About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2019
>>
[2019] ZALCCT 27
|
|
Minister of Justice and Correctional Services and Others v Sibika and Others (C214/17) [2019] ZALCCT 27 (11 October 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case no: C214/17
In the matter between:
MINISTER OF JUSTICE
AND CORRECTIONAL SERVICES Applicant
and
THEMBINKOSI
SIBIKA First
Respondent
JACQUES BUITENDAG
N.O.
Second Respondent
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL Third
Respondent
Date
heard: August 1 2019
Delivered:
October 11 2019
JUDGMENT
RABKIN-NAICKER, J
[1]
This is an opposed application to review a default arbitration award
under case number GPBC1198/16.
The applicant submits that the second
respondent should have postponed the arbitration proceedings and
seeks to review the award
principally on this basis. It also applies
for condonation for the late filing of the application. The
condonation application
was not opposed and I grant condonation and
deal with the review on its merits.
[2]
The Arbitrator deals with the history of the processes before the
bargaining council in
the default award. These paragraphs read as
follows:
“
3.
Section 138 (5)(B) of the Labour Relations Act 66 of 1995 (LRA)
provides arbitrators discretion when, a party who did not refer
the
matter, does not attend the scheduled hearing or is not represented.
The arbitrator may proceed in the absence of that party
and hear the
matter on the Applicant’s version, which will result in a
default award, or adjourn the proceedings to a later
date.
4. At
the commencement of the arbitration held on 28 September 2016 Mr.
Luphondo represented the Respondent. Mr. Luphundo [sic]
applied for a
postponement. Mr. Luphondo submitted that the investigation and
disciplinary hearing was dealt with by the Respondent’s
Departmental Investigation Unit (DIU) in Pretoria. The Applicant was
dismissed for alleged corruption. He did not receive the notice
of
set down and knows nothing about the case. Mr. Luphondo further
submitted that he contacted the National Dispute Resolution
Coordinator, Ms. Seshoba, and that she is also unaware of the case.
Mr. Luphondo said that the DIU investigator is not at work
and he
does not answer his phone. In the circumstances he is requesting a
postponement on behalf of the Respondent. Mr. Bester
replied that the
Applicant has no income to support his family and he requested for
the arbitration to proceed.
5. I
contacted the GPSSBC Dispute Resolution Unit and it was confirmed
that the set down notice was faxed to the Regional Office
in Pretoria
(086 534 6847) as well as to the Respondent’s Head Office
in Pretoria (021 323 3476). The Respondent
thus received proper
notice of this arbitration. I have considered the personal
circumstances of the Applicant but decided because
a dismissal for
corruption in the Public Sector is a serious matter that the
Respondent must be given an opportunity to defend
its decision and
that Mr. Luphondo is clearly not in a position to represent the
Respondent. I postponed the arbitration. I issued
a written ruling in
this regard on 28 September 2016.
6. The
matter was then set down for 11 November 2016. I was unfortunately
ill and could not arbitrate the matter. I informed the
Bargaining
Council. The matter was then set down for 20 January 2017 at 09h00.
7. At
the commencement of the proceedings on 20 January 2017 Mr. Mooi
represented the Respondent. He informed me that he has contacted
the
Respondent’s representative, Mr. Ramotsa. Mr. Ramotsa informed
him that he has not received the set down notice and that
he is busy
with another arbitration.
8. I
contacted the GPSSBC Dispute Resolution Unit and spoke to Ms. Kekana.
She informed me that the set down notice was faxed on
17 November
2016 to the Respondent’s Provincial Offices on fax number
021 558 7350 and 086 533 7197. The set down
notice was also
faxed to the Respondent’s Head Office on 012 323 3476 and
086 5344524. The set down notice was also
emailed on 17 November 2016
to Mr. Luphondo and Mr. Mooi (Cape Town) as well as to L Siykoza, S
Kgoahla, T Silwane and T Khatswayo
(Gauteng). The Respondent was thus
properly notified of this arbitration. Mr Mooi said that he cannot
dispute this.
9. Mr.
Bester submitted that the matter was postponed on 28 September 2016
because the Respondent’s representative was not
present. When
the matter was postponed on 11 November 2016 because of the
commissioner being ill, the Respondent’s representative
was
also not present. Mr. Bester submitted that the Applicant was
dismissed in April 2016, has no income and will be prejudiced
by any
further postponements.
10.
Mr. Mooi requested an adjournment at this stage. When he returned he
handed me his cell phone and asked me to speak to Mr. Ramotse.
Mr.
Ramotse informed me that he was not aware of the set down date and is
busy with another arbitration in Pietermaritzburg. When
I asked him
where he was on 11 November 2016, Mr Ramotse informed me that he was
in Cape Town during that period.
11.
Mr. Mooi argued that the Applicant was dismissed for serious
misconduct and that he does not have the Applicant’s file
and
is unable to represent the Respondent. Mr. Mooi then called Ms.
Strydom, the Regional Head HR, to address me. She basically
repeated
what Mr. Mooi has already presented to me.
12. In
Northern Province
Development Corporation v CCMA and
Others
(2001) 22ILJ 2697 it was held
that the LRA requires labour disputes to be resolved expeditiously
and thus arbitrators have a wide
discretion in granting to refusing
to grant a postponement. In
Voster v
CCMA and Others
(2002) 23ILJ 1899, the
Court held that postponement in arbitration proceedings should not
easily be granted. In
Coin Security
Group (Pty) Ltd vs Mshengu and Others
2001
(22) ILJ 910 (LC) it was held that a party applying for postponement
should not assume that the postponement will be granted
and should
always be prepared in case it is refused.
13. I
have already indulged the Respondent when I granted a postponement on
28 September 2016. On that occasion the Respondent’s
representative was also not present, even though the Respondent
received proper notice.
14.
Mr. Ramotse telephonically informed me that he did not receive the
set down notice for 20 January 2017. It is not for the GPSSBC
to
decide who should represent the Respondent. The fact that the set
down notice was faxed to several fax numbers and emailed to
several
officials, including Mr. Mooi and Mr. Luphondo, shows that the GPSSBC
has gone beyond what was necessary to inform the
Respondent that this
arbitration has been set down for 20 January 2017. If Mr. Ramotse was
double booked, then the Respondent could
have appointed someone else
as representative or the Respondent could have sought an adjournment
in terms of the Rules for Conduct
of Proceedings before the GPSSPC
(Resolution 4 of 2004). The Respondent did not do so. In any event,
according to Mr. Ramotse,
he was not aware of the matter. The
argument that he is double booked is thus without substance. The fact
that officials within
the Department have apparently not informed Mr.
Ramotse cannot be placed at the door of GPSSBC.
15. Both employees and
employers are entitled to finality in unfair dismissal disputes. The
CCMA and Bargaining Council has been
established to deal with matters
under its auspices quickly and fairly. This includes avoiding
unnecessary delays in the administration
of justice. The Applicant
has been dismissed in April 2016 and further delays with prejudice
the Applicant.
16. I ruled that the
matter proceed. Mr. Mooi remained for the duration of the arbitration
as an observer.”
[3]
The applicant brought a rescission application in terms of
section
144
of the
Labour Relations Act to
set aside the Default Award. In a
Ruling dated 6 October 2017, the Arbitrator dismissed the rescission
application. That Ruling
is not addressed in the Applicant’s
Notice of Motion in this review. Its content is not discussed in the
pleadings. The only
document which references the rescission
application to set aside the Award is a copy of the applicant’s
affidavit seeking
the rescission which is attached to the founding
affidavit.
[4]
In
Qibe
v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration
& others
[1]
, the LAC considered the
legal status of a default Award (albeit in the context of a
consideration of
section 142(2)
and (3) of the LRA) and stated the
following:
“
Firstly,
a default arbitration award made by an arbitrator in the absence of
one of the parties is not final in effect, as it may
be rescinded or
revisited by the arbitrator who made the award. Therefore, although a
default arbitration award will have full
effect until set aside, it
is not final for purposes of a review, as contemplated in the LRA,
because the proceedings are not complete
and the award may be
revisited or rescinded by the arbitrator who made the default award.
It follows that only the decision of
the arbitrator dismissing the
rescission application may be reviewed — and not the default
arbitration award itself —
as it is not a final decision.”
[5]
In
Bloem
Water Board v Nthako NO & others
[2]
the LAC qualified the reach of the dictum above as follows:
“…
..There
are obvious disadvantages in attempting to review a default award
where the one party’s version has not been adduced
as outlined
in Magic Company v Commission for Conciliation, Mediation &
Arbitration & others. But insofar as the
Qibe judgment may
be taken to state that the Labour Court is not entitled to review an
award issued by the Commission for Conciliation,
Mediation &
Arbitration (CCMA) or the bargaining council that is made in the
absence of a party at all, I would respectfully
disagree. The
conventional approach of a court of review to decisions of a court or
administrative body, whether under the
Promotion of Administrative
Justice Act 3 of 2000
or otherwise, is that internal remedies should
be exhausted and piecemeal reviews are to be avoided. But a court may
intervene
in medias res where the interests of justice require it (ie
where injustices would otherwise occur), although it is to be used
sparingly and only in exceptional circumstances. In Wahlhaus &
others v Additional Magistrate, Johannesburg & another (Wahlhaus)
the court expressed the principle this way:
‘
While
a superior court having jurisdiction in review or appeal will be slow
to exercise any power, whether by mandamus or
otherwise upon
unterminated course of proceedings in a court below, it certainly has
the power to do so, and will do so in rare
cases where grave
injustice might otherwise result or where justice might not by other
means be attained. ... In general, however,
it will hesitate to
intervene, especially having regard to the effect of such procedure
upon the continuity of the proceedings
in the court below, and to the
fact that redress by means of review or appeal will ordinarily be
available.’”
[3]
[6]
The application to review the default award in this case has not been
made in
medias
res
before
the finalization of the rescission application. Rescission was
refused. The applicant has chosen an unusual path in this
matter: To
review what is now a final default award, and let the rescission
decision stand. This is not the norm. It is trite that
when a
rescission ruling is successfully reviewed and set aside, the setting
aside of the default award automatically follows and
parties return
to arbitration.
[4]
The reason
for not challenging the rescission ruling is not apparent from the
papers before me.
[7]
As the LAC stated in the
Bloem
Water
matter, there are obvious disadvantages in reviewing a default
arbitration award. In
Magic
Company v Commission for Conciliation, Mediation & Arbitration &
others
[5]
the Court per Murphy AJ as he then was, reflected this when it
stated: “The applicant legitimately maintained that the mere
fact that it was not present at the hearing did not justify a finding
of substantive unfairness. This may be so, but it is apparent
from
both the record and other paragraphs of the award that the
commissioner did consider and weigh the uncontested evidence of
the
third respondent.”
[8]
This is also the case in this matter. The Award reflects a careful
and lengthy weighing
up of the evidence presented at arbitration. The
arbitrator also took account of the onus in unfair dismissal
disputes, as well
as the serious nature of the offences. In these
circumstances I cannot find the Default Award reviewable on the
merits of the dismissal.
[9]
However, the Award in effect contains an
in limine
ruling
regarding postponement. The question for this Court then is whether
the decision to refuse to postpone the matter is reviewable.
The
applicant has submitted that the Arbitrator did not exercise his
discretion in line with judicial principles in making this
decision.
[10]
I return to the Award by the Arbitrator in which he states the
following:
“
I
contacted the GPSSBC Dispute Resolution Unit and spoke to Ms. Kekana.
She informed me that the set down notice was faxed on 17
November
2016 to the Respondent’s Provincial Offices on fax number
021 558 7350 and 086 533 7197. The set down
notice was also
faxed to the Respondent’s Head Office on 012 323 3476 and
086 5344524. The set down notice was also
emailed on 17 November 2016
to Mr. Luphondo and Mr. Mooi (Cape Town) as well as to L Siykoza, S
Kgoahla, T Silwane and T Khatswayo
(Gauteng). The Respondent was thus
properly notified of this arbitration. Mr Mooi said that he cannot
dispute this.”
[11]
It defies belief that the applicant can submit that in the
circumstances set out in paragraph
10 above, the Commissioner’s
decision to proceed with the arbitration is susceptible to review.
Issues of whether Mr Ramotse
was double booked, or had attended the
hearing on the 11 November which are canvassed in the papers, are
immaterial. The bargaining
council had literally gone beyond the call
of duty to inform the applicant of the set down of the arbitration,
including sending
the set down notice to applicant’s head
office where Ramotse was based. In addition to taking this into
account, the Arbitrator
considered the issue of prejudice to both
parties; he considered that he had already indulged the applicant by
granting a postponement
when Ramotse had not been available on the
first date of set down. He further applied the law, citing various
cases, in relation
to postponements at the CCMA.
[12]
The applicant has emphasized in its papers that the first respondent
was dismissed for serious
charges including having pecuniary
relations with an inmate. The charges were serious. This is why the
applicant should have dealt
with the dispute before the bargaining
council in the requisite manner. The applicant now has to live with
the result of its failure
to do so. In my view, the decision to
refuse to postpone the arbitration is not susceptible to review. Nor
can the Arbitrator’s
findings on the merits be disturbed given
the evidence before him.
[13]
In the result, the application stands to be dismissed. I make no
order as to costs given the
ongoing relationship between the parties
i.e. the Applicant and Popcru which represented the first respondent
in this review. I
order as follows;
Order
1.
The application is dismissed.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant: R. Nyman
instructed by the State Attorney
First
Respondent: Marais Muller Hendricks Inc
[1]
(2015)
36 ILJ 1283 (LAC)
[2]
(2017)
38 ILJ 2470 (LAC)
[3]
At
paragraph 12
[4]
See
for example SA Broadcasting Corporation v Commission for
Conciliation, Mediation & Arbitration & others (2019) 40
ILJ
603 (LC) at paragraph 21
[5]
(2005)
26 ILJ 271 (LC)