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[2018] ZALCJHB 293
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Nkosi v Cachalia NO and Others (JR1992/2010) [2018] ZALCJHB 293 (25 September 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
no: JR 1992/2010
In
the matter between:
PAULOS
NKOSI
Applicant
and
COMMISSIONER
AHMED CACHALIA N.O.
First
Respondent
METAL
AND ENGINEERING INDUSTRIES BARGAINING COUNCIL
Second
Respondent
WELLMAX
METAL PRESSING
Third
Respondent
JEANINE
EXECUTIVE PLACEMENTS
Fourth
Respondent
Heard
:
19 September 2018
Delivered
:
25 September 2018
Summary:
(Review – failure to file relevant portions of the record –
application dismissed)
JUDGMENT
LAGRANGE
J
Background
[1]
There were two applications before the court when it sat on 19
September 2018. The first is an application to review and set
aside a
ruling by an arbitrator that the fourth respondent (‘JEP’)
was his employer and his unfair dismissal dispute
should be
arbitrated on that basis. The second is a counter-application by the
third respondent (‘Wellmax’) to dismiss
the review
application. Since the second application could result in the
substantive review application not being considered,
that application
was dealt with and judgment was reserved.
The
arbitrator’s jurisdictional ruling
[2]
On the basis that the termination of the applicant’s employment
had been affected by the JEP and his unemployment insurance
form had
been issued by JEP, by so doing, the arbitrator found that JEP had
admitted being the applicant’s employer. He also
considered
evidence that the third respondent (‘Wellmax’) had paid
the fourth respondent monthly for salaries of employees
placed by the
fourth respondent with it. He considered the fact that the applicant
had chaired disciplinary enquiries on behalf
of Wellmax but held that
did not indicate that he was an employee of Wellmax, as it was also
consistent with him being contracted
by JEP to work for Wellmax.
[3]
The arbitrator did not find it was necessary to determine whether or
not the purported contract of employment between himself
and Wellmax,
which was adduced by the applicant in the course of his evidence was
a fraudulent or not. At the hearing, both parties
provided oral and
documentary evidence and witnesses were cross-examined.
Previous
Labour Court proceedings
[4]
The review and related applications have come before this court on a
number of occasions. I will only outline those earlier
proceedings
most relevant to the background of the applications before the court.
The record was lodged with the registrar by the
second respondent on
3 September 2010, and included one compact disc containing the
mechanical recording of the proceedings. The
applicant chose not to
transcribe the record at that stage.
[5]
The review application was initially enrolled on 14 July 2017.
It was heard by the Honourable Acting Justice De Heuss
but he was
unable to deliver judgment and the matter was re-enrolled for a
hearing
de novo
on 20 July 2018.
[6]
At the end of the hearing on 20 July 2018, Boda AJ made the following
order
1. The record has not been
transcribed and the notes of the arbitrator are very difficult to
comprehend.
2. The Applicant is ordered to
deliver the transcribed record of the proceedings under review within
14 days of the order
after which the normal rules will apply.
3. The matter is postponed sine
die.
4. Each party to pay its own
costs.
[7]
At that hearing, the applicant represented himself. When the
matter was re-enrolled on 19 September 2018, he was represented
by an
attorney.
[8]
On 25 July 2018, the applicant filed an explanatory affidavit, in
which he claimed that he had approached the bargaining council
and
had been advised that the recording of the proceedings was no longer
available as the bargaining council does not retain records
after
five years. He also claimed that Boda AJ, had said that if the
recordings could not be obtained, the matter should proceed
on the
available record. He made no attempt to have the notes of the
commissioner typed up which the judge had stated were very
difficult
to comprehend.
[9]
On 17 August 2018, Wellmax launched the counter application to
dismiss the review application in which some of the contentions
of
the applicant about what had transpired at the hearing before Boda AJ
were disputed.
[10]
Mr Du Randt, who appeared for Wellmax, claimed that at the previous
hearing before Boda AJ, the applicant had informed Du Randt
that he
had the mechanical record of the arbitration proceedings. He
also said that the judge had explained at length to
the applicant the
need to transcribe the record and to have the arbitrator’s
notes typed. Mr Mashego, who appeared
for the applicant on 19
September could not shed any light on this as he was not present.
[11]
In order to clarify what transpired at the hearing, I have listened
to the digital audio record thereof. What is abundantly
clear is the
following:
11.1 Acting Judge Boda spent
considerable time patiently explaining to the applicant that it would
be in the applicant’s own
best interests to have the mechanical
record transcribed.
11.2 The applicant repeatedly made it
clear that he intended to rely on pages 23 to 28 of the applicant’s
bundle of documents.
These pages contained the arbitrator’s
handwritten notes of the evidence.
11.3 He also made it clear that the
reason he had not had the mechanical record transcribed was that, he
did not see it as necessary
for the purposes of the review
proceedings and that he was relying on the provisions of Rule 7A(5)
and (6) of the Labour Court
rules which state:
(5) The registrar must make available
to the applicant the record which is received on such terms as the
registrar thinks appropriate
to ensure its safety. The applicant must
make copies of such portions of the record as may be necessary for
the purposes of the
review and certify each copy as true and correct.
(6) The applicant must furnish the
registrar and each of the other parties with a copy of the record or
portion of the record, as
the case may be, and a copy of the reasons
filed by the person or body.
11.4 The judge also advised that if
the applicant wished to rely on the arbitrator’s notes of the
evidence he should have
them typed and confirmed by the arbitrator.
11.5 During the hearing, Mr Du Randt
told the court that the applicant had informed him that he had the
mechanical record of the
hearing. The applicant never disputed this
during the hearing.
11.6 Before handing down his order,
Judge Boda asked the applicant to elect whether or not to proceed
without transcribing the record.
11.7 The applicant then agreed that he
would have the record transcribed within 14 court days.
11.8 Although the order does not say
so, the judge also made it clear that if the applicant wished to rely
on the arbitrator’s
notes of the evidence that, he must have
those typed up so they are legible.
11.9 The applicant then sought to
argue the merits of his case relying on what he claims transpired in
the hearing as set out in
his heads of argument.
11.10 It was at that juncture that the
judge explained again that he could not consider an account of the
evidence at the arbitration,
which was presented in argument by the
applicant, and he proceeded to hand down the order above.
[12]
Irrespective of what transpired at the previous hearing, when the
matter came before me, the applicant had neither transcribed
the
record, nor had the arbitrator’s notes been typed up and
confirmed by the arbitrator. Accordingly, he had not complied
with the express terms of the written order. No doubt his
‘explanatory affidavit’ was filed to explain his
non-compliance
therewith. In his explanatory affidavit he made
no effort to justify why he did not at least have the arbitrator’s
handwritten notes typed and confirmed, if that is what he was content
to rely on. What is patently misleading in the applicant’s
affidavit is his allegation in paragraph 3 of his affidavit that:
The Honourable Acting Justice Boda
indicated that if the recordings could not be obtained from the
Second Respondent, the matter
would proceed on the record that is
currently before the court.
That
was clearly not a true reflection of what Judge Boda said and was
also denied in Wellmax’s founding affidavit in the
dismissal
application. The applicant did not respond to that denial by filing
any answering affidavit.
The
dismissal application
[13]
The third respondent seeks the dismissal of the review essentially on
the basis that the applicant has failed to file the portions
of the
record relevant to the review and ignored a court order to that
effect. If further points out that, it would face enormous
prejudice
in having to defend a dispute which is so old and where JEP, which
was held to be the applicant’s employer by the
arbitrator was
already liquidated in 2010.
Evaluation
[14]
The central issue to determine is whether the review can be
determined without either the record of the evidence being
transcribed
or the arbitrator’s handwritten notes being typed
and confirmed by the arbitrator.
[15]
An applicant in review
proceedings can elect only to rely on certain portions of the record.
See e.g.
Lubbe v Roop NO
[1]
where
the court held
Rule 7A(5) … does not require a
party to reproduce the whole record of the arbitration proceedings
when bringing a review
application. … Obviously, where it is
not necessary to reproduce the whole record an applicant must
nonetheless reproduce
those portions which both support and tend to
contradict its case on review. If a respondent believes the record
produced is inadequate,
it should indicate this in its replying
affidavit, so any deficiencies in the record for the purposes of a
proper consideration
of the application may be remedied.
[16]
In this application, the Wellmax contends the transcription of the
record is necessary, so the parties do not agree that only
a limited
portion of the record is necessary for the purposes of the review.
[17]
The difficulty the applicant has is that, he does not contend that no
portion of the record of oral evidence needs to be relied
on. He
claimed that the arbitrator’s notes were sufficient, but then
declined to even have these typed up and verified despite
the
clearest indication from Judge Boda that he must do that if he wanted
to rely on them. Secondly, those notes were notes of
evidence given
by witnesses at the hearing. The best record of that evidence
ought to be the transcription of the mechanical
recording, but the
applicant and his attorneys decided not to transcribe that. The
applicant cannot rely on heads of argument
which purport to recount
evidence. Further, if regard is had to the applicant’s grounds
of review set out in his founding
affidavit, those essentially are
that the arbitrator’s award was one that was unreasonable based
on his alleged failure to
consider certain evidence. That being the
case, the applicant cannot hardly expect the court on review to
consider those allegations
without an appreciation of other evidence
before the arbitrator having a bearing on the evidence that was
supposedly ignored. Accordingly,
in my view the applicant has failed
to provide an adequate record of the relevant evidence.
[18]
Further, in
JDG
Trading (Pty) Ltd t/a Russells v Whitcher
[2]
,
the Labour Appeal Court
held that the Labour Court should not have considered the review
application before it because it had only
been provided with the
commissioner’s handwritten notes and an untranscribed tape
recording. “In the absence of the
transcribed record”,
Goldstein AJA held, “the court a quo was in no position to
adjudicate properly on the application
before it and ought
accordingly to have dismissed it”
[19]
In light of the above, I am satisfied that, quite apart from any
delays in the prosecution of the review which the applicant
might be responsible for, the court is not in a position to
adjudicate the review application properly on the limited record
filed
by the applicant and the application should be dismissed.
[20]
As Wellmax did not seek an order of costs, no order of costs will be
made. The applicant did not seek costs either.
Order
[1]
The review application is dismissed
[2]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R K Mashego
RESPONDENT:
J Du Randt of Du Randt, Du Toit, Pelser Attorneys
[1]
(2012) 33
ILJ
1695 (LC) at par 7
[2]
[2005] ZALC 1
;
[2001] 3 BLLR 300
(LAC) 41 At 303 pars 11–13