About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 140
|
|
Mulibana and Another v SEA World (Pty) Ltd and Others (JR2501/09) [2019] ZALCJHB 140 (31 January 2019)
the
labour court of South Africa, johannesburg
judgment
Not
reportable
CASE
NO: JR2501/09
In the matter between:
SOLOMON
MULIBANA
First
Applicant
OWEN
MPHALA
Second
Applicant
and
SEA
WORLD (PTY) LTD
First
Respondent
COMMISSIONER,
THULANI AKIM Second
Respondent
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third
Respondent
Heard: 30 January 2019
Judgment
delivered: 31 January 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the
second respondent (the arbitrator) on 20 August 2009.
[2]
This matter has a sorry history. The first and second applicants were
dismissed in
2009. The arbitration hearing that forms the subject of
these proceedings were conducted in 2009, and the award under review
issued
on 20 August 2009. The record was made available to the
applicant in October 2009. Since then, the matter has been litigated
at
leisure with the only delay capable of clear explanation that
occasioned by the rescission of a prior order of this court in which
the review was dismissed. It is simply unacceptable that this
court be asked to review and set aside awards that have their
roots
in events that occurred almost a decade ago and that the prejudice to
parties occasioned by the delay be regarded as of little
or no
account.
[3]
At some unfathomable point along the way, the union (and the second
applicant) appear
to have abandoned these proceedings. They were not
present when the matter was called, and the court was advised that
they no longer
pursued the review application. The first applicant
persists with the application.
[4]
The factual background is not disputed. The applicants were employed
by the respondent
as a driver’s assistant and driver
respectively. The respondent employs a security protocol in relation
to the delivery of
its products. Delivery vehicles are loaded the
night before delivery, and both padlocked and sealed. The driver and
assistant verify
that the locks and seals are in place, and
thereafter assume responsibility of the load. On 4 June 2009, the
applicants were scheduled
to make a delivery that included two bags
of chicken. A security guard who had been on duty at the respondent’s
premises
the previous night was found in possession of two bags of
chicken, which he said when he was arrested that he had obtained from
the driver of truck number 5.
[5]
At the arbitration hearing, the applicants presented a joint defence
to the effect
that an unidentified third party had gained
unauthorised access to the loaded truck and stolen the chicken. The
first applicant
testified that on the morning in question, he was
delayed on account of his not having the key to his locker, which
contained his
uniform. When he arrived at the vehicle, the second
applicant had already checked the seal numbers and route sheet and
that he
only checked whether the vehicle was in good condition. In
particular, under cross-examination, the first applicant conceded
that
the missing stock had been loaded onto his truck and that the
stock that he was responsible for delivering had disappeared. At no
stage did the first applicant contend that the second applicant was
the guilty party.
[6]
In her award, the arbitrator noted that it was common cause that the
two bags of chicken
were part of the stock loaded onto truck number 5
on the night of 3 June 2009. It was also common cause that the bags
of chicken
were found in possession of a security guard who had been
on duty at the respondent’s premises on the night of 3-4 June.
The system of checking seals numbers and their verification was also
not disputed, nor was the fact that the driver and van assistant
assumed responsibility for the stock once the route sheet had been
signed. The arbitrator came to the conclusion that ‘
both
of the Applicants took the responsibility of the stock and no report
was made in relation to the seal it is probable that the
two bags of
chicken was inside the truck when they took the truck
.’ The
arbitrator held that on a balance of probabilities, the applicants
had been fairly dismissed.
[7]
The first applicant persists with the review application. He does not
rely on the
grounds for review recorded in the founding affidavit.
The application was argued on the basis of the grounds set out in a
supplementary
affidavit filed on 27 July 2017. That Rule 7A (8)
permits the filing of a supplementary affidavit within 10 days of the
date on
which the registrar makes the record available. The affidavit
was filed some six years late, with no application for condonation,
and in the face of an objection by the respondent. In these
circumstances, the affidavit is not admissible and the court is not
empowered to have regard to any of the grounds for review that have
been asserted in it. The application for review stands to be
dismissed on this basis.
[8]
Even if I were to have regard to the supplementary affidavit, there
is no merit in
the application. In essence, the first applicant
contends that the arbitrator committed a reviewable irregularity by
concluding
that the first applicant had committed the misconduct with
which he was charged without there being any evidence on which to
draw
that conclusion. Specifically, the applicant contends that while
there was evidence to sustain the finding that the second applicant
had misappropriated the two bags of chicken, there was no evidence to
implicate the first applicant in the same misconduct. Further,
and to
the extent that the arbitrator accepted that the evidence of the
security guard was hearsay, it was not, at least to the
extent that
he testified as to how and where he received the bags of chicken.
[9]
The threshold for review is fairly well-established. Section 145
permits the review
of an arbitration award, amongst other grounds,
where the arbitrator commits a gross irregularity. This extends to
latent gross
irregularities or, put another way, instances where an
arbitrator fails to apply him or herself to the available evidence,
makes
defect of factual findings and the like. In these instances, a
party seeking to set aside an award or ruling must establish both
the
irregularity or defect relied on and that the threshold
established by
Sidumo & another v Rustenburg Platinum mines
Ltd & others
[2007] 12 BLLR 1097 (CC) has been met.
In
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), the Labour Appeal Court noted that it is
not sufficient for an award to be set aside simply to establish a
gross irregularity
in the conduct of the arbitration proceedings; it
is incumbent on an applicant to establish that the result was
unreasonable or
‘
put another way, whether the decision
that the arbitrator arrived at is one that falls outside the band of
decisions to which a
reasonable decision-maker could come on the
available material
’. In other words, the review court must
consider whether despite the arbitrator’s reasoning, the result
is nevertheless
capable of justification on the available material.
Thus, material errors of fact on the part of the arbitrator, as well
as the
weight and relevance to be attached to particular facts or a
failure to have regard to particular facts are not in themselves
sufficient
grounds for review; their effect must be to render the
outcome unreasonable.
[10]
What this analysis requires is that the review court determine first
whether the arbitrator perpetrated
any ‘defect’ or
irregularity contemplated by s 145 (2). Secondly, the court must have
regard to the distorting effect
that the error may have had on the
outcome of the arbitrator’s award. Thirdly, if it is reasonably
clear that but for the
identified error relied upon the award would
have been different or cannot stand on its own reasoning, then the
award is
prima facie
an unreasonable award. Finally, the court must have regard to the
issues and the evidence as a whole to determine whether or not
the
outcome is nevertheless capable of being sustained on the
Sidumo
test. Put more plainly, the review court must ask whether but for the
defect, a reasonable decision-maker could have come to the
conclusion
reached in the award on the same material.
[11]
When conducting this analysis, the review court must avoid falling
into the trap of what the Labour
Appeal Court in
Gold Fields
referred to as a ‘piecemeal analysis’ of each of the
arbitrator’s findings. The question to be answered ultimately
is whether on the totality of the evidence, a relationship of
reasonableness exists between that evidence and the result reached
by
the arbitrator have committed.
[12]
I am unable to find that the arbitrator committed any reviewable
irregularity. The arbitrator assessed
the evidence, and came to a
conclusion based on what she considered the more probable version of
events. The evidence before her
disclosed that the applicants were
jointly responsible for the products loaded for delivery. It is not
sufficient to say, as the
first applicant does, that the applicants
were charged with misappropriation of the bags of chicken and not a
breach of the loading
procedures. The undisputed facts that the first
applicant was responsible for the stock loaded in the delivery
vehicle and that
the two bags of chicken were found in possession of
the security guard in circumstances where both applicants were in the
vehicle
when the stock went missing is sufficient, in my view, for
the arbitrator reasonably to have concluded that that the chicken had
been misappropriated by the first and second applicants. Of some
significance here is the fact that the first applicant, until
the day
on which argument was presented in this court, had never sought to
suggest that it was the second applicant who had misappropriated
the
chicken and that he was unaware or ignorant of that fact. The case
made in argument is not one that finds reflection in the
papers and
smacks of opportunism. It is also incorrect to suggest, as the first
applicant does, that it was common cause that the
chicken had been
stolen on the night of 3 June. That is not what is reflected in the
record. On the contrary, it was common cause
that the chicken had
been loaded on the 3
rd
; the respondent’s version
(which was accepted by the arbitrator) was that the chicken had been
removed after the applicants
had signed the route sheet and accepted
responsibility for the load. As I have indicated, I am unable to find
that the arbitrator
committed any reviewable irregularity in coming
to this conclusion.
[13]
Finally, and in terms of the broad discretion conferred on the court
by s 162 of the LRA, there
is no reason why the interests of the law
and fairness should deprive the respondent of the costs of opposing
these proceedings.
At every level, the application has been dealt
with other than in accordance with the statutory imperatives of
efficient and expeditious
dispute resolution. It is simply
unconscionable, given the many warnings issued by this court on the
tardy prosecution of review
application, to present an application
some ten years after the events giving rise to it. The practice
manual specifically records
that a review application must be treated
with the same degree of urgency and diligence as an urgent
application. The applicants’
conduct warrants sanction. The
union and the second applicant have not formally withdrawn from these
proceedings. In these circumstances,
an order for costs against all
of the applicants, jointly and severally, is appropriate.
I make the following order:
1.
The application is dismissed.
2.
The Food and Allied Workers Union, and the
first and second applicants are to pay the costs of the application,
jointly and severally,
the one paying the other to be absolved.
André van Niekerk
Judge
REPRESENTATION
For
the first applicant: Adv. Rali, instructed by Kwala Attorneys
For the respondent: Adv. AL Cook,
instructed by Kevin Allardyce Attorneys