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[2020] ZALCJHB 241
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Minister of Justice and Correctional Services v Mkhize and Others (JR 1508/17) [2020] ZALCJHB 241 (21 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No: JR 1508/17
In
the matter between:
MINISTER OF JUSTICE
AND
CORRECTIONAL
SERVICES
Applicant
and
SITHEMBISO
SIPHELELE MKHIZE
First Respondent
M.M.
SAMBO
N.O.
Second Respondent
GENERAL PUBLIC
SERVICES SECTORAL
BARGAINING
COUNCIL
Third Respondent
Heard
: 5 August 2019
Delivered:
21 January 2020
Summary:
Application to Supreme Court of Appeal for leave to introduce new
evidence - Supreme Court of Appeal
Judgment ordering that the matter
be remitted to the GPSSBC to continue the arbitration before the same
commissioner – evidence
at resumed hearing limited to the new
evidence, and evidence emanating there from - GPSSBC and Third
Respondent exceeded their
powers by not acting in compliance with the
Supreme Court of Appeal Order – award reviewed and set aside.
JUDGMENT
HOLMES,
AJ
Introduction
[1]
This
is an application in terms of section 145 of the Labour Relations
Act
[1]
(LRA) for an order
reviewing and setting aside the arbitration award issued by the
second respondent (commissioner Sambo) on 22
June 2017.
[2]
The first respondent,
Sithembiso
Siphelele Mkhize (Mkhize)
raised a number
of
points in limine
in his answering papers. At the commencement of proceedings, the
parties advised me that an agreement had been reached that he
is not
pursuing these
points in limine
,
therefore, I will only deal with the merits of the review
application.
Background
and material facts
[3]
Mkhize was employed by the National
Department of Correctional Services as a correctional officer earning
an annual remuneration
of R82 223.00.
Mkhize
was dismissed on 19 May 2008 for: (i) being in possession of illegal,
unauthorised, habit forming and/or stupefying drug
on departmental
premises; and alternatively; (ii) for permitting an offender to take
alcohol or any prohibited drug or to have
these substances in his or
her possession.
[4]
Following his dismissal, Mkhize referred an
unfair dismissal dispute to the General Public Services Sectoral
Bargaining Council
(GPSSBC). The Council found that Mkhize’s
dismissal was both substantively and procedurally fair. Mkhize
launched a review
application in this Court, which was dismissed on
21 June 2012. Mkhize then petitioned the Labour Appeal Court for
leave to appeal,
which was dismissed on 28 February 2012.
[5]
Mkhize then approached the Supreme Court of
Appeal (SCA), for special leave to appeal against the decision of the
Labour Court and
Labour Appeal Court pertaining to his dismissal,
including that the commissioner had failed to consider various
procedural issues
and had erred on the evidence when holding Mkhize’s
dismissal substantively fair.
[6]
In addition, he sought leave to introduce
new evidence in the form of a sworn affidavit dated 1 October 2012 by
one Gilbert Sibiya
(Sibiya’s Affidavit), in which he confessed
to giving false evidence against Mkhize at both the disciplinary
hearing and
arbitration
[7]
In light of established jurisprudence, the
SCA found that neither the grounds of appeal pertaining to the
procedural issues or that
the commissioner had erred on the evidence,
warranted interference by the Supreme Court.
[8]
The SCA accordingly only dealt with the
admission of Sibiya’s evidence confessing to giving false
evidence against Mkhize.
In this regard, the SCA judgment notes that
“
accordingly, and counsel on his
behalf accepted this, the only questions for decision in this appeal
resolve around the attempt
to introduce the evidence of Mr Sibiya
”.
[9]
Based on a finding that Sibiya’s
evidence was material and indicated the possibility of there having
been a miscarriage of
justice, the SCA set aside,
inter
alia
, the order of the Labour Court
dismissing the review application and the decision of the arbitrator
and remitted the dispute concerning
Mr Mkhize’s dismissal to
the GPSSBC to continue the arbitration before the original
commissioner, Commissioner Silas Ramushowana,
or if he was unable to
continue the arbitration, another commissioner appointed by the
Council, on the sole question of whether
Mkhize’s dismissal was
substantively fair.
[10]
The SCA provided clear guidance to the
GPSSBC on the purpose for continuing with the arbitration and how the
arbitration should
be conducted, including that:
10.1.
Sibiya’s Affidavit should not be
accepted on face value;
10.2.
The content of Sibiya’s Affidavit
must be tested, if it is still feasible to do so. In this regard not
only will Mr Sibiya
need to give evidence and be cross-examined, but
witnesses who gave evidence before the commissioner might need to be
recalled
to give further evidence or to be cross-examined in light of
his evidence;
10.3.
In addition, the alleged perpetrator, the
prisoner called Zola, will need to be identified and will also give
evidence;
10.4.
The circumstance in which Mr Sibiya’s
affidavit was prepared and by whom, as well as the circumstances in
which it came to
the attention of Mkhize’s lawyers will also
have to be explored.
[11]
In this regard, the SCA ordered, inter
alia, that:
“
In
the resumed hearing, the evidence heard to date will remain as
evidence on the record and the arbitrator will hear the evidence
of
Mr G Sibiya, such further evidence as may be tendered by either party
in the light of that evidence and further evidence from
or, if
requested, cross-examination of, any witness who had already
testified at arbitration.”
[12]
Finally
the SCA held that the “
remittal
is limited to a
de
novo determination
of whether Mr Mkhize’s dismissal was substantively fair
.”
[2]
The matter was remitted back to the GPSSBC, and set down for the
hearing to continue before Commissioner Martin Sambo, the Second
Respondent, and not the original Commissioner, Silas Ramushowana as
ordered by the court.
[13]
At the commencement of the arbitration
proceedings before the second commissioner, the applicant raised a
preliminary point namely
that, as ordered by the SCA, the matter must
proceed before Commissioner Silas Ramushowana, the same commissioner
who considered
the original matter, unless he was unable to continue
the arbitration. Commissioner Sambo initially made an
ex
tempora
ruling, which he later
confirmed in his written award. In this regard he found that there
was no merit in the applicant’s
preliminary point, the SCA
judgment gave the GPSSBC the discretion to appoint another
commissioner if Commissioner Silas Ramushowana
was not available or
able to proceed, and that the GPSSBC
had exercised the discretion. No
indication was given, or investigation made, at the time Commissioner
Sambo made his
ex tempore ruling
as to why Silas Ramushowana was unavailable or unable to hear the
matter.
[14]
During the arbitration, although a number
of further preliminary reports were raised, including the scope of
the arbitration and
whether or not preliminary points or evidence
could be raised which had no bearing on Sibiya’s evidence,
Commissioner Sambo
refused to deal with such issues until the end of
the arbitration.
[15]
Ultimately, Commissioner Sambo dealt with
the matter as a hearing
de novo,
allowing Mkhize’s representative
to raise preliminary points and call witnesses which had no bearing
on Sibiya’s evidence.
At one stage, he went so far as to advise
the applicant to deal with the hearing as a hearing
de
novo
and present its case again
including recalling all witnesses previously called, irrespective of
whether or not their evidence was
relevant to or emanated from
Sibiya’s evidence.
[16]
Commissioner Sambo ultimately found that
Mkhize’s dismissal was substantively unfair, and ordered
inter
alia
, his reinstatement with immediate
effect and backpay in the amount of R740 007,00.
Proceedings
and Grounds of Review
[17]
On perusal of the papers, the grounds of
review appear to be the following:
17.1.
Commissioner Sambo exceed his powers and/or
committed gross misconduct by assuming power, not delineated by the
SCA in its judgment,
when finding that the GPSSBC had the discretion
to appoint another commissioner other than Commissioner Silas
Ramushowana to arbitrate
the matter;
17.2.
Commissioner Sambo committed a gross
irregularity by refusing to read the SCA judgment which resulted in
him undertaking the wrong
enquiry. The manner in which the
arbitration was to proceed was clearly set out in the SCA judgment;
17.3.
Commissioner Sambo erred in allowing Mkhize
to raise a
point in limine
,
pertaining to charges, irrespective of the fact that the SCA limited
the continued enquiry to evidence pertaining to the Sibiya
Affidavit
only;
17.4.
Commissioner Sambo erred in his conclusion
that the duty was on the applicant to begin, irrespective of the fact
that the SCA limited
the continued enquiry to evidence of Sibiya; and
17.5.
Further he erred in allowing new witnesses
to be called, including Simelane, who had not presented evidence at
the original enquiry
and for considering this new evidence; and
17.6.
Commissioner Sambo failed to have regard to
material evidence.
Evaluation
of Law
[18]
In
the decision of
NEHAWU
obo Hoho v CCMA and Others
[3]
,
the Labour Appeal Court (LAC), when considering similar facts found
that an award was reviewable in circumstances where the Commission
for Conciliation, Mediation and Arbitration, contrary to a court
order, assigned a different presiding officer and allowed the
hearing
of new evidence.
[19]
The LAC found that in circumstances where
the order could not be complied with, parties should have approached
this Court for an
application to vary the order:
“
The
terms of the order made by van Niekerk, J would have had to be varied
by an application, supported by all parties and setting
out the
reason why the initial order could not, appropriately, be complied
with. Such an application needed to be no more than
a brief
explanation of the circumstance, and would have benefited from the
obvious aspect of how another presiding officer should
approach the
matter being expressly addressed so that Van Niekerk J could give due
consideration to an appropriate variation.”
[20]
The failure to comply with a court order
would accordingly justify an arbitration award being reviewed and set
aside. To the extent
that the GPSSBC was unable to comply with such
an order, it was necessary for the parties to apply to the court for
a variation
of the order.
Application
of the law to the facts
[21]
From a reading of the SCA judgment, Mkhize
sought and was granted leave by the SCA for the admission of the
evidence of Sibiya.
As such, the SCA remitted the matter back to the
GPSSBC, before the same commissioner, so that he could consider
Sibiya’s
evidence (and any evidence arising from this
evidence), and whether this evidence and the circumstances giving
rise to the drafting
of the affidavit, were credible and would
warrant the dismissal of the First Respondent being found to be
substantively unfair.
[22]
The
rationale
for the SCA remitting the matter back to the same commissioner, Silas
Ramushowana, must surely have been motivated by the fact
that he was
steeped in knowledge of the evidence presented, which would allow the
arbitration to continue as ordered.
[23]
The only circumstance when the GPSSBC was
permitted to appoint an alternative commissioner was if Commissioner
Silas Ramushowana
was unable to continue with the arbitration.
[24]
It is not plausible to read into the SCA
order a discretion on the part of the GPSSBC to, irrespective of
whether or not Silas Ramushowana
was unable to proceed, appoint a
different commissioner. There were no proper reasons advanced
by the GPSSBC, at the time
the
ex
tempore
ruling was made by Commissioner
Sambo as to why Commissioner Silas Ramushowana was unable to proceed
with the arbitration. In this
regard, it is disturbing that, in light
of the SCA order, Commissioner Sambo was not prepared to investigate
Commissioner
Silas Ramushowana’s availability or allow
representations on this issue, prior to making his ruling.
[25]
In addition, it is abundantly clear that
the scope of the continued hearing was limited to the evidence of
Sibiya, and witnesses
that might need to be recalled to give further
evidence or to be cross-examined in light of his evidence.
Commissioner Sambo failed
to give any guidance in this regard, and
allowed the arbitration to proceed as a hearing
de
novo
irrespective of the fact that the
SCA ordered that “
in the resumed
hearing the evidence heard to date will remain as evidence on the
record and the arbitrator will hear the evidence
of Mr G Sibiya, such
evidence as may be tendered by either party in the light of that
evidence and further evidence from or, if
requested,
cross-examination of, any witness who has already testified if the
arbitration
.”
Conclusion
[26]
The GPSSBC accordingly exceeded its powers
by acting outside of the SCA order when appointing Commissioner Sambo
to arbitrate the
matter. In addition, Commissioner Sambo exceeded his
powers by making a ruling that the GPSSBC had the necessary
discretion to
appoint him to adjudicate the matter and allowed the
arbitration to proceed outside of the parameters of the SCA order.
[27]
In the circumstances, the award must be
reviewed and set aside. Although I am reluctant to remit the matter
back to the GPSSBC in
light of the extensive delays in this matter, I
am likewise bound by the SCA judgment and, in the circumstances, not
in a position
to substitute the arbitration award of the Second
Respondent. Therefore the matter has to be remitted to the GPSSBC,
for a continuation
of the arbitration, as provided for in the SCA
judgment.
Costs
[28]
In terms of s 162 of the LRA I have a wide
discretion whether to order costs or not. In light of the fact that
the Second and Third
Respondents erred in arbitrating the matter, I
do not think it would be appropriate to order costs against the First
Respondent,
despite the fact that they had agreed that costs should
follow the result.
[29]
In the premises the following order is
made:
Order
1.
The arbitration award is reviewed and set
aside;
2.
The matter is remitted to the Third
Respondent for a continuation of the arbitration, as provided for in
the SCA judgment;
3.
Each party to pay its own costs.
___________________________
K A Holmes
Acting
Judge of the Labour Court of South Africa
Appearances:
For
Applicant:
M B Matlohoane
Instructed
by:
The State Attorney, Pretoria
For
the Third Respondent: M P Voyi of Ndumiso Voyi Inc
[1]
No.
66 of 1995, as amended.
[2]
Own
emphasis.
[3]
[2018]
8 BLLR 768
(LAC).