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[2018] ZALCJHB 313
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Sibanye Gold Limited v NUM obo Mjodi and Others (JR2017/14) [2018] ZALCJHB 313 (4 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case number: JR2017/14
In
the matter between:
SIBANYE
GOLD
LIMITED
Applicant
and
NUM
obo THEMBILE
MJODI
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second
Respondent
DESMOND
LYNCH
N.O.
Third
Respondent
Heard:
19 July 2018
Delivered:
04 October 2018
JUDGMENT
KIRSTEIN, AJ
Background facts
[1]
This
is an opposed review application in terms of section 145(1) of the
Labour Relations Act
[1]
(the
LRA). The applicant (Sibanye) seeks to review and set aside the
arbitration award dated 25 August 2014 issued by the third
respondent
(the commissioner) under the auspices of the second respondent, the
Commission for Conciliation, Mediation and Arbitration
(the CCMA)
under reference number GAJB12079-14.
[2]
Sibanye
dismissed the employee, Mr T Mjodi (Mjodi ) on 15 April 2014. The
chairperson of the disciplinary enquiry had found Mjodi
guilty of
contravening a workplace rule against bringing excessive food onto
premises and recommended a final written warning to
be issued to him.
However, Sibanye rejected this recommendation and dismissed Mjodi at
an appeal process that is disputed by Mjodi.
[3]
Mjodi
referred an unfair dismissal dispute to the CCMA. On 25 August 2014,
the commissioner’s award was issued, which read
as follows:
“
52. The
applicant’s dismissal was procedurally and substantively
unfair.
53. The respondent,
Sibanye Gold Ltd – Corporate Office, must retrospectively
reinstate Sibanye, Thembile Mjodi, in his previous
(or similar)
occupation with the same terms and conditions of employment he
enjoyed previously, by 15 September 2014. The Final
Warning he
received should stand.
54. The respondent
is also ordered to pay Sibanye R63 608.00 in full by 30 September
2014. This amount represents 8 retrospective
emoluments of his
monthly salary (8 x R7951.00 = R63 608.00).
55. I consider this
award to be just and equitable in terms of the Act, considering his
length of service, previously clear record,
unjust ratification of
the original sanction, and the scope of his responsibilities.”
[4]
Sibanye
delivered a review application on 25 September 2014, in which it
sought to have the commissioner’s award reviewed
and remitted
for a hearing
de
novo
,
alternatively to be determined by this Court in terms of section
145(4) of the LRA. Mjodi served his notice of intention to oppose
the
review application on 06 October 2014.
[5]
Sibanye
failed to comply with practice directives 11.2.2. and 11.2.7. of the
Practice Manual
[2]
,
which require that a record must be filed within 60 days of the date
upon which the applicant is advised that the record has been
dispatched to the Registrar; and that an applicant in a review
application is required to ensure that all necessary papers in the
review application are filed within 12 months of the date of the
launching of the review application.
[6]
On
01 June 2015, Mjodi delivered an application to dismiss Sibanye’s
review application on the basis that Sibanye had failed
to deliver
the record timeously. In response, Sibanye filed the incomplete
transcribed record on 04 June 2015, followed by a notice
of intention
to oppose the dismissal application. The reconstructed record was
filed on 26 October 2016. Then, on 27 January 2017,
Sibanye delivered
a condonation application seeking condonation for its late delivery
of the record and for the late prosecution
of the review application.
Condonation and
Dismissal Applications
[7]
Before
considering the substantive merits of the matter, I must have regard
to the dismissal application and the condonation application.
[8]
Practice
Directive 11.2.3 of the Practice Manual provides that:
‘
If the
applicant fails to file a record within the prescribed period, the
applicant will be deemed to have withdrawn the application,
unless
the applicant has during that period requested the respondent's
consent for an extension of time and consent has been given.
If
consent is refused, the applicant may, on notice of motion supported
by affidavit, apply to the Judge President in chambers
for an
extension of time. The application must be accompanied by proof of
service on all other parties, and answering and replying
affidavits
may be filed within the time limits prescribed by Rule 7. The Judge
President will then allocate the file to a judge
for a ruling, to be
made in chambers, on any extension of time that the respondent should
be afforded to file the record.
[9]
Practice
Directive 11.2.7 of the Practice Manual provides that:
‘
A review
application is by its nature an urgent application. An applicant in a
review application is therefore required to ensure
that all the
necessary papers in the application are filed within twelve (12)
months of the date of the launch of the application
(excluding heads
of argument) and the registrar is informed in writing that the
application is ready for allocation for hearing.
Where this time
limit is not complied with, the application will be archived and be
regarded as lapsed unless good cause is shown
why the application
should not to be archived or be removed from the archive.’
[10]
As
Tlhotlhalemaje J held in
MJRM
Transport Services CC v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
,
with reference to the judgment of Van Niekerk J in
Ralo
v Transnet Port Terminals and Others
[4]
and
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
[5]
:
‘
to the extent that the manual
requires the applicant to apply to the Judge President for extension
by way of notice of motion supported
by an affidavit, and to serve
such an application, and further to the extent that answering and
replying affidavits may be filed
within the time-limits prescribed by
rule 7, it can only be inferred that the extension sought can only be
akin to an ordinary
application for condonation as Van Niekerk J
correctly pointed out in Ralo’.
[11]
In
Ralo
Van Niekerk J held that,
‘
The Practice
Manual contains a series of directives, which the Judge President is
entitled to issue. In essence, the manual
sets out what is
expected of practitioners so as to meet the imperatives of respect
for the court as an institution, and the expeditious
resolution of
labour disputes (see clause 1.3). While the manual acknowledges the
need for flexibility in its application (see
clause 1.2) its
provisions are not cast in the form of a guideline, to be adhered to
or ignored by parties at their convenience.’
[12]
Tlhotlhalemaje
J then continued thus:
‘
in
considering whether to grant an extension, the court would still be
obliged to take account of the ordinary principles related
to
applications for condonation as set out in
Melane
v Santam Insurance Co Ltd
and other authorities. Thus a judge determining whether an extension
ought to be granted should in exercising his or her discretion,
take
into account the degree of lateness in failing to comply with the
60-day period, the explanation in that regard, the prospects
of
success and the importance of the case. We are reminded that these
factors are interrelated and should be considered as such.
A further
consideration is that of the interests of justice.’ (Footnotes
omitted)
[12] The following
timeline appears from the various affidavits filed by Sibanye and
Mjodi in the dismissal and condonation applications:
12.1
On
23 September 2014 Sibanye initiated the review application.
Mjodi’s notice of intention to oppose was served on 06
October
2014.
12.2
More
than two months later, on 04 December 2014, Sibanye allegedly
addressed a letter to the CCMA requesting compliance with Rule
7A(3).
This letter was allegedly sent via e-mail and fax, but Van Ryneveld
who was a director of Sibanye’s then attorneys
of record,
Geldenhuys Van Ryneveld Incorporated did not attach proof of
transmission to her affidavit.
12.3
Six
weeks later, on 14 January 2015, Sibanye allegedly addressed a letter
to ES Makinta Attorneys via e-mail, again without proof
of
transmission, stating that the CCMA had not complied with Rule
7A(3).
12.4
On
19 January 2015, Sibanye received the CCMA’s Rule 7A(3) notice,
dated 26 September 2014, and the Registrar’s letter,
similarly
dated 26 September 2014, informing it that the record is available.
12.5
On
19 January 2015, Sibanye sent an e-mail to ES Makinta Attorneys
acknowledging receipt of the Rule 7A(3) notice. Proof of
transmission of this e-mail was provided.
12.6
On
04 February 2015 the transcription of the records were completed by
iAfrica Transcriptions, as reflected in the certificate of
veracity.
[6]
12.7
On
28 May 2015, Van Ryneveld received Sibanye’s file from
Geldenhuys Van Ryneveld Attorneys.
12.8
On
01 June 2015, Mjodi delivered his application to dismiss Sibanye’s
review application on the basis that Sibanye had failed
to deliver
the record timeously.
12.9
On
04 June 2015, without having followed the procedure prescribed in
clause 11.2.3 of the Practice Manual, Sibanye served the incomplete
record on the first respondent. This was exactly four months
after the transcription was completed.
12.10
Also
on 04 June 2015, Sibanye served a notice of substitution of
representative of Sibanye, appointing Van Ryneveld at Sibanye’s
own address as representative for the applicant.
12.11
On
the same day Sibanye sent an e-mail to ES Makinta Attorneys informing
them that Van Ryneveld had joined Sibanye as an employee
and alleging
that, as a result of this, there had been a “transition period
in May 2015”. In the same letter,
Van Ryneveld mentioned
for the first time that, “the record appears to be
incomplete”.
12.12
The
applicant applied to the CCMA for the reconstruction of the record on
17 June 2015 and simultaneously gave notice of its intention
to
oppose the dismissal application.
12.13
A
month later, on 16 July 2015, Sibanye addressed a letter to the CCMA
requesting a date for the reconstruction meeting.
12.14
On
08 October 2015, almost three months later, Van Ryneveld sent an
e-mail to the CCMA threatening it with an application to compel
if
the reconstruction meeting is not scheduled without delay.
12.15
On
8 February 2016, despite this threat, Sibanye only addressed its new
correspondence four months later when Solomon Holmes Attorneys
sent
an e-mail to the CCMA again requesting a reconstruction meeting.
In this e-mail Sibanye’s attorneys alleged that
Mjodi’s
dismissal application was delivered as a consequence of the CCMA’s
failure to set the matter down for reconstruction
after Sibanye’s
numerous applications for it to do so. This allegation was
incorrect in two respects; firstly Mjodi’s
dismissal
application was delivered on 01 June 2015, two days before Sibanye’s
reconstruction application was delivered.
Secondly, Sibanye, on
its own version, addressed only three letters over a period of eight
months to the CCMA to follow up on its
reconstruction application.
12.16
On
22 February 2016, the CCMA addressed a letter to Van Ryneveld and to
ES Makinta Attorneys, informing the parties that the arbitrator
would
be available for the reconstruction meeting on 23 March 2016.
12.17
On
29 April 2016, Solomon Holmes Attorneys addressed a letter to the
CCMA and to Makinta Attorneys in which they referred to the
reconstruction meeting having taken place on 23 March 2016 and
requesting the third respondent’s handwritten notes.
12.18
On
20 July 2016 the CCMA filed its notice of further compliance in terms
of Rule 7A(3) in respect of the third respondent’s
hand written
notes.
12.19
On
26 October 2016 Sibanye finally files the reconstructed record, 38
days late.
12.20
On
08 November 2016, some three-and-a-half months later, Sibanye’s
Thomas Molamu deposed to Sibanye’s supplementary
affidavit
under Rule 7A(8). This was 26 months after the review application was
launched.
12.21
On
27 January 2017, Sibanye delivered a condonation application seeking
condonation for its late delivery of the record and for
the
late
prosecution of the review application.
12.22
It
must be noted that the condonation application delivered by Sibanye
is not an application in terms of practice directive 16.2
for the
de-archiving of the review application.
[13] As to the
explanation for the late filing of the record, Sibanye relies on
three main reasons:
13.1
Administrative
difficulties in providing proof of payment to iAfrica Transcription
Services
[7]
.
13.2
The
failure by the CCMA to file the complete record;
13.3
Van
Ryneveld’s career transition from being Sibanye’s
attorney to being its employee
[8]
.
[14] Van Ryneveld, in her
opposing affidavit to the dismissal application, admits that iAfrica
completed the transcription on 04
February 2015, but she avers that
certain “Klaas” and “Lerato” refused to
release the transcription without
proof of payment. “Administrative
difficulties” then delayed the proof of payment until the end
of April 2015, i.e.
for almost three months. Mjodi pointed out in his
replying affidavit that Van Ryneveld failed to ‘explain what
she called
“administrative difficulties”, and how these
delayed submission of proof of payment of the transcribers. Van
Ryneveld
failed to attach confirmatory affidavits by Klaas and Lerato
to corroborate this version. It seems improbable that any
administrative
difficulty could take three months to resolve,
particularly the simple matter of providing proof of payment already
made - if indeed
payment had been made. Whatever the facts may be,
Van Ryneveld does not take the Court into her confidence by setting
out the full
facts and circumstances that caused these alleged
administrative difficulties.
[15] On Sibanye’s
own version Van Ryneveld realized at the end of April 2015 that the
transcription was incomplete. She offers
explanation for her delay
until 16 July 2015 to apply for the reconstruction of the record but
the explanation is mainly limited
to the transition of her career.
She must have been aware that her client’s review application
was already deemed to have
been withdrawn in terms of the Practice
Manual. It would have been a simple matter of addressing a letter to
Mjodi’s attorneys
of record, explaining the anticipated
transition period in transferring the file to Van Ryneveld as an
employee of Sibanye and
asking their indulgence until this was
achieved. However, this simple precautionary step was not taken.
Mjodi was left in the dark.
Sibanye acted as if it was not bound by
the Rules and Practice directives of this Court.
[16] In view of the
patent urgency of the matter, it should also have been a priority for
Van Ryneveld as an employee of Sibanye
to expedite payment to
Geldenhuys Van Ryneveld incorporated in respect of Sibanye’s
file in order that she may pursue the
reconstruction of the record in
all haste. Van Ryneveld simply tells the Court that “this was
unfortunately an administrative
process as payments are only made to
attorney service providers once a month”. This does not reflect
any sense of urgency.
It only confirms that neither Van Ryneveld, nor
Sibanye had any sense of the dire urgency of the matter.
[17]
In a situation so patently urgent, it is inconceivable that Sibanye
could take three months to address any administrative difficulty.
Sibanye’s vague explanation for the three-month delay amounts
to no explanation at all. In view of the inordinately long
delay in
filing the record and the failure to explain the majority of this
delay, the dismissal application should succeed on that
ground alone
and the condonation application should fail for the same reasons.
However, I am obliged to consider the interrelated
factors set out in
Melane
v Santam Insurance Co Ltd
[9]
as a whole and not in isolation.
[18]
As Nkabinde J said in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[10]
,
“
Any
delay in the resolution of labour disputes undermines the primary
object of the LRA. It is detrimental not only to the workers
who may
be without a source of income pending the resolution of the dispute
but, ultimately, also to an employer who may have to
reinstate
workers after many years.”
The
facts in
Toyota
resemble those in this matter. In
Toyota,
the Constitutional Court was scathing of Toyota’s
lacklustre
manner
of pursuing the matter:
‘
From the
sequence of steps set out above, it is plain that in 22 months Toyota
did very little to prosecute the review. The delay
is wholly
excessive. There is no explanation for the delays between 30 November
2011 and 24 January 2012, and 19 March and 23 August
2012. The
approach to procuring a full record of the hearing was not diligent,
the prosecution of the review was not expeditiously
pursued and the
explanation for the delays is not reasonable.
Toyota ought to
have initiated steps to reconstruct the record as early as 2 February
2012, when it received an incomplete record
from its correspondent
attorneys. It did not. Instead, it sat back until March 2012 when it
delivered the incomplete record. The
respondents had requested that
the outstanding transcribed record be delivered. Toyota replied to
the respondent alleging incompleteness
of recorded proceedings and
informed the union that it was 'being proactive in having the
handwritten notes transcribed'. Unacceptably,
without any sense of
the need to act expeditiously, Toyota only followed up with its
transcribers thereafter twice in a period
of five months as to what
progress was being made in the transcription.
[11]
Evaluation
[19] Applying the
dictum
above from
Toyota
to this matter, the quoted words of Nkabinde
J above can be almost directly transposed to this matter, thus:
19.1
From
the sequence of steps set out above, it is plain that in 26 months
Sibanye did very little to prosecute the review.
19.2
The
delay is wholly excessive.
19.3
There
is no acceptable explanation for the delays between 06 October 2014
and 04 December 2014, between 04 December 2014 and 14
January 2014,
between 04 February 2015 and 04 June 2015, between 04 June 2015 and
16 July 2015, and between 20 July 2016 and 26
October 2016.
19.4
The
approach to procuring a full record of the hearing was not diligent,
the prosecution of the review was not expeditiously pursued
and the
explanation for the delays is not reasonable.
19.5
Sibanye
ought to have initiated steps to reconstruct the record as early as
April 2015, when it received an incomplete record from
the
transcribers.
19.6
Sibanye
sat back until 04 June 2015 when it delivered the incomplete record.
19.7
Mjodi
had requested that the outstanding transcribed record be delivered.
19.8
Sibanye
replied to Mjodi alleging incompleteness of recorded proceedings and
informed Mjodi’s attorneys that it was 'being
proactive in
having the handwritten notes transcribed'.
19.9
Unacceptably,
without any sense of the need to act expeditiously, Sibanye only
followed up with the CCMA three times in a period
of four months and
it then only paid its transcribers three months after it was informed
that the transcription was ready.
[20] Although the CCMA is
not blameless as to some of the delay, Sibanye cannot claim that it
acted in all reasonable haste in pursuing
its review application. The
applicant failed to approach the Judge President for a directive on
how to reconstruct the record as
it should have done, it failed to
apply for the reinstatement of the review application, and it filed a
condonation application
some two years after it filed its review
application. Sibanye wholly failed to explain some of the delays.
[21] Having regard to
Sibanye’s prospects of success on the merits, I am not
convinced that these favour Sibanye. The applicant’s
case is
that it was entitled to dismiss Mjodi for breaching the rule against
bringing excessive food into the workplace. It appears
to me that
this rule is
prima facie
arbitrary. There is no objective
measure of how much is too much. What is excessive could vary from
day to day and from person
to person. It is therefore inconceivable
that Sibanye’s rule could withstand scrutiny against the
requirements of the Code
of Good Practice: Dismissal and section 188
of the LRA. In any event, Mjodi denied knowledge of the rule, and it
is common cause
that the rule had been implemented only shortly
before the date of the incident and had never previously led to the
dismissal of
an employee.
[22] All of this becomes
academic if one has regard to the real reason for Sibanye’s
decision to dismiss Mjodi. The applicant
claims that the third
respondent was dismissed for being in possession of excessive food,
which is in itself an arbitrary rule
subject to an immeasurable
standard. But the real reason for the dismissal is recorded in the
outcome of the appeal hearing, the
very occurrence of which Mjodi
still denies. The chairperson of the appeal hearing, Andre du
Plessis, whose designation is recorded
on page 113 of the record
bundle as “Mining Manager”, recorded the reasons for his
unilateral decision to dismiss Mjodi
on page 126 of the record bundle
as
follows:
‘
Seriousness
of the offence justify a dismissal as we know that our own employees
are assisting illegal miners with food underground
and
Morvite/instant porridge being one of the preferred food types.’
[23] From this it is
clear that the real reason for Mjodi’s dismissal was his
possession of Morvite instant porridge (Morvite),
not an excessive
amount thereof. There was nothing before the disciplinary hearing or
before the Commissioner to indicate that
there was a rule against
possessing Morvite, or that Mjodi was about to share his meal with
illegal miners, or that illegal miners
preferred Morvite. All of that
was pure assumption based on pre-conceived mindset. But what is
really astonishing is the fact that
Mjodi was dismissed at the
disputed appeal hearing simply because Sibanye’s Mining Manager
held the belief that illegal miners
preferred Morvite, and Mjodi
brought Morvite to work.
[24] There was in any
event no admissible evidence before the Commissioner of how much any
person, or Mjodi specifically could eat
in a day. Mjodi’s own
uncontested evidence was that he would eat half a bottle at a time –
one at the start of a shift
and the rest later. There is no objective
basis upon which Mjodi’s version should be rejected as
improbable. I am of the
view that the rule that led to the
disciplinary findings against Mjodi is inherently incapable of
objective application and that
it is arbitrary.
[25] It is important to
note that the notice of 03 July 2013, on which Sibanye relies for the
requirement of publication of the
rule, stated that being in
possession of excessive food
could
lead to dismissal. This
implies that a level of discretion is still to be applied to the
facts of the matter. If the sanction is
wholly disproportionate to
the offence, it cannot pass the requirements of fairness embodied in
the Code of Good Practice: Dismissal
for Misconduct, which in any
event provides for progressive discipline. Mjodi declared that he
would never again bring Morvite
to work when he learned about the
rule against excessive food. There seems to have been no compelling
reason to dismiss Mjodi other
than the assertion that Morvite was a
preferred food for illegal miners.
Conclusion
[26] For the reasons set
out above, I conclude that the review application is deemed to have
been withdrawn in terms of clause 11.2.3
and archived in terms of
clause 11.2.7 of the Practice Manual. The applicant should therefore
have filed an application to the
Judge President for an extension of
time, as well as an application for reinstating the review
application. The review application
cannot be revived in the absence
of those applications. However, having regard to the manner in which
Sibanye pursued the review
application, the inordinate length of
delay in filing the incomplete record and later the reconstructed
record, the failure to
explain the delays in a satisfactory manner,
and the lack of merit in Sibanye’s case, I am of the view that
it is not in
the interest of justice to condone the late filing of
the record, or to reinstate the review application. For the same
reasons,
Mjodi’s application to dismiss the review application
must succeed.
[27] Nothing was
advanced, and there is nothing in law or in equity to persuade me to
deviate from the established principles relating
to cost orders in
the Labour Court.
[28] In the result, the
following order is made:
Order
1.
The
applicant’s application for condonation of the late filing of
the record and for the late prosecution of the review application
is
dismissed;
2.
The
first respondent’s application to dismiss the review
application is granted;
3.
There
is no order as to costs.
_____________________________________
P.H.
Kirstein
Acting
Judge of The Labour Court of South Africa
Appearances:
For
the Applicant: Advocate. T Moretiwe
Instructed
by: Solomon Holmes Attorneys
For
the Respondent: Mr. MES Makinta of Makinta Attorneys
[1]
Act
66
of 1995 as amended.
[2]
Practice Manual
of
the Labour Court of South Africa April 2013.
[3]
(2017) 38 ILJ 414 (LC)
at 17.
[4]
(2015)
36 ILJ 2653 (LC)
.
[5]
(2014)
35 ILJ 1672 (LC)
.
[6]
Condonation
bundle, page 159.
[7]
Condonation
bundle, page 39 at para 5.3.5.
[8]
Condonation
bundle, page 39 at para 5.3.6. m
[9]
1962
(4) SA 531
(A) at 531 A.
[10]
(2016) 37 ILJ 313
(CC) at para 1.
[11]
At paras 36-37.