC. First, the
Professional Services
Contract was central to the dispute before the
Arbitrator. It contains an arbitration clause – W1 - which
provides for an
arbitrator to be appointed in terms of the AFSA
Rules. This is the very clause which Eskom relied upon to
object to the jurisdiction
of the MEIBC and also relied upon to argue
(before the MEIBC) that the dispute must proceed to private
arbitration under the auspices
of AFSA. The jurisdictional challenge
now raised by Eskom also contradicts the jurisdictional challenge
which it raised objecting
to the jurisdiction of the MEIBC.
[11]
Moreover,
on or about 25 February 2015, Mr Mans filed a request for
arbitration. Pursuant to the aforesaid, a pre-arbitration conference
took place on 2 March 2015. A minute of this pre-arbitration
conference was produced.
[9]
In
terms of paragraph 2 of the minute, the parties accepted the
appointment of the Arbitrator. Paragraph 3 of the minute reads
as
follows: ‘
The
parties confirmed that a dispute existed and that a valid arbitration
existed as between them.’
In
terms of paragraph 4 thereof, the parties agreed that the Commercial
Rules of AFSA would apply to the arbitration. Paragraph
5 provides
for the exchange of pleadings setting out the claims by Mr Mans and
the defences thereto by Eskom.
[12]
Consequently,
the arbitration before the Arbitrator was clearly rooted in the
Professional Services Contract, more particularly
the arbitration
clause and what followed (as set out in the preceding paragraph)
pursuant to Mr Mans’ request for arbitration.
It was simply not
rooted in the ruling by the MEIBC.
[10]
[13]
For these reasons, I find that the challenge to
the jurisdiction of the Arbitrator is not sustainable and must fail.
Synopsis
of relevant background
[14]
The relationship between Eskom and Mr Mans dates
back to 1972 when he first commenced employment with Eskom (as it is
now known).
In March 1998, Mr Mans resigned and took up employment
with a company called Turbine Blading. However, Mr Mans
simultaneously continued
to render engineering consulting services to
Eskom in terms of a series of back to back Professional Services
Contracts. These
Professional Services Contracts were concluded for a
specific or limited duration from time to time. Mr Mans rendered
these services
to Eskom using a Close Corporation, namely Gys Mans
Engineering Consulting CC (‘
GMEC’
)
as a commercial vehicle to do so. GMEC is also the party to the
Professional Services Contracts which Mr Mans concluded
with Eskom.
During 2010 Turbine Blading closed. Mr Mans continued to render
engineering consulting services to Eskom in terms
of the Professional
Services Contracts and GMEC rendered VAT invoices to Eskom in this
regard which Eskom paid.
[15]
The last Professional Services Contract between
Mr Mans and Eskom was concluded for the period 1 January 2012 to 30
December 2013
and consequently, terminated automatically through the
effluxion of time on 30 December 2013.
[16]
Despite termination of the Professional Services
Contract and in the absence of a new contract, Mr Mans continued, as
before, to
render engineering consulting services to Eskom during the
period January 2014 until June 2014. GMEC continued to render VAT
invoices
to Eskom which Eskom in turn continued to pay.
[17]
I deal later in this judgment in more detail with
the nature and extent of the relationship between Mr Mans and Eskom
during existence
of the Professional Services Contracts.
[18]
On 5 June 2014, Mr Lionel Reddy, the Works
Engineering Manager for Eskom addressed a letter to Mr Mans advising
him
inter alia
as
follows:
‘
The professional services
contract between Eskom (Rotek and Roshcon) and Gys Mans Engineering
Consulting ended on the 30 December
2013.
[sic]
During the
past 5 months whilst negotiating a new contract, you had been
contracted on a month to month basis.
It is with regret that
we inform you that the professional services contract between
Gys
Mans Engineering Consulting and Eskom (Rotek and Roshcon) will not be
renewed for another term. Your last working day
will be 30 June
2014.
…’
[19]
Save for Mr Mans denying that Eskom contracted
with him on a month to month contract basis during this period
(January 2014 to June
2014), all of the aforesaid appears to be
common cause between the parties.
[20]
Aggrieved by the aforesaid, Mr Mans referred a
dispute to the MEIBC and later to AFSA as mentioned earlier in this
judgment.
Grounds
of review
[21]
I understand the
crux
of Eskom’s grounds of review to be the following:
21.1.
That the Arbitrator committed a gross
irregularity and exceeded his powers in the conduct of the
arbitration by incorrectly determining
that an employment
relationship existed between Eskom and Mr Mans. In this regard
Eskom contends that the Arbitrator incorrectly
applied the relevant
legal principles and failed to apply his mind to material evidence
before him.
21.2.
That the Arbitrator, by his conduct, created a
perception of bias against Eskom.
Relevant legal framework
[22]
The award
sought to be reviewed in this instance is an award by a private
arbitrator pursuant to an agreement between the parties
containing an
arbitration clause. As such, the legal principles applicable to
review applications in terms of sections 145 and
158(1)(g) of the
LRA, (as enunciated in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[11]
and some of the other cases since
Sidumo
[12]
do not find application in this review
.
[23]
Since it is
a review of a private arbitration award, it can only be reviewed on
the grounds set out in
section 33
of the
Arbitration Act.
[13
]
[24]
Section 33(1)
of the
Arbitration Act reads
as
follows:
‘
(1) Where-
(a)
any member of an arbitration tribunal has misconducted himself in
relation to his
duties as arbitrator or umpire; or
(b)
an arbitration tribunal has committed any gross irregularity in the
conduct of the
arbitration proceedings or has exceeded its powers; or
(c)
an award has been improperly obtained,
the
court may, on the application of any party to the reference after due
notice to the other party or parties, make an order setting
the award
aside.’
[25]
In so far
as Eskom seeks to have the award reviewed and set aside on the basis
of the Arbitrator’s conduct of the arbitration,
the
Constitutional Court in
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and another
[14]
(
per
O'Regan J), writing for the majority, set out the policy basis for
the limited scope of intervention in private arbitrations:
'Courts
should be respectful of the intention of the parties in relation to
procedure. In so doing, they should bear in mind the
purposes of
private arbitration which include the fast and cost-effective
resolution of disputes. If courts are too quick to find
fault with
the manner in which arbitration has been conducted, and too willing
to conclude that the faulty procedure is unfair
or constitutes a
gross irregularity within the meaning of
section 33(1)
, the goals of
private arbitration may well be defeated.'
[26]
This
cautionary sentiment is reflected in the conclusion reached by Van
Dijkhorst AJA in
Stocks
Civil Engineering (Pty) Ltd v Rip NO and another
:
[15]
'A court is entitled on review to
determine whether an arbitrator in fact functioned as arbitrator in
the way that he upon his appointment
impliedly undertook to do,
namely by acting honestly, duly considering all the evidence before
him and having due regard to the
applicable legal principles. If he
does this, but reaches the wrong conclusion, so be it. But if he does
not and shirks his task,
he does not function as an arbitrator and
reneges on the agreement under which he was appointed. His award will
then be tainted
and reviewable.... An error of law or fact may be
evidence of the above in given circumstances, but may in others
merely be part
of the incorrect reasoning leading to an incorrect
result. In short, material malfunctioning is reviewable, a wrong
result per
se not (unless it evidences malfunctioning). If the
malfunctioning is in relation to his duties, that would be misconduct
by the
arbitrator as it would be a breach of the implied terms of his
appointment.'
[27]
In short:
in the case of a review of a private arbitration award, there exists
little scope for a review going to the merits, as
a private
arbitrator has the right to be wrong.
[16]
[28]
In so far
as Eskom contends that the Arbitrator committed gross irregularities,
section 33(1)(b)
applies. As to the meaning of ‘gross
irregularity’ in general, the Court in
Commercial
Catering and Allied Workers Union and others v Pick ‘n Pay
Retailers (Pty) Ltd and others.
[17]
‘…
In order for there
to be a gross irregularity warranting interference on review, two
conditions must be met: firstly, the omission
on the part of the
arbitrator must involve his or her having misconceived the nature of
the enquiry or his or her duties in connection
with the enquiry, and
thus result in his preventing a fair trial of the matter. Secondly,
there must not exist material that would
serve to justify the
arbitrator's decision, because 'if there was material before the
[arbitrator], justifying the action taken,
the court would not be
entitled to interfere even if an irregularity had been committed'.
Put differently, if an arbitrator
was caused by inappropriate means
to reach one conclusion whereas if he had adopted appropriate means
he might have reached another
conclusion favourable to the applicant,
then the award is reviewable.’
[29]
In
Telcordia
Technologies Inc v Telkom SA Ltd
,
[18]
the Supreme Court
of Appeal stated as follows:
‘
The fact that
the arbitrator may have either misinterpreted the agreement, failed
to apply South African law correctly, or had regard
to
inadmissible evidence does not mean that he misconceived the nature
of the inquiry or his duties in connection
therewith. It only means
that he erred in the performance of his duties. An arbitrator 'has
the right to be wrong' on the merits
of the case, and it is a
perversion of language and logic to label mistakes of this kind as a
misconception of the nature of the
inquiry - they may be
misconceptions about meaning, law or the admissibility of evidence
but that is a far cry from saying that
they constitute a
misconception of the nature of the inquiry. To adapt the quoted words
of Hoexter JA: it cannot be said that the
wrong interpretation of the
Integrated Agreement prevented the arbitrator from fulfilling his
agreed function or from considering
the matter left to him for
decision. On the contrary, in interpreting the Integrated Agreement
the arbitrator was actually fulfilling
the function assigned to him
by the parties, and it follows that the wrong interpretation of the
Integrated Agreement could not
afford any ground for review by a
court.
[86] Likewise, it is a fallacy to
label a wrong interpretation of a contract, a wrong perception or
application of South African
law, or an incorrect reliance on
inadmissible evidence by the arbitrator as a transgression of the
limits of his power. The power
given to the arbitrator was to
interpret the agreement, rightly or wrongly; to determine the
applicable law, rightly or wrongly;
and to determine what evidence
was admissible, rightly or wrongly. Errors of the kind mentioned have
nothing to do with him exceeding
his powers; they are errors
committed within the scope of his mandate. To illustrate, an
arbitrator in a 'normal' local arbitration
has to apply South African
law but if he errs in his understanding or application of local law
the parties have to live with it.
If such an error amounted to a
transgression of his powers it would mean that all errors of law are
reviewable, which is absurd.
[87] In support of this I revert to
Doyle v Shenker, a case that dealt with a review on the ground of a
gross irregularity in the
proceedings. Innes CJ said in a passage
that speaks for itself:
'Now a mere mistake of law in
adjudicating upon a suit which the magistrate has jurisdiction to try
cannot be called an irregularity
in the proceedings. Otherwise a
review would lie in every case in which the decision depends upon a
legal issue, and the distinction
between procedure by appeal and
procedure by review, so carefully drawn by statute and observed in
practice, would largely disappear.
Yet in this case it is a mistake
of law alone which is relied upon as constituting gross irregularity.
There is neither allegation
nor suggestion that the magistrate, his
attention having been drawn to
sec. 37
, deliberately refused to apply
his mind to it, or to consider it. The position, if the section means
what the applicant contends,
is that the magistrate either honestly
misinterpreted or completely overlooked it. In either event it would
not, I am afraid, be
the first occasion on which a court of law has
misread a statutory provision or overlooked one not brought to its
notice at the
trial. Whichever supposition were the correct one, the
result would be (still assuming the correctness of the applicant's
interpretation)
an unfortunate error of law which, but for the
special prohibition of the statute would afford good ground for an
appeal. But there
would be no gross irregularity in the proceedings,
and therefore no justification for a review.'
Application
of the legal principles to the facts
[30]
Central to the issues which the Arbitrator was
called upon to determine was whether or not there existed an
employment relationship
between Eskom and Mr Mans. Because the
matter concerns a private arbitration between the parties, unlike in
the CCMA or Bargaining
Councils, the existence of an employment
relationship was not a prerequisite for the jurisdiction of the
Arbitrator. As already
stated earlier in this judgment, the
Arbitrator’s jurisdiction is rooted in the agreement between
the parties to submit their
dispute to private arbitration. Thus, the
legal principles applicable to jurisdictional reviews do not find
application in this
review.
[31]
The
reasoning in
Telcordia
is
clear. It has to be shown that the Arbitrator misconceived the
nature of the enquiry to the extent that it deprived a party
of a
fair trial of the issues.
[19]
[32]
In casu
, the
Arbitrator was given the duty and the power to decide, essentially,
whether, on the facts of this matter as pleaded and testified
to in
the arbitration, along with the documentary evidence properly before
him, there existed an employment relationship between
Mr Mans and
Eskom and whether Mr Mans had a reasonable expectation that his
contract would be renewed. In the course of performing
his mandate,
he had to evaluate and determine the evidence, rightly or wrongly,
and determine the applicable law, rightly or wrongly.
If he
committed errors of law in this respect, it has nothing to do with
exceeding his powers, but are errors committed within
the scope of
his mandate, and similarly, cannot be used to substantiate a case for
review.
[33]
It also has to be considered whether, on all the
available material properly before him in this matter, the
Arbitrator’s conclusions
may nonetheless be justified, in which
event his award would equally not be reviewable.
[34]
It is evidence from the award, at least in my
mind, that the Arbitrator appreciated and clearly identified the
salient issues which
he was called upon to determine and the nature
of the enquiry he had to embark upon. He deals with the
material terms of
the Professional Services Contracts, more
particularly the last contract for the period 1 January 2012 to 30
December 2013.
He considers and analysis the documentary and
oral evidence properly before him, which included
inter
alia
that Eskom provided Mr Mans with the
infrastructure necessary for him to render his services. This
included a laptop computer
and printer, office, desk, telephone and
protective clothing. Mr Mans had to provide his services personally
and was not permitted
to delegate his duties and responsibilities to
a third party. Eskom also required Mr Mans to work specific hours and
to report
to the Works Engineering Manager. Mr Mans had to adhere to
some of Eskom’s Policies and Procedures, such as those
concerning
Health and Safety. When working away from the office,
Eskom provided him with and paid for his accommodation and transport
or car
hire. From about 2012, Eskom deducted PAYE from the payments
made to Mr Mans and issued an IRP5 in respect of Mr Mans. The
Arbitrator deals with the ongoing renewals of the contracts and the
delay in reaching a decision regarding the renewal of the contract
during the first part of 2014.
[35]
Following the aforesaid, the Arbitrator concludes
that Mr Mans was not ‘directly’ employed by Eskom.
It is not
clear what the Arbitrator means by ‘directly’
employed. The fact that the Arbitrator may have used or
misinterpreted
the concept of
‘
direct’
employment
does not mean that he
misconceived the nature of the inquiry or his duties in connection
therewith. He 'has the right to be wrong'
on this part of the merits
of the case. To borrow from the words used in
Telcordia,
it is a perversion of language and logic to label mistakes of this
kind as a misconception of the nature of the inquiry.
That
is a far cry from saying that this constitutes a misconception of the
nature of the inquiry. The aforesaid is supported by
the fact that
the Arbitrator states later in his award that he has to ‘…
look
beyond GMEC and examine the true nature of the relationship.’
[36]
The Arbitrator proceeds to have due regard to the
SARS Practice Note dealing with ‘dependant contractors’
for purposes
of PAYE and concludes that: ‘
This
is not determinative of whether or not an employment relationship
exists but certainly instructive.’
It
is evident from the aforesaid that the Arbitrator reasons his way
through the evidence, as he is duty bound to do, without considering
and more importantly, deciding any of the issues in isolation.
[37]
Against
this background the Arbitrator correctly identifies the relevant case
law and deals with the applicable legal principles
with reference to
the evidence before him.
[20]
The Arbitrator, in the result, concludes that applying the principle
of substance over form Eskom exercised supervision and control
over
Mr Mans; that he formed an integral part of Eskom; and he was
economically dependent on Eskom. On this basis, the Arbitrator
finds that ‘…
at
all relevant time
[sic]
Mr Mans
was an employee of
[Eskom].’
[21]
[38]
Even if the Arbitrator’s interpretation of
the material terms and conditions of the Professional Services
Contract and the
way the parties gave effect to these terms and
conditions are wrong, it cannot be said that the wrong interpretation
prevented
him from fulfilling his agreed function or from considering
the matter left to him for decision. On the contrary, in interpreting
the aforesaid the Arbitrator was actually fulfilling the function
assigned to him by the parties, and it follows that the wrong
interpretation could not afford any ground for review by this Court.
[39]
As stated by the Court in
Telcordia
‘it is a fallacy to label a wrong interpretation of a contract,
a wrong perception or application of South African
law, or an
incorrect reliance on inadmissible evidence by the arbitrator as a
transgression of the limits of his power. The power
given to the
arbitrator was to interpret the agreement, rightly or wrongly; to
determine the applicable law, rightly or wrongly;
and to determine
what evidence was admissible, rightly or wrongly. Errors of the kind
mentioned have nothing to do with him exceeding
his powers; they are
errors committed within the scope of his mandate. Otherwise a review
would lie in every case in which the
decision depends upon a legal
issue, and the distinction between procedure by appeal and procedure
by review, so carefully drawn
by statute and observed in practice,
would largely disappear.’
[40]
Thus, in my view, it was neither irrational nor
unreasonable for the Arbitrator to conclude, after having due regard
to the evidence
placed before him, that in light of the ongoing
renewals by Eskom of the Professional Services Contract over many
years, Mr Mans
had a reasonable expectation during 2014 that his
contract would once again be renewed and his employment relationship
with Eskom
would continue as it had before. His expectation was
not inconsistent with his claim that he was an employee of Eskom, as
contended for by Mr Masher. On the contrary, it is in line with
such a claim. It follows that Eskom’s decision
not to
renew Mr Mans’ contract constituted a dismissal, which
dismissal was without a valid reason and in the absence of
a fair
procedure having preceded such decision.
[41]
Eskom also
contends that the Arbitrator, by his conduct, created a perception of
bias against it. The test, however, in claims of
actual or perceived
bias arising from both trial court conduct and judicial association
is the same: a litigant must show that
'a reasonable, objective and
informed person would, on the correct facts, reasonably apprehend
bias.
[22]
In other words, a
litigant must show a reasonable apprehension of bias to succeed.
[42]
There is a
presumption in our law that judicial officers are impartial when
adjudicating disputes
[23]
and,
as it was noted by the Constitutional Court in
Irvin
A & Johnson
,
the threshold a litigant would have to meet to establish a reasonable
apprehension of bias is high.
[24]
[43]
I can see
no reason why these legal principles should not equally apply to
arbitrators, especially where the parties voluntarily
choose the
arbitrator and agreed upon by him or her presiding over the dispute
between them. Generally, the common law and the
Arbitration Act
adhere
to the philosophy that if parties voluntarily choose
arbitration they are bound by their private judge's findings of fact
and rulings
on law, subject to the arbitrator having the necessary
jurisdiction and subject to the arbitrator staying within the terms
of reference.
[25]
[44]
But, compatible with the Constitution,
s 33(1)
of
the
Arbitration Act permits
a Court to interfere with the award on
grounds which are essentially directed at a lack of independence, eg
bias and the other
grounds already dealt with herein above.
[45]
In so far as Eskom’s review application is
premised on the perception that the Arbitrator was bias, I understand
that central
to this ground of review are Eskom’s complaints
that:
45.1.
In the award, the Arbitrator first deal with a
number of observations concerning Eskom’s representative and
his conduct during
the arbitration, prior to the Arbitrator dealing
with the evidence and making his findings; and
45.2.
Throughout the arbitration, it appeared from the
Arbitrator’s conduct that Eskom’s representative (and
therefore Eskom)
were being prejudiced.
[46]
First, it cannot be overstated that it is the
parties who, by agreement voluntarily chose and appointed the
Arbitrator.
[47]
The mere recording by the Arbitrator of his
observations concerning Eskom’s representative cannot in itself
justify a reasonable
apprehension of bias. Moreover, what
transpired between the Arbitrator and Eskom’s representative is
in any event
apparent from the record of the arbitration proceedings
and in so far it is not, I see nothing untoward in the Arbitrator
placing
this on record. These observations also concern the
representative and his conduct and not Eskom itself or the evidence.
[48]
Mr Masher further argued that it appeared from
the Arbitrator’s conduct that Eskom’s representative (and
therefore Eskom)
were being prejudiced. I could find no evidence in
the record to support such a conclusion. I am further of the
considered view
that this is not the conclusion that a reasonable,
objective and informed litigant in possession of the correct facts
would arrive
at.
[49]
For these reasons, I am not convinced that Eskom
has discharged the
onus
to
establish reasonably apprehended bias. Consequently, this
ground of review is without merit and must accordingly fail.
Costs
[50]
As mentioned at the outset of this judgment, at
the commencement of the hearing, the applicant raised points of law
for the first
time. This resulted in the matter being postponed
for a continuation of argument in order to afford the first
respondent
an opportunity to properly consider and deal with these
points. The aforesaid had cost implications as the matter could
have
been finalised on the day but could not. I see no reason
why Eskom should not pay the wasted costs occasioned by this
postponement.
[51]
In the premises, I make the following order:
Order
1.
The application is dismissed.
2.
Eskom is ordered to pay the wasted costs
occasioned by the postponement of the matter on 21 July 2017.
3.
Save for paragraph 2, each party to pay their own
costs.
____________________
L
Malan, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the applicant: Mr D Masher of ENS Africa Inc.
For
the respondent: Advocate J M Bezuidenhout instructed by Clifford
Levin Inc.
[1]
Act 42 of 1965.
[2]
Reference is made in the award to ‘direct employment’
and ‘indirect employment’. This terminology is
also used
in the papers before this Court. I deal with this later in
this judgment.
[3]
(unreported) Case no.: JR950/13 delivered on 14 October 2016.
[4]
(2010) 31 ILJ 2065 (LC).
[5]
(2012) 33 ILJ 1808 (LAC).
[6]
See IMATU &
others v Johannesburg Metropolitan Municipality and others
[2014]
6 BLLR 545
(LAC);
CUSA v
Tao Ying Metal Industries and others
[2009] 1 BLLR 1 (CC).
[7]
See
Supplementary Short Heads of Argument: p 2, para 1.1.8.
[8]
See
Supplementary Short Heads of Argument: p 2, para 1.1.8.
[9]
Although the minute is unsigned, neither party seems to
challenge the veracity of the minute.
[10]
See
Supplementary Short Heads of Argument: p 2, para 1.1.8.
See
Telcordia
Technologies Inc v Telkom SA Ltd
2007 (3) SA
266 (SCA).
[11]
2008 (2) SA 24
(CC); also reported at (2007) 28 ILJ 2405 (CC) and
also at [2007] 12 BLLR 1097 (CC).
[12]
See:
Health and
Other Service Personnel
Trade Union of SA and
others v Member of the
Executive Council for Health, Eastern Cape and
others
(2017) 38 ILJ 890 (LAC);
Democratic
Nursing Organisation of SA on behalf of Du Toit and
another v Western Cape
Department of Health and
others
(2016) 37 ILJ 1819 (LAC);
MacDonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union and
others
(2016)
37 ILJ 2593 (LAC);
Head of
Department of Education v Mofokeng & others
(2015) 36 ILJ 2802 (LAC);
Gold
Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1
BLLR 20
(LAC);
Herholdt
v Nedbank Ltd
(2013)
34 ILJ 2795 (SCA);
Sidumo
and
Another
v Rustenburg Platinum Mines Ltd and
Others
2008 (2) SA 24
(CC); also reported at (2007) 28 ILJ 2405 (CC) and
also at [2007] 12 BLLR 1097 (CC).
[13]
NUM obo Employees v
Grogan NO and another
(2010)
31 ILJ 1618 (LAC) at 33
.
Also see
Volkswagen
SA (Pty) Ltd v Koorts NO
and
others
(2011) 32
ILJ 1892 (LAC);
Member
of the Executive Council: Department of Health (Eastern Cape) v Van
der Walt NO
and
another
(2011) 32
ILJ 944 (LC);
Clear
Channel Independent (Pty) Ltd v Savage NO
and
another
(2009)
30 ILJ 1593 (LC).
[14]
2009 (4) SA 529 (CC).
[15]
(2002) 23 ILJ 358 (LAC).
[16]
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) at pars 85 – 87. See also
Naidoo
v EP Property Projects (Pty) Ltd and others
[2015]
JOL 33184
(SCA) at para 33;
Mxalisa
and others v Dominium Uranium and another
(2013)
34 ILJ 2052 (LC) at para 31.
[17]
(2012) 33 ILJ 279 (LC) at para 8. See also the oft
quoted
Goldfields
Investment Ltd & another v City Council of Johannesburg and
another
1938 TPD 551.
[18]
Commercial Catering
and Allied Workers Union and others v Pick ‘n Pay Retailers
(Pty) Ltd and others
(2012)
33 ILJ 279 (LC) at para 7. See also
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) at para 69 and pars 85 – 87;
Tao
Ying Metal Industry (Pty) Ltd v Pooe NO and others
2007 (5) SA 146
(SCA); (2007) 28 ILJ 1949 (SCA).
[19]
See
UASA v Impala
Platinum Ltd and others
(2010)
31 ILJ 1702 (LC) at para 51.
[20]
Award: pp 19 - 21, pars 48 - 51;
Denel
v Gerber
(2005) 9 BLLR 849
(LAC);
SITA v CCMA and
others
(2008) 28 ILJ 2234
(LAC) as well as s 200A of the LRA.
[21]
Award: p 22, pars 55 - 57.
[22]
Mbana v Shepstone &
Wylie (2015)
36 ILJ 1805
(CC) at para 40. See also
Bernert
v Absa Bank Ltd
2011
(3) SA 92
(CC);
President
of the Republic of SA and others v SA Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) (SARFU
II) at para 48;
Ndimeni v
Meeg Bank Ltd (Bank of Transkei)
2011
(1) SA 560 (SCA).
[23]
SA Commercial Catering &
Allied Workers Union & others v Irvin and Johnson Ltd (Seafoods
Division Fish Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC); (2000) 21 ILJ 1583 (CC)
[2000] ZACC 10
; ;
2000
(8) BCLR 886
(CC) (Irvin & Johnson) at para 12; and SARFU II at
para 41.
[24]
Irvin & Johnson
at para 49.
[25]
Eskom v Hiemstra NO
and others
(1999) 20 ILJ
2362 (LC).