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[2020] ZALCJHB 79
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Kwinda v Commission for Conciliation, Mediation and Arbitration and Others (JR2203/16) [2020] ZALCJHB 79 (12 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
Number: JR 2203/16
In
the matter between:
SARA
NTHABISENG KWINDA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
J.A.
PRETORIUS N.
O.
Second Respondent
OK
SHOPRITE FURNITURES
Third Respondent
Heard:
10 January 2020
Delivered:
12 May 2020
By
Email"
Summary:
Review
Application - to review Dismissal Ruling of the 2
nd
Respondent acting
under
auspices of the 1st Respondent. The Applicant failed to set out a
proper case on the Founding Affidavit - Application dismissed.
Adverse Attorney and Client order
de bonis propriis
against
Applicant's Attorneys who need to show cause why this Court should
not make such an order against them
JUDGMENT
RAMDAW,AJ
Introduction
[1]
The Second Respondent (the
commissioner), a commissioner acting under the auspices of the First
Respondent, the Commission for Conciliation,
Mediation and
Arbitration (CCMA) dismissed an arbitration under Case Number GNTWS-
423/2016 as a result of the failure of the Applicant
to attend. The
Applicant and her union representative arrived after the arbitration
was dismissed.
[2]
An Application for Rescission of the
aforesaid ruling was brought and opposed by the Third Respondent.
Therein, the Applicant gave
conflicting reasons for her absence which
resulted in the said application being refused on 30 September 2016.
This application
is a review in respect of the ruling dismissing the
arbitration due to non-attendance (the dismissal ruling) only and not
against
the dismissal of the rescission application (the rescission
ruling), as no mention is made of same, which is borne out by the
Applicant's
grounds of review per the founding affidavit.
[3]
The review application is dated 13
October 2016 and is brought outside the 6 weeks period
from the date of the
dismissal ruling which
was given on 12 August 2016. No application for
condonation for any late filing
has been made.
[4]
The Applicant changed attorneys of
record six times and on the date of the hearing of this matter there
was no appearance by any
legal practitioner for the Applicant. The
Applicant insisted that the matter proceed and that she will
represent herself. The Court
assisted her to the extent necessary and
took into consideration all the pleadings as well as the heads of
arguments filed on her
behalf.
Background
[5]
Recorded in the dismissal ruling of the
commissioner on 12 August 2016, the Applicant failed to attend the
arbitration scheduled
for 12h00. After 15 minutes grace the same was
dismissed at 12h20. The Second Respondent was satisfied that proper
notice was given
to the Applicant per registered post before
dismissing the arbitration.
[6]
On 23 August 2016 the Applicant brought
an Application for the rescission of the aforesaid dismissal ruling.
The same was opposed
by the Third Respondent. In her application, she
stated under oath that she became aware of the aforesaid ruling on 13
of August
2016. Further, that she did not attend the arbitration
hearing as she was off-sick for the whole of 12 August 2016. She then
went
to the CCMA on 13 August 2016 to check on her matter
"after
being better from illness to find that my case was dismissed due to
non-appearance".
She stated
that
"on the 12th of August 2016
I was sick and I could not be able to attend the CCMA. The Doctor
gave all day
of
12th
of August 2016 to rest".
[7]
She went on to state that the CCMA sent
her an SMS notifying her of her arbitration. On the date of the
arbitration she did not
make it due to her falling ill on 11 August
2016 at around midnight. On 12 August 2016 she went to attend a
Doctor who gave her
a sick note for the day to rest.
[8]
She contests both the procedural and
substantive fairness of her dismissal and states that she has good
prospects of success. She
sought a rescission of the dismissal ruling
as it was erroneously issued in her absence. On 30 September 2016 the
Second Respondent
issued a written ruling dismissing the application
for rescission.
[9]
The commissioner drew a negative
inference from the conflicting versions as set out in the Affidavit
as to the reasons why the Applicant
did not attend the arbitration
proceedings scheduled for 12 August 2016. He did recall the Applicant
and her union representative
arriving late after the dismissal of the
arbitration for non-attendance. He stated that on 3 occasions her
name was called out
by the CCMA staff, and there was no response
[10]
The Applicant and her union
representative averred that they were present and their names were
not called hence their non-appearance.
The Third Respondent opposed
this application and stated that the
Applicant was
dishonest in that she committed herself to
four different versions to explain her absence at the arbitration.
The Third Respondent
states that the relief as sought by the
Applicant and set out in the notice of motion is vague and
embarrassing.
[11]
The Applicant's Union wrote to the
Third Respondent requesting leave of absence for a potential witness
for the hearing set
down on 12 August 2016 which confirms that they
were well aware of the date and time of the hearing. The Applicant
failed to include
the Third Respondent's Answering Affidavit to the
Application for Rescission on record and the same was submitted by
the Third
Respondent in their answering affidavit.
[12]
The Applicant states that she became
aware of the hearing on the night of 11 August 2016 and not earlier,
which appears to be incorrect.
The Third Respondent states that no
proper case for a review has been made out in the Founding Affidavit
which makes no mention
of the rescission hearing being reviewed.
[13]
As per a memorandum dated 11 August 2016
from HOTELLICA, a Trade Union representing the Applicant, Mr R Msele
addressed the HR and/
Manager of OK Furniture stating:
"Kindly
take note that MR DAVID MURAGA is the witness of the Applicant. We
therefore require the company to release the witness
at CCMA on the
12th of August 2016. The matter will be held at 12h00 at the CCMA in
Pretoria".
[14]
The Applicant appeared to have fell ill
on the night of 11 August 2016 and attended a Doctor who, per his
Medical Certificate is
a
"Traditional
Healer''
and not a practising
Medical Practitioner.
[15]
The arbitration was set down for 12 noon
on the 12 August 2016. The CCMA has roll call at 09h00 and thereafter
at 12 noon. The Second
respondent states that the Applicant's name
was called on 3 different occasions and only after 12h20 was the
dismissal ruling made.
[16]
The Third Respondent recalls that the
Applicant and her union representative coming to him at about 12h50
complaining that their
names were not called and if called they did
not hear same being called, hence their non-appearance. They were
advised that the
matter was already dismissed and that the Third
Respondent's representative had already left. This is all contained
in the transcript
filed by the Third Respondent. As per a badly
drafted "vague and embarrassing" notice of motion annexed
to an equally
badly drafted founding affidavit the Applicant seeks
inter alia
the
following crucial relief:
"Review
of the whole Dismissal Ruling of Commissioner JA Pretorius."
[17]
It is stated in the Notice of Motion
that
"the legal representative
aver and submitted to the Honourable Commissioner Pretorius that the
Applicant will arrive late and
will not attend the Arbitration
proceedings should the medical practitioner deem the Applicant right
to attend activity".
He goes on
to say that there was a request for a postponement which was turned
down.
[18]
The Applicant states under oath in her
rescission application that she attended the CCMA on 13 August 2016
to enquire as to what
happened in her matter to be advised that the
same was dismissed as a result of her non-appearance. The Third
Respondent argues
that this is factually incorrect as 13 August 2016
was a Saturday and the CCMA Offices are closed on a Saturday.
[19]
It is quite clear that what is
stated under oath to have happened on
the 13th August 2016 actually
took place on the 12th August 20126
have anything happened on the 12th of August 2016 if she did attend
the CCMA offices. She was
represented by a Union Official who despite
her illness would have been in attendance of the CCMA arbitration to
seek a postponement.
It does appear that he never did so as he was
aware of both the date and time of the hearing. The medical
certificate issue appears
to be nothing but a cover-up to explain the
Applicant's absence and not being fit for work on the 12th of August
2016. It is rather
absurd as she was already dismissed and on her own
version was at the CCMA. It could only be on the 12th of August 2016
as the
13th of August 2016 was on a Saturday.
[20]
The Applicant states under oath that she
only became aware of the set down for 12 August 2016 at midnight of
11 August 2016 per
a SMS message from the CCMA. This is rather absurd
as firstly the Union wrote a memo to the Third Respondent on 11
August 2016
about a potential witness. The Applicant would have been
advised of the date as the notice was sent via registered post. The
CCMA
does remind parties of the dates for the hearing at least a few
days before the hearing but not at midnight. The Third Respondent
having dismissed the arbitration could not entertain an application
for a postponement or to stand the matter down.
[21]
At the rescission Application hearing
(which was recorded and forms part of the transcription submitted as
the records) the Applicant
and her Union Representative gave other
explanations for her absence when questioned by the Second
Respondent. The Third Respondent
is correct when stating that
"four
different versions"
were given
as this is evident from both the affidavits and records of the
proceedings.
Test
for Review
[22]
This
test for a review of a CCMA award or ruling has been cemented in the
case of
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commissioner
for Conciliation, Mediation and Arbitration and Others
[1]
wherein
it was held that there must be a ground listed in section 145(2) of
the Labour Relations Act
[2]
(LRA) present, and the presence of such ground must render the award
unreasonable
[3]
. It is therefore
a two pronged test.
[23]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
[4]
the
Constitutional Court held that section 145 of the LRA is
"suffused'
by
the constitutional standard of reasonableness and that the test for
reasonableness is:
"Is
the decision reached by a commissioner one that a reasonable
decision maker could not reach?'
[5]
[24]
Furthermore
in reaching such a decision, the Labour Court in
Saska
(Pty) Ltd v Buthelezi and Others
[6]
provided
that a commissioner cannot ignore material evidence in a review, as
such ignorance will amount to misconduct justifying
the setting aside
of an award.
[7]
[25]
In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[8]
the
Court reaffirmed the
Sidumo
test
as a stringent test allowing the setting aside of the award where the
outcome is entirely disconnected from the evidence or
is unsupported
by evidence or involves speculation by the commissioner.
[9]
Therefore, for a defect in the conduct of proceedings to amount to a
gross irregularity as contemplated by section 145(2)(a)(ii),
the
arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result.
[10]
Analysis
[26]
The Applicant lodged the review
application outside the 6 weeks period calculated from 13 August
2016, the date on which the Applicant
states that she became aware of
the dismissal ruling. No application for condonation by any of the 6
different sets of attorneys
on record, have been made. The Applicant
elected to argue her own case and the Court assisted her to the
extent necessary to place
all the facts, pleadings and arguments
before the Court. I will accept that the review application is
against the dismissal of
the rescission application read with the
dismissal ruling. If so the same has been lodged within the 6 weeks
period and there was
no need for a condonation application.
[27]
The commissioner dealt with a Rescission
Application and had to take into consideration the reasons for the
default, prejudice to
the parties, prospects of success and had to
consider the application before him in terms of applicable principles
and case law.
His reasoning in dismissing the rescission application
is the decision of a reasonable decision maker and his earlier ruling
dismissing
the arbitration stands.
[28]
The fundamentals of the
Sidumo
test has been met and so has the
components of reasonableness been met showing that both these rulings
were a decision of a reasonable
decision maker. I cannot find that
the commissioner committed a gross irregularity in arriving at the
decision he made, given the
different conflicting versions made under
oath as to the non-appearance at the arbitration. There has been a
grave deal of tardiness
and negligence on the part of both the Union
representing the Applicant and her initial attorneys who drafted a
review application
in a very haphazard and absurd manner in that it
failed to set out a proper case for a review. A case has to be made
out in the
Founding Affidavit, not in any reply, supplementary
affidavit or heads of arguments.
Negligence
of the applicant's representation
[29]
The applicant had 6 sets of attorneys on
record, who are as follows:
29.1
Madala Komape Attorneys
29.2
Sekgale Seshabe Attorneys
29.3
Ranthoko Attorneys
29.4
A Malaza Attorneys
29.5
Ma Selota Attorneys
29.6
Ntulini Attorneys
[30]
Ntulini
Attorneys filed the Applicants Heads of Arguments on 8 February 2019.
On 30 September 2019 the Registrar of this Honourable
Court served
the Notice of set down on Ntulini Attorneys
[11]
and an "OK Transmission Report" was received. I am
satisfied that there was proper service. Further, the Applicant
appeared
on 10 January 2020 which confirms proper receipt of the
Notice of Set Down and Ntulini Attorneys failed to attend the hearing
of
the matter, despite a timeous receipt of a Notice of Set Down.
[31]
No Notice of withdrawal of Attorneys of
Record appears in the Court file nor has there been any explanation
from this firm of attorneys
showing discourtesy to both this Court
and to their client. This Court can only sympathise with the
Applicant who received poor
representation from both her Union and
the 6 firms of attorneys she may have engaged out of desperation to
cover up an oversight
by her Union Representative who failed to
arrive timeously at the CCMA arbitration. He arrived 50 minutes late
after the matter
was dismissed. However, this Court is bound by the
pleadings before it and has to decide this matter on the said
pleadings. The
said union representative was very evasive and
argumentative when questioned by the Second Respondent as per the
transcript filed.
It is clear that the reasons for non-attendance
were unacceptable and conflicting. Despite this, 6 firm of attorneys
pursued this
review application which can only be termed as frivolous
and vexatious. I agree with the Third Respondent's counsel who terms
this
as nothing but perjury as they were all made under oath.
Costs
[32]
The court has a discretion when it comes
to cost. This application is both frivolous and vexatious, lacking
any merit and is both
a poorly and badly drafted application which
the Third Respondent had no choice but to oppose to finality. The
fact that six firms
of attorneys are on record for the Applicant
speaks for itself that the union HOTELLICA may have been driving the
process. The
case number used was initially incorrect and the
pleadings were misfiled leading to delays. A formal application was
brought to
correct same.
[33]
This application could have been easily
withdrawn given a lack of merit in light of the strenuous opposition,
yet all six firms
of attorneys pursued this matter. However, after
flogging a dead horse the last firm of attorneys of record elected
not to appear
before this Court to present their client's case, which
is both highly unethical and unprofessional. The have thrown their
client
to the wolves and this Court had to guide her to the extent
necessary as she wanted this matter finalized after presumably being
mulcted in costs by her six legal representatives.
[34]
As a matter of disapproval of such
conduct whilst the Applicant could have been referred to either Legal
Aid, SASLAW (who has an
office at the seat of this Court) or any
pro
bono
organisation the said attorneys
all elected to be parties to a botched up application and failed to
discharge their professional
and ethical duties as outlined herein.
[35]
I do not see any reason why all six law
firms as listed herein should not pay the Third Respondent's costs on
an Attorney and Client
scale
de bonis
propriis.
This order will deter
legal practitioners who get involved in bringing frivolous and
vexatious actions lacking merit to this Court,
increasing its already
over burdened court roll, impacting on the expeditious
resolution of labour disputes as
'Justice
delayed is justice denied".
This
remains a 2016 matter heard in 2020 some 3 years later.
[36]
Our Constitution promotes the speedy and
expeditious resolution of labour disputes and this Court promotes
same as per the many
judgements issued to date condemning delays and
applications lacking any merit.
[37]
In the premises the following order is
made:
Order:
1.
The
Application for review is dismissed.
2.
The six firms of attorneys who are on
record for the Applicant from the inception of this matter namely:
2.1
Madala Komape Attorneys
2.2
Sekgale Seshabe Attorneys
2.3
Ranthoko Attorneys
2.4
A Malaza Attorneys
2.5
Ma Selota Attorneys
2.6
Ntulini Attorneys
are
hereby directed to appear before this Court on a date to be
determined by the Registrar to show cause why an order should not
be
made in the following terms:
a.
That each of the six firm of attorneys
listed above are jointly and severally liable, the one paying and the
other to be absolved
for the Third Respondent's costs granted
de
bonis propriis
against them on the
scale as between Attorney and Client.
A.
Ramdaw
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Ms Sarah
Nthabiseng Kwinda
For
the Third Respondent: Jonathan Jones from Norton Rose Fullbright
South Africa Inc.
[1]
[2014] 1 BLLR 20 (LAC).
[2]
No. 6 of 1995, as amended.
[3]
See:
Gold
fields Mining
(supra
fn 1).
[4]
[2007] 12 BLLR 1097
(CC).
[5]
Ibid at paras 88, 104, 105 and 110.
[6]
[1997] 12 BLLR 1639 (LC).
[7]
Ibid at p. 639
[8]
[2013] 11 BLLR 1074 (SCA)
[9]
Paragraph 13
[10]
See:
Herholdt
(supra
fn 8). See also:
Head
of the Department
of
Education
v Mofokeng and others
[2015]
1 BLLR 50
LAC at paras 32-33.
[11]
At facsimile no: 086 662 9712.