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[2018] ZALCJHB 299
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MEC for Education: North West Province v Rasutha and Others (JR689/14) [2018] ZALCJHB 299 (28 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR689/14
In
the matter between:
MEC
FOR EDUCATION: NORTH WEST PROVINCE
Applicant
and
MP
RASUTHA
EDUCATION
LABOUR RELATIONS COUNCIL
SM
OSMAN N.O
First
Respondent
Second
Respondent
Third
Respondent
Heard: 11 July 2018
Delivered: 28
September 2018
Summary:
Application for condonation for late filing of review – delay
of four months substantial in review involving dismissal
of
individual – in such cases, principles set out in
Queenstown
Fuel
Distributors CC v Labuschagne NO & Others
to
be followed - explanation for delay neither compelling nor reasonable
– no need to consider prospects of success - in any
event,
prospects of success in review application poor – applications
for condonation and review dismissed.
JUDGMENT
COETZER,
AJ
Introduction
[1]
This
is an application to review and set aside an arbitration award issued
by the third respondent (the Arbitrator) on 28 October
2013. The
application arises from the finding that the dismissal of the first
respondent, an educator, was unfair. The first respondent
had been
dismissed by the applicant after he was found guilty of allegations
that he had engaged in a sexual relationship with
a learner. I will,
for purposes of this judgment, refer to the learner in question as
‘the Learner’.
[2]
In
his award, the Arbitrator found that the Learner’s evidence
that the first respondent had engaged in a sexual relationship
with
her was neither probable nor credible. On the strength of this, the
Arbitrator found that on a balance of probabilities the
first
respondent had not committed the misconduct alleged and thus that his
dismissal was substantively unfair. The Arbitrator
consequently
ordered that he be reinstated retrospectively to the date of his
dismissal.
[3]
The
applicant challenges the reasonableness of this finding. In
particular, it contends that the Arbitrator did not properly analyse
the evidence before him and drew certain conclusions which could not
be justified on the available evidence. The applicant contends
that
these irregularities committed by the Arbitrator render the award one
which no reasonable arbitrator could have arrived at.
[4]
The
review application was delivered late and the applicant has sought
condonation for such late filing. For reasons which will
become
clear, it is necessary to deal with the application for condonation
first.
Condonation
[5]
The
arbitration award was received by the applicant on 8 November 2013.
The last day to file the application within the time limits
imposed
by section 145(1) of the Labour Relations Act
[1]
(the LRA), was 20 December 2013. The applicant however only filed the
application on or about 23 April 2014, more than four months
late. By
any measure, this is a substantial delay in the context of dispute
resolution under the LRA.
[6]
The
applicant’s founding affidavit in the application for review
also deals with the application for condonation. The affidvait
is
deposed to by its Acting Deputy Director: Employee Labour Relations
Services and attempts to explain the delay.
[7]
The
deponent submits that after receiving the award, she realised that
the award was unreasonable and she commenced with preparation
of a
submission to ‘the powers that be’ for their approval to
have the award reviewed by this Court. On her own version,
she
commenced with those submissions on 11 November 2013.
[2]
[8]
The
deponent alleges that upon commencing the preparation of the
submission, she realised that she had lost her notes from the
arbitration. Notwithstanding this, she was able to finalise the
submissions one month later, on 11 December 2013. She does not
indicate how she was able to finalise those submissions without her
notes. Conversely, she was able to do so by 11 December 2013,
but she
does not provide any explanation for why a delay of a month was
occasioned.
[9]
The
deponent states that the submissions were then sent to the Acting
Director: Employee Labour Relations Services on 11 December
2013. On
the same day, the Acting Director signed the submission indicating
his support for a recommendation that an application
for review
should be pursued. The signed submission was then only sent to the
Acting Executive Manager: HRM & D on 19 December
2013 who also
signed the submission before the closure of the applicant’s
offices for the period 20 December 2013 to 6 January
2014.
[10]
On
14 January 2014 the submission was signed by the Acting Chief
Financial Officer and then finally approved by the Acting
Superintendent
General on 20 January 2014. I pause to mention that by
this stage the application was already one month late.
[11]
While
the deponent confirms receiving the signed submission on 20 January
2014, there is no explanation as to why it took her almost
another
three weeks for it to be sent to the applicant’s Legal Unit on
10 February 2014. Once this was attended to, the deponent
indicates
that she was ‘informed’ that the Legal Unit had
instructed the State Attorney on 13 February 2014 and that
the State
Attorney briefed Counsel in Pretoria only a month thereafter, on 12
March 2014. By this stage, the application was already
almost three
months overdue.
[12]
The
deponent submits that Counsel was only available to consult with the
applicant on 27 March 2014, but that she was not available
on that
date and accordingly the consultation with Counsel was rescheduled to
4 April 2014. Papers were then prepared by Counsel
and finalised by 9
April 2014. As indicated above, the application was however only
filed with this Court on or about 23 April
2014.
[13]
The
applicant contends that it has prospects of success in that several
irregularities were committed by the Arbitrator and the
award is
‘glaringly unreasonable’. It relies, in principle, on its
grounds of review to demonstrate its prospects of
success. Those
grounds are, for reasons set out hereunder, of little value.
[14]
The
first respondent opposes the application for condonation. He makes
the point in the opposing affidavit that there are several
extended
periods in the applicant’s explanation which are unaccounted
for and where no explanation has been tendered at all.
He contends
that the explanation given is not satisfactory and, further, that the
applicant has ‘very little chance of success’
in relation
to the review application.
[15]
The
law in respect of condonation applications in this Court is
well-established. It is trite that condonation is not simply there
for the taking.
[3]
This Court is
required to exercise its discretion in regard to applications for
condonation, taking account the extent of the delay
and the reasons
therefor, the prospects of success and the prejudice occasioned by
granting or refusing the application.
[4]
[16]
In
making the above determination, the well-known case of
Melane
v Santam Insurance Co. Ltd
provides the following additional guidance:
“
[t]here
is a further principle which is applied and that is without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial, and without good prospects of success, no
matter how good the explanation for delay, an application
for
condonation should be refused.”
[5]
[17]
The
need for expedition in the resolution of labour disputes is similarly
well established. The promulgation of the Practice Manual
in this
Court as well as various amendments the LRA in 2015 have placed
renewed emphasis on the obligations of litigants in this
Court.
[18]
Recently,
in
Makuse
v Commission for Conciliation, Mediation & Arbitration &
Others
[6]
,
this
Court
indicated
that as part of the overall scheme of ensuring effective and
expeditious resolution of labour disputes it will subject
applications for condonation to strict scrutiny.
[7]
This is particularly true of review applications concerning the
dismissal of an individual employee. In this regard the Court made
reference to the following dictum of the Labour Appeal Court in
Queenstown
Fuel Distributors CC v Labuschagne NO & Others:
[8]
“
[24]
… In principle, therefore, it is possible to condone
non-compliance with the time-limit. It follows, however, from what
I
have said above, that condonation in the case of disputes over
individual
dismissals will not readily be granted
.
The excuse for non-compliance would have to be
compelling
,
the case for attacking a defect in the proceedings would have to be
cogent
and
the defect would have to be of a kind which would result in a
miscarriage
of justice if it were allowed to stand
.
[25] By adopting
a policy of strict scrutiny of condonation applications in individual
dismissal cases I think that the Labour Court
would give effect to
the intention of the legislature to swiftly resolve individual
dismissal disputes by means of a restricted
procedure, and to the
desirable goal of making a successful contender, after the lapse of
six weeks, feel secure in his award.”
(Emphasis added).
[19]
I
agree. The present matter involves the dismissal of an individual and
the delay is, as I have indicated, substantial. The delay
is
aggravated by the fact that it was almost entirely self-created and,
more particularly, due to a lack of diligence on the part
of the
applicant.
[20]
Measured
against the yardstick set out in
Queenstown
Fuel Distributors CC
above,
the applicant’s explanation for this delay is neither
reasonable nor compelling. Several delays, of varying durations,
have
simply been glossed over by the applicant, while any explanations
which have been provided are generalised or cursory in nature.
[21]
The
applicant fails to explain why it took the deponent more than a month
to finalise the submission to her superiors on 11 December
2013. The
submission was, as I have indicated above, sent to the relevant
persons for signature and received back by her, duly
signed, on 20
January 2014.
[22]
At
this point the explanation becomes exceedingly vague. The applicant
offers no explanation for why it took the deponent until
10 February
2014 to simply refer the matter to the Legal Unit.
[23]
No
reasons are tendered by the applicant to explain why the State
Attorney dithered for more than a month before instructing Counsel
on
12 March 2014. Such inaction is deeply concerning in circumstances
where the application was already several months overdue.
A
confirmatory affidavit from the State Attorney explaining this delay
was imperative, but not provided.
[24]
Despite
the fact that the application was already at this stage substantially
late, the applicant exhibited little interest in expediting
the
filing of the application for review. The decision of the State
Attorney to brief Counsel who was only available to consult
on 27
March 2014 is indicative of mood prevailing at the time. Once again,
no explanation has been provided by the State Attorney
for a decision
which had the effect of exacerbating the delay even further.
[25]
The
deponent avers generally that she could not attend the consultation
on 27 March 2014 and consequently it had to be rescheduled
to 4 April
2014. No details are provided in this regard.
[26]
I
pause to mention that it is concerning that the applicant appears to
have only informed the first respondent of its intention
to review
the award on 8 April 2014 by way of a letter addressed to the first
respondent’s attorneys. In an affidavit filed
by the first
respondent’s attorney, he records that he personally made
several attempts to contact the deponent during November
and early
December 2013, but was not able to reach her until 9 December 2013.
[27]
It
is also entirely unclear from the deponent’s explanation why it
took a further two weeks from the date that the application
was
‘finalised’, on 9 April 2014, to when it was eventually
filed with this Court on 23 April 2014
[28]
In
short, the explanation tendered by the applicant is neither
reasonable nor compelling, as contemplated by the Court in
Queenstown
Fuel Distributors CC
.
The applicant in fact appears to have litigated at its leisure, with
little regard for the time limits set out in the LRA, the
Rules or
Practice Manual of this Court. The applicant has also failed to take
this Court into its confidence in explaining the
delays occasioned by
it and appears to have simply assumed that this Court would grant
condonation.
[29]
The
Labour Appeal Court has held on several occasions that in the absence
of a reasonable explanation, the applicant’s prospects
of
success are immaterial.
[9]
In
the circumstances, I do not believe it necessary to consider the
prospects of success in determining the application for condonation.
The application for condonation accordingly falls to be dismissed
and, consequently, the application for review along with it.
[30]
To
the extent that I may be wrong in my conclusion above, I believe that
it is prudent for me to set out some discussion of the
applicant’s
prospects of success pertaining to the review application. As will
become clear, in my view, the applicant has
poor prospects of
success.
Relevant
background
[31]
The
first respondent was employed by the applicant as an educator at
Lerona Secondary School. He commenced employment as an
educator
on 5 October 2009.
[32]
On
13 October 2010 the first respondent was charged with the following
offence:-
“
On or
around February 2010 at Le Rona Secondary School, you committed an
act of misconduct as contemplated in the Act when you had
a sexual
relationship with a learner by the name of [name omitted], who is a
learner at the school where you are employed, thereby
contravening
Section 17(1)(c) of the Act.”
[33]
The
reference to ‘the Act’ in the charge refers to the
Employment of Educators Act
[10]
(the Act). It provides, in section 17(1)(c), that an educator ‘must
be dismissed’ if he or she is found guilty of having
a sexual
relationship with a learner of the school where he or she is
employed.
[34]
The
first respondent was found guilty of the charge against him and
dismissed on 10 December 2010. Following an appeal against this
sanction, his dismissal was only confirmed some fifteen months later,
on 20 March 2012. It is not clear from the transcript or
any
documents in the record why this process took so long, particularly
in circumstances where the allegation was serious and held
considerable implications for all parties involved, including other
learners at the school.
[35]
The
delays in this matter are not the exclusive preserve of the
applicant. The first respondent then waited until 26 October 2012
before referring his dispute to the second respondent. He sought
condonation for the late referral and it was granted. Following
an
unsuccessful attempt at conciliation, the matter was referred to
arbitration.
The
arbitration
[36]
The
dispute was arbitrated only some 12 months later, on 8 to 10 October
2013. It is also not clear from the record why such a lengthy
delay
was occasioned in enrolling the dispute for hearing.
[37]
The
applicant led the evidence of four witnesses being the Learner, as
well as her aunt, cousin and another educator at the school,
Ms
Mahonono. The third respondent gave evidence on his own behalf and
also called his fiancé and another educator at the
school who
stayed with him for part of the relevant period, Mr Mokebisi, to give
evidence.
[38]
The
first respondent was required to teach grade 10 and 12 classes and
became the applicant’s Economics and Accounting teacher
in
January 2010. The Learner was in one of the grade 10 classes taught
by the first respondent and was, at the time, 18 years old
due to the
fact that she had repeated grades on two prior occasions.
[39]
The
Learner contends that the first respondent approached her, seemingly
out of the blue, on a Friday afternoon and asked her to
be in a
relationship with him. She says that she accepted his proposal the
following day, when he asked her again. At the time
she was in a
five-year relationship with another man, but had decided to end that
liaison in favour of the first respondent.
[40]
The
Learner stated that the relationship with the first respondent had
started on 5 February 2010 and that she had told two of her
friends
about it. It lasted for approximately one month and had progressed to
a sexual relationship before it ended.
[41]
She
contends that they would rendezvous at school, in the township and at
his home, which was in the vicinity of the school. In
particular, she
indicated that she would arrive in his classroom after school on
Mondays to Thursdays with a friend, at around
16h00, and that the
three of them would speak for a while. The friend, who had
accompanied her to avoid any suspicion of an improper
relationship,
would then leave the Learner and the first respondent to their own
devices (this constituting no more than hugging,
according to the
Learner).
[42]
The
Learner indicated that she and her friend would visit the first
respondent at his home in the evenings. While she initially
indicated
that she could not remember what time these visits would happen, she
later indicated that it was after she had eaten
supper at her aunt’s
house. I pause to mention at this juncture that the Learner’s
aunt indicated in her evidence that
the Learner always arrived home
between 17h00 and 18h00 and that she never left the house in the
evenings.
[43]
The
Learner nevertheless alleged that at these nightly visits, her friend
would leave the first respondent’s home after a
while and that
the Learner and the first respondent would then start kissing, switch
the lights off and have sexual intercourse
in the bedroom. There
were, according to the Learner, two single beds on opposite sides of
the room. This was denied by the first
respondent who was adamant
that there was only one double bed in the room. His version was
confirmed by his fiancé and Mr
Mokebisi.
[44]
The
Learner made several worrying concessions during cross-examination.
She admitted that she was a disobedient learner but stated
that this
only occurred after the relationship with the first respondent had
started. She also could not remember how many times
she had visited
the first respondent at his home, what time she would normally arrive
there or how long she visited him.
[45]
Importantly,
she also could not remember how many times she allegedly had sexual
intercourse with the first respondent. She was
pressed on the fact
that during the disciplinary enquiry she had said that they only had
sexual intercourse on one occasion, while
at the arbitration she had
alleged that it happened more than once. She was unable to provide a
proper reason for this discrepancy.
[46]
The
Learner indicated that she had decided to disclose the relationship
after she was confronted by two educators at the school,
who appear
to have been informed about it by her cousin. Her cousin had
approached the school following a community meeting at
which the
Learner and the first respondent had been implicated for engaging in
a relationship.
[47]
The
first respondent denied that he ever had any sexual relationship with
the Learner or any other learner. The first respondent’s
evidence was that he first became aware of the allegations that he
had had sexual intercourse with a learner on the morning of
Monday, 1
March 2010. After assembly he was approached by Mr Sunday, an
educator at the school, who informed him that there were
allegations
that the first respondent was ‘in love’ with the Learner
and that she had not ‘slept at home’
over the weekend.
[48]
The
first respondent’s evidence was that he was shocked by this. He
had in fact taken leave and had departed for Welkom to
submit his
graduation papers at 12h00 on Thursday 25 February 2010 and had only
returned on Sunday 28 February 2010. This was confirmed
by Mr
Mokebisi who stayed with the first respondent during the relevant
period. The applicant could not refute any of this evidence.
[49]
In
relation to the alleged meetings between the Learner and the first
respondent, he stated that he would return to his home shortly
after
school closed at 14h30 each day, except on Fridays when he taught
extra classes to grade 12s. He accordingly could not possibly
have
been at school with the Learner at 16h00 because he was always at
home at that time. This was confirmed by the evidence of
his fiancé
and Mr Mokebisi.
[50]
In
that regard, he indicated that his fiancé stayed with him at
his home during the period 13 January 2010 to 22 February
2010, when
she moved out to accommodate Mr Mokebisi. Both his fiancé and
Mr Mokebisi confirmed the salient features of the
first respondent’s
evidence.
[51]
After
hearing about the allegations, the first respondent took advice from
his Union and resigned on 15 or 16 March 2010. Following
his
resignation, the management team of the school was ‘chased
away’ by students on 17 March 2010. The Department of
Education
then intervened, dispatching one Mr Dire to the school. Mr Dire told
the first respondent to withdraw his resignation
and to fight the
charge. The first respondent obliged.
[52]
In
order to clear his name, the first respondent approached both the
South African Police Services (“the SAPS”) and
the
Department of Education to investigate the matter. When the SAPS
attended the school, the deputy principal, Mr Motloung, informed
them
that an investigation had revealed no misconduct on his part and the
matter was considered closed.
[53]
Tellingly,
it was common cause that three other learners had similarly accused
him of inappropriate behaviour but had subsequently
withdrawn their
accusations. The Learner had also initially withdrawn her allegation
about the existence of a sexual relationship.
[54]
The
Learner however changed her version again after she discovered that
the first respondent had allegedly ‘badmouthed’
her. As a
consequence, in October 2010 the first respondent was issued with a
notice to attend a disciplinary enquiry and he again
chose to resign.
However, after discussing the issue with his Union he withdrew his
resignation, this time to fight the allegations
against him.
[55]
The
first respondent contended that he was the victim of a plot which had
been hatched by a group of schoolgirls who wished to ‘teach
him
a lesson’. The reason for this, according to him, was because
the grade 10 class had been a problem group, riddled with
repeaters
and disobedient learners whom he tried to discipline. Unsurprisingly
- he contends - his attempts at reform made him
unpopular with
certain learners, including the Learner.
[56]
He
also alleged that when he first joined the school he was told by the
Principal, Mr Jantjie, that he should be careful around
female
students as they had previously landed educators in hot water by
making scurrilous accusations against them. He referred
in particular
to the case of ‘Mr Eddy. This evidence was not really disputed
by the applicant.
The
review test & evaluation of the prospects of success
[57]
The
applicant takes issue with various aspects of the award. However,
upon closer scrutiny the grounds of review set out in the
founding
affidavit reveal that the applicant’s complaints amount to
nothing more than isolated complaints in relation to
perceived
inconsistencies or inaccuracies which appears from the award. In
particular, the applicant is unable to explain how any
of the
Arbitrator’s alleged missteps warrant interference by this
Court.
[58]
The
test on review is a strict one. Trawling through an award in the
hopes of finding a misdirection or error on the part of the
arbitrator is not sufficient for purposes of succeeding on review in
this Court. This was confirmed by the Supreme Court of Appeal
in
Herholdt
v Nedbank Ltd
[11]
:-
“
[25] .... A result will only be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that
was before the arbitrator.
Material errors of fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient
for an award to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable
.”
(Emphasis added).
[59]
In
Head
of the Department of Education v Mofokeng and Others
[12]
the Labour Appeal Court held
,
inter alia,
as
follows:-
“
[30] The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (the SCA)
in Herholdt v Nedbank Ltd (Congress of SA Trade Unions
as Amicus
Curiae and this court in Gold Fields Mining SA (Pty) Ltd (Kloof
Gold Mine) v Commission for Conciliation, Mediation
& Arbitration
& others have held that before such an irregularity will
result in the setting aside of the award,
it
must in addition reveal a misconception of the true enquiry or result
in an unreasonable outcome
.”
and
“
[32] …
To repeat: flaws in the
reasoning of the arbitrator, evidenced in the failure to apply the
mind, reliance on irrelevant considerations
or the ignoring of
material factors etc must be assessed with the purpose of
establishing whether the arbitrator has undertaken
the wrong enquiry,
undertaken the enquiry in the wrong manner or arrived at an
unreasonable result
. Lapses
in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an
order (singularly
or cumulatively) as to result in a misconceived enquiry or a decision
which no reasonable decision maker could
reach on all the
material that was before him or her.” (Emphasis added).
[60]
The
Arbitrator identified the issue which he had to decide as follows at
paragraph 3 of the award:-
“
The issue
to be decided by myself pertains to whether the applicant, Mr. M P
Rasutha is indeed guilty of the charge of having a
sexual
relationship with a learner.”
[61]
This
was the charge the employer had to prove on a balance of
probabilities. It is only once this charge was proven that section
17(1)(c) of the Act became relevant.
[13]
It is clear that the Arbitrator engaged in the correct enquiry.
[62]
The
Arbitrator’s award accurately summarised the evidence led at
the arbitration. The award also reflects a judicious consideration
of
the evidence and weighing up of the competing versions. In doing so
the Arbitrator found that the Learner’s evidence was
‘deplorable’, while the first respondent was a ‘lousy’
witness.
[63]
Faced
with these difficulties, he nevertheless made the following finding
at paragraph 41 of the award:-
“
I am not
satisfied that the respondent had proved on a balance of
probabilities that indeed there was sexual relationship. I am
not
inclined to accept the testimony of a single witness who could not
remember material incidents and or events or either the
frequency of
the serious allegations which she purported. In
Mabona
& Another v Minister of Law & Order & Others
1988
(2) SA 654
(SE) the Court held that the credibility of the witnesses
and the probability or improbability of what is said cannot be
regarded
as separate enquiries to be considered piecemeal. They are
indeed part of a single investigation into the acceptability or
otherwise
of the respondent’s version.”
[64]
While
the exact contours of the exercise undertaken by the Arbitrator in
evaluating the evidence and resolving irreconcilable disputes
of fact
are not apparent from the award, it is clear that he was alive to the
fact that there were two irreconcilable versions
before him. In
resolving them, he relied on a consideration of the probabilities
inherent in the two versions presented at the
arbitration.
[65]
Such
an approach does not necessarily warrant interference by this Court.
In contrast, in
Solidarity
on behalf of Van Zyl v Kpmg Services (Pty) Ltd & others
[14]
this
Court, referring with approval to the unreported judgment of
Transnet
Ltd v Gouws & others
[15]
,
indicated the correct approach to adopt when dealing with credibility
findings as follows:
“
[19] As I
have indicated above, the important question which had to be tackled
by the arbitrator was whether the employer, on a
preponderance of
probability, had established that the first respondent had received
cash bribes from Nu-Liner. The key question
for him was which
version was more probable. He was able to reach a decision on the
probabilities without having to have regard
to the credibility
of each witness.
It is quite
possible for evidence to be assessed purely on its probability,
assuming for the purposes of that assessment that the
witnesses who
testified were credible. It is not necessary for a judicial officer
or arbitrator to find a witness not to be credible
in order to find
that his evidence is not probable
. In
this regard, there is an informative and authoritative article by the
former judge of the Appellate Division, H C Nicholas
"Credibility
of Witnesses" (1985) 102 SALJ 32.
[20]
In
my view, the failure by the arbitrator to make a pertinent finding
on credibility does not demonstrate that he failed to
understand
the proper approach to the assessment of conflicting evidence. The
arbitrator appears clearly to me to have understood
that his primary
task was to resolve the conflicting versions by having regard to the
balance of probability. He applied the correct
judicial technique in
this regard. Accordingly, his failure to address the credibility
of each witness and comment thereon
is not a fatal flaw which
would entitle the applicant to review of his award
.'
(Emphasis added).
[66]
The
Court went on to say that:
“
[16] In
summary, complaints about errors made in the treatment and assessment
of evidence by an arbitrator will normally be bound up
in an
attack on the overall reasonableness of the result, and will not in
themselves constitute separate grounds of review to be
determined
independently from the result (as they did under the 'latent
irregularity' or 'dialectical unreasonableness' approach).
[17] While
arbitrators should always aspire to meet the exacting standard set
by the Supreme Court of Appeal in Stellenbosch
Farmers'
Winery for the proper assessment of conflicting versions by a
finder of fact, an arbitration award that does not
live up to this
standard will not automatically be subject to review.
Arbitrators
are empowered to deal with the dispute with a minimum of legal
formalities, their decisions are immune from appeal,
and the
legislature has set a high bar for reviewing arbitration awards.
Errors committed by an arbitrator in the assessment thereof
will not
necessarily vitiate an award
.”
(Emphasis added).
[67]
The
Arbitrator considered that the Learner had been unable to provide
simple details about various issues, such as how often she
had sexual
intercourse with the first respondent or when this happened. Her
versions in respect of certain issues were contradicted
by the
evidence of the first respondent, whose evidence was corroborated by
his witnesses in all material respects. The Learner’s
evidence
was even contradicted by her aunt’s evidence on one aspect.
[68]
The
applicant also failed to lead a number of critical witnesses to prove
the misconduct which it alleged the first respondent had
engaged in,
including the friend who allegedly accompanied the Learner on her
excursions to the first respondent’s classroom
and home. This
was noted by the Arbitrator.
[69]
Weighing
the probabilities of the two versions before him against the evidence
led at the arbitration, the Arbitrator reached a
decision which
cannot be said to be so unreasonable that no other decision-maker
could have reached the same result. Consequently,
the award is one
which falls within a range of reasonable outcomes.
[70]
In
any event, this Court should be slow to interfere with arbitration
awards where the applicant seeks to impugn credibility findings
of
the arbitrator.
[16]
The
Arbitrator would have had the advantage of being present in the same
room as the persons against whom credibility findings
have been
made.
[17]
[71]
The
applicant also takes issue with the quantum of the award of back-pay,
citing that no evidence was led at the arbitration regarding
the
first respondent’s salary at the time of his dismissal. This is
true. But what the applicant has clearly overlooked is
paragraph 3 of
the pre-arbitration minute which was concluded by the parties on 6
June 2013 clearly recording what the first respondent’s
salary
was at the time of his dismissal.
[72]
In
the circumstances, I can find no reason to interfere with the
Arbitrator’s award. As indicated above, the applicant’s
prospects of success are clearly poor.
[73]
In
the circumstances I make the following Order:-
Order
1.
The
application for condonation is dismissed;
2.
The
application for review is dismissed;
3.
No order is
made as to costs.
____________
N Coetzer
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: Mr M Gwala
Instructed
by: State Attorney
For
the First Respondent: No appearance
[1]
66 of 1995, as
amended.
[2]
This was clarified
in the replying affidavit at paragraph 9. The founding affidavit’s
reference to 11 December 2013 was
erroneous.
[3]
See
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) 532C-E and, more recently, Academic and
Professional
Staff Association v Pretorius NO and Others
(2008) 29 ILJ 318 (LC) at paras 17–18.
[4]
Mashishi v Mdladla NO & others
(2018) 39 ILJ 1607 (LC) at paras 6 –
7.
[5]
Melane v Santam
Insurance Co Ltd
above at 532C-D.
[6]
[2015] 12 BLLR
1216 (LC).
[7]
Ibid at paras 5
and 6.
See also
Food
& Allied Workers Union on behalf of Gaoshubelwe v Pieman’s
Pantry (Pty) Ltd
(2018) 39
ILJ 1213 (CC) at paras 187 – 188;
Mbatha
v Lyster & Others
(2001)
22 ILJ 405 (LAC) at para 18; A Hardrodt
(SA)
(Pty) Ltd v Behardien & Others
(2002) 23
ILJ
1229 (LAC) at paras 3 – 4;
Lentsane
& others v Human Sciences Research Council
(2002)
23
ILJ
1433 (LC) at para 14.
[8]
(2000) 21
ILJ
166 (LAC).
[9]
See
Mziya
v Putco Ltd
(1999)
3 BLLR 103
(LAC) at para 9;
National
Education Health and Allied Workers Union on behalf of Mofokeng and
others v Charlotte Theron Children
'
s
Home
(2004)
25 ILJ 2195 (LAC) at para 23;
Mgobhozi
v Naidoo NO and Others
[2006]
3 BLLR 242
(LAC)
at para 34;
Colett
v Commission for Conciliation, Mediation & Arbitration &
others
(2014)
35 ILJ 1948 (LAC) at paras 38-39.
[10]
76 of 1978
[11]
2013 (34) ILJ 2795 (SCA).
[12]
[2015] 1 BLLR 50
(LAC)
at
paras 30 - 33.
[13]
In the circumstances it is not
necessary for me to deal with whether the provisions of section
17(1) are in conflict with the
provisions of the LRA and, in
particular, the right not to be unfairly dismissed and I accordingly
do not deal with it any further.
[14]
(2014) 35
ILJ
1656 (LC).
[15]
Case no JR206/09 Labour Court 25
April 2012.
[16]
See
Department
of Health (Western Cape) v Democratic Nursing Organisation of SA on
behalf of Cloete & Others
(2016) 37 ILJ 2398 (LC) at para 30.
[17]
See also
Malan
& Another v Law Society, Northern Provinces
2009 (1) SA216 (SCA) at 221 I-J;
R
v Dhlumayo & another
1948 (2) SA 677
(A) at 705-706.