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[2018] ZALCJHB 166
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Dungelo v Ergo Mining (Pty) Ltd and Others (JR1579/15) [2018] ZALCJHB 166 (3 May 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 1579/15
In
the matter between:
VICTOR
DUNGELO
Applicant
and
ERGO
MINING (PTY) LTD
First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second Respondent
BENJAMIN
POPPY WAUCHOPE N.O.
Third Respondent
MOHLALA
N.O.
Fourth Respondent
L
A CELLIERS
N.O.
Fifth Respondent
Heard:
29 November 2017
Delivered:
3 May 2018
Summary:
Application to set aside agreement to withdraw unfair dismissal
dispute in CCMA. Commissioner wrongly took the view that
he had no
authority to postpone the arbitration before him because of a prior
decision by a Senior Commissioner. Commissioner told
applicant that
if he was not prepared to proceed with the arbitration, he would have
to withdraw his dispute. Parties accepted
the Commissioner’s
stance in this regard and concluded agreement to withdraw the
dispute. Agreement founded on a mistake
common to the parties and set
aside.
JUDGMENT
BARNES
AJ,
Introduction
[1]
This is an application
to set aside an agreement which was concluded between the applicant
and the first respondent on 3 August
2015 in terms of which the
applicant withdrew his unfair dismissal dispute in the Commission for
Conciliation Mediation and Arbitration
(“the CCMA”), the
second respondent.
[2]
The application is
opposed by the first respondent. The third and fifth respondents,
both of whom signed the agreement, do not oppose
the application but
filed explanatory affidavits to assist the Court.
The
Agreement
[3]
The agreement is
standard form CCMA issue. It is titled “Agreement to Withdraw
the Dispute” and provides that
“
the
parties agree that the applicant, Dungelo, Victor, hereby withdraws
the application to the CCMA against the Respondent.”
[4]
The agreement lists the
following possible reasons for withdrawal:
“
I
have gone back to work”;
“
I
have found new/alternative work”;
“
I
do not want to take this case further”;
“
I
have settled with my former employer”;
“
I
only want to be paid statutory monies/UIF and I will claim through
Department of Labour.”
[5]
None of these are
selected in this case. Instead, the following is inserted by hand as
the applicant’s reason for the withdrawal
of his dispute:
“
I
cannot continue in the absence of the Union.”
[6]
The agreement states as
follows:
“
Confirmation
by Applicant: I confirm that I signed this agreement to withdraw the
dispute of my own free will. I understand that
there will be no
further process in this matter and that I am not able to re-refer or
re-open this case.”
[7]
The agreement was
signed by the applicant and the first respondent. It was also signed
by CCMA Commissioner Wauchope, the third
respondent and Senior CCMA
Commissioner, Celliers, the fifth respondent.
The
Material Facts
[8]
The applicant was
employed by the first respondent as a security guard. On 15 April
2015 the first respondent dismissed the applicant
after finding him
guilty of misconduct. Aggrieved, the applicant referred an unfair
dismissal dispute to the CCMA on 17 April 2015.
[9]
On 18 May 2015, the
dispute was unsuccessfully conciliated. On the same date, the
applicant referred the dispute to arbitration.
In July 2015, the CCMA
notified the parties that the dispute had been set down for
arbitration on 3 August 2015.
[10]
On 29 July 2015, Ms
Adelaide Ngubeni, the first respondent’s human resources
manager made a written request to the CCMA for
the postponement of
the arbitration on the basis that one of the first respondent’s
key witnesses was unavailable on 3 August
2015. Ms Ngubeni copied the
request for postponement to Mr Japhta Rabothata, a NUM official, and
the applicant’s representative.
[11]
On the morning of 30
July 2015, the CCMA, per Senior Commissioner Teladia, e-mailed a
response to Ms Ngubeni stating that the first
respondent’s
request for the postponement of the arbitration had been declined.
[12]
On the afternoon of 30
July 2015, Mr Rabothata sent an e-mail to Ms Ngubeni stating that he
had consulted with the applicant and
that they consented to the first
respondent’s request for the postponement of the arbitration.
[13]
On 31 July 2015, Ms
Ngubeni forwarded Mr Rabothata’s e-mail to the CCMA and asked
whether, regard being had thereto, the arbitration
could be postponed
by agreement between the parties.
[14]
On 3 August 2015, the
CCMA responded to Ms Ngubeni’s e-mail stating that the request
for postponement was declined and that,
as per a directive from
Senior Commissioner Mohlala, the arbitration would proceed at 1 pm
that day as scheduled.
[15]
The applicant and Ms
Ngubeni attended at the CCMA offices on 3 August 2015. Mr Rabothata
did not. It appears that this may
have been because Mr
Rabothata was under the incorrect impression, based on the e-mail
correspondence referred to above, that the
arbitration had been
postponed by agreement.
[16]
The Commissioner
assigned to arbitrate the dispute was Benjamin Wauchope, the third
respondent. The applicant and the first respondent
are in agreement
that upon arrival at the CCMA on 3 August 2015, Ms Ngubeni again
requested that the arbitration be postponed on
the basis that one of
its key witnesses was unavailable.
[17]
Ms Ngubeni, who deposed
to the first respondent’s answering affidavit, states as
follows in this regard:
“
At
the arbitration hearing on 3 August 2015 I requested that the
arbitration be postponed however the arbitrator, B P Wauchope (3rd
Respondent) refused this request for a postponement on the basis
that:
The prior application for
a postponement had been refused by a Senior Commissioner, namely
Mohlala and he was not in a position
to overrule that refusal. Given
the fact that the parties were present, the arbitration should
proceed. The parties had been notified
timeously of the date for the
arbitration and that my application for a postponement had been
refused.”
[18]
The applicant and the
first respondent are also in agreement that the applicant was
extremely concerned that his representative,
Mr Rabothata, was not
present at the CCMA and made repeated attempts to contact him
telephonically, but to no avail.
[19]
The applicant pleads
that when he could not reach Mr Rabothata, he requested the
postponement of the arbitration. He does so in
the following terms:
“
I
then asked for a postponement, to a later date, even the next day of
4 August 2015, to get a representative, as I could not proceed
without a representative and was not so prepared but the arbitrator
refused to consider my postponement application, saying that
the
senior commissioner Mohlala had already declined postponement, and he
did not have power to re-consider my application.”
[20]
The applicant pleads
that Commissioner Wauchope then told him that if he was not prepared
to proceed with the arbitration, he would
have to withdraw his
dispute.
[21]
In its answering
affidavit the first respondent denies that the applicant requested
the postponement of the arbitration on 3 August
2015. The first
respondent, however, pleads as follows:
“
The
Applicant informed the arbitrator that he cannot continue without his
representative. The arbitrator then enquired of the Applicant
whether
he was withdrawing his application.”
[22]
As stated above,
Commissioner Wauchope filed an explanatory affidavit. In it he states
that
“
No
application for postponement was made or requested by either the
respondent party or the applicant party, on the day.”
Notably, this conflicts with the
first respondent’s version that Ms Ngubeni requested
Commissioner Wauchope to postpone the
arbitration on 3 August 2015.
[23]
Commissioner Wauchope
goes on to say the following:
“
The
applicant, Mr Dungelo, stated to me that he cannot proceed to partake
in the arbitration without the presence of his union,
after his
repeated attempts to contact the NUM office, and the official proved
fruitless.
The respondent’s
representative informed me that it had made a request for a
postponement of the hearing and its application
was declined. She
further stated that consequent to the application being declined, the
respondent was ready to proceed with its
case.
I
then enquired from the applicant regarding his intentions; whether or
not he was ready to proceed with the hearing, and he reiterated
that
he cannot proceed under the circumsta
nces. I explained
to him that as the application for postponement was declined by the
CCMA the matter must proceed as set down.
The applicant could not explain the
absence of his union representative, and neither could he make
contact with him telephonically
on the day of the hearing.
It was
explained to the applicant that the request for postponement was
received, considered and had been declined, and the matter
had to
proceed as set down or be dismissed.
He chose to withdraw the
dispute.” (Emphasis added)
Analysis
[24]
There are disputes on
the papers pertaining to what the applicant was told in relation to
the agreement, with the first respondent
(as well as Commissioner
Wauchope) contending that the nature and consequences of the
agreement were fully explained to him and
the applicant contending
that this was not done. In the view I take of the matter, it is not
necessary to decide these disputes.
[25]
As is apparent from the
above, there is also a dispute on the papers as to whether the
applicant requested the postponement of the
arbitration when he could
not reach Mr Rabothata. This too does not matter. What is clear
is that the applicant stated that
he was not able to proceed with the
arbitration in the absence of his representative. This is common
cause on the pleadings and
is confirmed by Commissioner Wauchope in
his explanatory affidavit.
[26]
In the face of this
Commissioner Wauchope committed a fundamental error of law, which is,
in my view, determinative of the matter.
Commissioner Wauchope
wrongly believed that by reason of the CCMA’s prior decision to
refuse the first respondent’s
postponement application, he had
no power to postpone the arbitration notwithstanding the changed
factual situation before him,
that is, the unexpected absence of the
applicant’s representative.
[27]
Commissioner Waucope
clearly had the authority to postpone the arbitration by virtue of
these new facts. He would have been entitled
to either re-visit the
first respondent’s postponement application or to have treated
the applicant’s statement that
he was unable to proceed without
his representative as a fresh postponement application. He wrongly
took the view that he had no
authority to postpone the matter, solely
because of a prior decision by a Senior Commissioner. This was
unfortunate, the more so
because both parties before him sought the
postponement of the arbitration for what appear to be legitimate
reasons.
[28]
Counsel for the first
respondent conceded in argument before me that Commissioner
Wauchope’s stance in this regard constituted
an error of law.
[29]
What was the
consequence of this error? It is common cause on the pleadings that
Commissioner Wauchope effectively told the applicant
that if he was
not prepared to proceed with the arbitration in the absence of his
representative, he would have to withdraw his
dispute.
[30]
The first respondent
put it as follows in Ms Ngubeni’s answering affidavit:
“
The
Applicant informed the arbitrator that he cannot continue without his
representative. The arbitrator then enquired of the Applicant
whether
he was withdrawing the application.”
[31]
The conclusion of the
agreement to withdraw the dispute was therefore triggered by
Commissioner Wauchope’s erroneous belief
that he had no
authority to postpone the arbitration and his stance that if the
applicant was not prepared to continue, he would
have to withdraw the
dispute. The parties accepted the Commissioner’s stance in this
regard and it was in these circumstances
that the agreement was
concluded.
[32]
Having
regard to the above, the agreement was founded upon a mistake common
to the parties. In
Dickenson
Motors (Pty) Ltd v Oberholzer
[1]
,
it was held that:
“
An
agreement founded upon a common mistake, which mistake is impliedly
treated as a condition which must exist in order to bring
the
agreement into operation can be set aside, formally if necessary or
treated as set aside and as invalid without any process
or
proceedings to do so.”
[2]
[33]
This is such a case and
the agreement accordingly falls to be set aside. The parties were in
agreement that costs should follow
the result.
[34]
I accordingly make the
following order:
Order
1.
The agreement to
withdraw the dispute concluded on 3 August 2015 under case number
GAEK 2996/15 is set aside;
2.
The second respondent
is ordered to set this matter down for arbitration before a
commissioner other than the third, fourth or fifth
respondents;
3.
The first respondent is
ordered to pay the applicants’ costs.
__________________________
Heidi
Barnes
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Mr Makinta of Makinta Attorneys
For
the First Respondent: Mr Rudolph
Instructed
by:
Mendelow-Jacobs Attorneys
[1]
1952 (1) SA
443
(AD) at 450 C –E.
[2]
See also
Concor
Projects (Pty) Ltd T/A Concor Opencast v Commission for Conciliation
Mediation and Arbitration and Others
(2013) 34 ILJ 2217 (LC) at paras 26 and 27 and
Concor
Projects (Pty) Ltd T/A Concor Opencast v Commission for Conciliation
Mediation and Arbitration and Others
(2014) 35 ILJ 1959 (LAC) at para 40 in which this dictum was
applied.