About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2017
>>
[2017] ZALCPE 15
|
|
Buffalo City Metropolitan Municipality v SALGBC and Others (PR204/16) [2017] ZALCPE 15 (25 October 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
PORT
ELIZABETH
CASE
NO: PR 204/16
In
the matter between
BUFFALO
CITY METROPOLITAN
MUNICIPALITY
APPLICANT
and
SALGBC
FIRST RESPONDENT
PHUMULELE
DHLODHLO N.O.
SECOND RESPONDENT
LUTHER
TEMBINKOSI KOKOSE
THIRD RESPONDENT
Heard:
25.10.2017
Delivered:
25.10.2017
SUMMARY:
Ex tempore
judgment – review – undue delay.
JUDGMENT
STEENKAMP
J
Introduction
1.
This is an application to have a fairly unusual ruling by a panellist
of the South African Local Government
Bargaining Council, Ms Phumele
Dhlodhlo, reviewed and set aside. It stems from the application by
the applicant in this application,
Buffalo City Municipality, to have
an unfair dismissal referral by an employee, Mr Luther Tembinkosi
Kokose, the third respondent,
dismissed because of undue delay.
2.
The arbitrator found that neither party could be directly held
responsible for the delay and that the arbitration
should proceed. In
effect, therefore, she dismissed the municipality’s
application. It is that ruling that the municipality
now seeks to
have reviewed and set aside.
3.
The matter has a sorry history, conveniently summarised by Mr
Schultz,
who acts for the municipality, in his heads of
argument. I am indebted to him for his concise summary and I will
draw from that
in setting out the brief and unfortunate background.
Background
4.
Mr Kokose, the employee, was dismissed on the 3
rd
of
August 2010. Seven years later it has not been decided whether that
dismissal was fair or not. And it is not for this court
to decide
either.
5.
He did immediately, or at least within the prescribed time period,
refer an unfair dismissal dispute to the
bargaining council on the
17
th
of August 2010. Matters proceeded swimmingly at that
stage.
6.
Conciliation was scheduled for the 8
th
of October. It
failed. Mr Kokose requested arbitration on the 25
th
of
November. He then applied for legal representation on the 6
th
of January 2011. A pre-arbitration meeting took place in September
2011. During all of this time it appears that there was no undue
delay by either party and the arbitration hearing was scheduled for
the 26
th
of January 2012. That initial delay, as Mr
Schultz
submitted, appears to have been a systemic delay and
again, not due to the fault of either party.
7.
The arbitration was set down for a further two days in May 2012 and
it is at that stage that matters went awry.
In May 2012 the
municipality asked for a postponement in order to launch contempt of
court proceedings against a witness who refused
to comply with a
subpoena, a Ms Fergus, who had relocated to Botswana. Again, it
appears due to systemic delays that the contempt
proceedings in this
court were only concluded in July 2013 when the witness agreed to
make herself available.
8.
Then, on the 9
th
of January 2014, the municipality asked
the bargaining council to set the matter down afresh. That was done.
It was set down for
hearing on the 7
th
of May 2014, but it
was again postponed, and although it appears to have been due the
unavailability of the employee’s attorney,
it must be noted
that that postponement was by agreement.
9.
The arbitration was then set down for the 4
th
of June
2014, but then neither party’s attorney was available. (As an
aside, this is perhaps one of the reasons why the default
position
for misconduct arbitration proceedings is that no legal
representation is allowed).
10.
Be that as it may, it appears -- and Mr
Schultz
quit properly
conceded -- that up until this stage the employee cannot really be
faulted for the delays that had by now spanned
almost four years.
11.
However, in July 2014 the employee terminated his then attorneys’
mandate -- Russell Incorporated -- and appointed
Ntshabe Attorneys.
It is at this stage where the employee was let down by his legal
representative. The new attorney, Ntshabe,
told the municipality’s
attorneys, Smith Tabata Inc, that he (Nthsabe) would apply to the
bargaining council to have the
matter set down afresh, but he invited
settlement proposals. He asked the municipality to respond within 20
days. The municipality
did not.
12.
Despite that, for 16 months Ntshabe Attorneys did nothing. It was
left to the municipality in January 2016 to set the
matter down for
arbitration again. It is really that delay that forms the crux of the
application before the bargaining council
and subsequently the review
before this court.
13.
The arbitrator, faced with that sorry history, accepted that she did
have the discretion to rule on the application to
have the dismissal
referral dismissed because of undue delay. But as I have said, she
found that it should proceed.
14.
In doing so the main factors that she took into account were the
following: Firstly, she says, “
It is my view that throughout
these proceedings the delays cannot be attributed to one party but
circumstances due to the control
of the parties.”
It seems
that what she meant was circumstances out of the control of the
parties. In this regard she took into account the resignation
of an
earlier commissioner from the council; the unavailability of records
for the employee’s then legal representatives;
the
reconstruction of the record – something that the commissioner
thought would be a futile exercise; and the fact that
the council had
closed the file. She also took into account that postponements were
at various times requested by both legal representatives
and
concluded that neither party could be held directly responsible for
the delay. It is in those circumstances that she ordered
the council
to reschedule the arbitration before another commissioner.
Grounds
for review
15.
In considering the reasonableness of this ruling this court must take
into account the well-known test set out in
Sidumo v Rustenburg
Platinum Mines
2008 (2) SA 24
(CC)
, Herholdt v Nedbank Ltd
[2012] 11 BLLR 1074
(SCA) and subsequently summarised by
the Labour Appeal Court in
Goldfields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC
)
. In that judgment the LAC rejected
the notion of a process-related review and ruled in paragraph 15:
“
What is
required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the
reasonableness test established by Sidumo. The gross irregularity is
not a self-standing ground insulated or standing independent
of the
Sidumo test. That being the case it serves no purpose for the
reviewing court to consider and analyse every issue raised
at the
arbitration and regard the failure by the arbitrator to consider all
or some of the issues, albeit it material, as rendering
the award
liable to be set aside on the grounds of process related review. In
short: A reviewing court must ascertain whether the
arbitrator
considered the principal issue before him or her; evaluated the facts
presented at the hearing and came to a conclusion
that is
reasonable.”
16.
I will return to
Goldfields
, but will first consider the
question whether the commissioner could in fact exercise the
discretion that she did. In this regard
Mr
Schultz
referred to
a number of cases where a similar discretion in this court and other
superior courts was accepted. It has its origin,
as described as long
ago as 1927, in
Pathescope Union of South Africa v Mallinick 1929
(AD)
as follows:
“
The plaintiff
may in certain circumstances be debarred from obtaining relief to
which he would ordinarily be entitled because of
unjustifiable delay
in seeking it. It is a doctrine well recognised in English Law and
adopted in our own courts. It is an application
of the
maxim
vigilantibus et non dormientibus lex subveniunt.”
And
the court then goes on to quote from the judgment in
Lindsay
Petroleum Co v Hurd
:
“
The doctrine of
laches in Courts of Equity is not an arbitrary or technical doctrine.
Where it would be practically unjust to give
a remedy, either because
the party has by his conduct done that which must fairly be regarded
as equivalent to a waiver of it ….
But in every case if an
argument against relief, which otherwise would be just, is founded
upon mere delay, that delay of course
not amounting to a bar by any
statute of limitations, the validity of that defence must be tried
upon principles substantially
equitable. Two circumstances always
important in such cases are the length of the delay and the nature of
the acts done during
the interval which might affect either party and
cause a balance of justice or injustice in taking the one course or
the other
in so far it relates to remedy ... The determination of
such a question must largely depend on the turn of mind of those who
have
to decide, and therefore be subject to uncertainty, but that I
think is inherent in the nature of the inquiry.”
17.
It is apparent from that
dictum
that it is in the discretion
of the decisionmaker to grant the application or not, taking into
account the length of the delay
and the nature of the acts done
during the interval, as well as the balance of justice or injustice.
18.
That has been accepted also by the High Court in
Sanford v
Haley
2004 (3) SA 296
(C) where the late Moosa, J said:
“
In terms of
section 173 of the Constitution, the High Court has the inherent
power to protect and regulate its own process and to
develop the
common law taking into account the interests of justice. It has an
inherent jurisdiction to control its own proceedings
and as such has
power to dismiss a summons or an action on account of the delay or
want of prosecution. The court will exercise
such powers sparingly
and only in exceptional circumstances because the dismissal of an
action seriously impacts on the constitutional
and common law right
of a plaintiff to have the dispute adjudicated in a court of law by
means of a fair trial. The court will
exercise such power in
circumstances where there has been a clear abuse of the process of
court.”
And he emphasised that
the test is a stringent one.
19.
It is against that background also that this court has to decide
whether the arbitrator exercised her discretion properly.
20.
At the hearing this morning Mr
Schultz
also referred to
Ferreira v Tyre Manufacturers Bargaining
Council, what
he said was an unreported a judgment of my brother Lagrange J, in
this court, but that I found during the tea
adjournment as having
since been reported at (2013) 34
ILJ
364 (LC). In that case
Lagrange J accepted that arbitrators in a bargaining council or the
CCMA may entertain similar applications.
But because a commissioner
or panellist of the bargaining council performs a quasi-judicial
statutory dispute resolution function
and exercises no inherent
jurisdiction like a court, their powers must be sourced in the
provisions of the governing statutes.
He then accepted (in paragraph
14) that a commissioner or an arbitrator charged with the obligation
to determine a dispute can
only dismiss an applicant’s claim on
the basis of excessive delays in prosecuting the claim, if that is a
power which is
expressly granted or is reasonably necessary for
exercising their express powers. He accepted, and I am summarising,
that a Commissioner
of the CCMA or a panellist of the Bargaining
Council does indeed have such a power. On the facts before him, where
the arbitrator
in that case did indeed dismiss a referral because of
undue delay, Lagrange J accepted (and I daresay correctly):
“
There was
nothing unreasonable about the arbitrator’s exercise of his
power to dismiss the applicant’s claim for the
reasons he gave
on the facts before him.
”
21.
I respectfully agree with Lagrange J that an arbitrator of the
Bargaining Council does have such a power. The question
then remains
whether in this case the arbitrator exercised that power and that
discretion in a way that is so unreasonable that
no other arbitrator
could have come to the same conclusion.
22.
Returning to
Goldfields,
the questions to be asked as set out
in paragraph 20 are the following:
“
1. In terms of
his or her duty to deal with the matter with the minimum legal
formalities, did the process that the arbitrator employed
give the
parties a full opportunity to have their say in respect of the
dispute?”
23.
In this case there can be no contest as far as that is concerned.
Both parties had a full say and in fact both parties were legally
represented.
“
2. Did the
arbitrator identify the dispute he or she was required to arbitrate?”
24.
Again, the arbitrator did so and exercised that discretion
accordingly.
“
3. Did the
arbitrator understand the nature of the dispute her or she was
required to arbitrate?”
Again,
that is not disputed. The arbitrator did understand what she had to
do.
“
4. Did he or
she deal with substantial merits of the dispute?”
The
answer to this, again, is yes. She dealt with the substantial merits
of the dispute and applied her mind to the issues and the
evidence
before her.
25.
The overarching and remaining question is the last one, namely:
“
Is the
arbitrator’s decision one that another decision maker could
reasonably have arrived at based on the evidence?
”
26.
Mr
Schultz
submitted that she did not, in giving the reasons that she did in the
paragraphs of the award that I have just referred to. Having
had
regard to those reasons, as well as the comprehensive evidence that
served before the arbitrator, I must state that this court
may -- and
probably would -- have exercised its discretion differently. The
primary issue that I debated with Ms Mphosa in her
argument is the
delay of some 16 months occasioned by the inaction of her
predecessor, Mr Ntshabe. In that regard this court has
held on
numerous occasions, starting with
Saloojee
’s
case
[1]
,
more than 50 years ago, that there is an extent beyond which a
litigant cannot escape the consequences of the negligence of his
chosen representative. However, this court is not sitting as a court
of first instance or as an arbitrator. It is sitting on review
and it
must decide whether the discretion that the arbitrator in this case
exercised was done, not only in an unreasonable manner,
but in a
manner that was so unreasonable that no other arbitrator could have
come to the same conclusion.
27.
Of that I am not convinced. The arbitrator applied her mind to the
evidence before her. She was alive to the delays caused
by the
employee, and more importantly by his then attorney. She noted that
at various times during the process both parties asked
for
postponements. It is so that she does not expressly deal with the
specific delay of 16 months, although she does take into
account
various factors that were occasioned by the closing of the file and
other actions or inaction on the part of the bargaining
council.
28.
On balance, when considering the discretion exercised by the
arbitrator, I must also consider the words of the Appellate
Division
in 1927 in
Pathescope Union
where they said:
“
The
determination of such a question must largely depend on the turn of
mind of those who have to decide and therefore be subject
to
uncertainty, but I think that is inherent in the nature of the
inquiry. The exercise of the discretion especially when considering
a
review rather than appeal must largely depend on the turn of mind of
the decisionmaker, that is, the arbitrator.”
In
exercising that discretion, in my view, the arbitrator did not come
to a conclusion that is so unreasonable that no other arbitrator
could have come to the same conclusion. The award must therefore fail
and it will be in the interests of justice that the original
dispute
be finally determined.
Costs
29.
That leaves the question of costs. This court is enjoined to take
into account the requirements of both law and fairness.
In that
regard, although in law the municipality has been unsuccessful, I am
not inclined to award costs. The court cannot close
its eyes to the
delays occasioned by the employee and his previous attorneys. It
would be inequitable to order the municipality
to pay costs in those
circumstances. I also take into account that this ruling means that
it is not the end of the matter and that
it will have to be decided
afresh. In those circumstances also, I do not think a costs award is
warranted.
RULING
1.
The application for review is dismissed.
2.
There is no order as to costs.
3.
The First Respondent, that is the South African Local Government
Bargaining Council, must set down the unfair dismissal
dispute down
for arbitration before the 30
th
of November 2017.
---ooo---
______________________________
A J STEENKAMP
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT
ADV N C F SCHULTZ
INSTRUCTED
BY
Smith Tabata Inc.
FOR
THE THIRD RESPONDENT
Ms F A
MAPHOSA
of
Maphosa & associates.
IKAMVA
VERITAS TRANSCRIPTION SERVICES CONSORTIUM
DIVISION OF EOH LEGAL
SERVICES (PTY) LTD
PORT
ELIZABETH
TRANSCRIPTION
CERTIFICATE
LABOUR
COURT
CASE OF
BUFFALO CITY
MUNICIPALITY v
KOKOSE, L
CASE
NUMBER
PR 204/16
FILING
NUMBER
27.11.17
TOTAL
NUMBER OF
CD’S
1
(1
FILE – JAVS – 21MINS)
TOTAL
NUMBER OF
PAGES
17
DATE
STARTED
08.11.2017
DATE
COMPLETED AND RETURNED
08.11.2017
RATE
URGENT
I,
A Wolmerans, hereby certify that the transcription is, to the best of
my ability, a true and correct copy of the original evidence
which
was mechanically recorded.
Case
typed verbatim.
SIGNATURE
[1]
Saloojee
NNO v Minister of Community Development
1965
(2) SA 135
(A). See also
Silplat (Pty) Ltd v CCMA
[2008] ZALC 33
;
[2011] 8
BLLR 798
(LC).