Summary of Judgment

1. Introduction

The proceedings were an application in the Labour Court to review and set aside an arbitration award issued under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA). The review was brought by Eskom Holdings SOC Limited (the applicant) against the CCMA (first respondent), Commissioner Silas Segole N.O. (second respondent), and the National Union of Metalworkers of South Africa (NUMSA), on behalf of Marvin Boitshepo Charlie (third respondent, the employee).

The procedural history was that the employee had been dismissed by Eskom following internal disciplinary proceedings. The employee then referred an unfair dismissal dispute to the CCMA, where the Commissioner issued an award that was favourable to the employee. Eskom subsequently launched a review application in the Labour Court in terms of which it sought to have the award reviewed and set aside. In addition to the review, Eskom sought reinstatement of the review application (due to Practice Manual time-period consequences) and condonation for late steps taken in the litigation.

The dispute’s general subject-matter concerned (a) whether the Commissioner committed a reviewable irregularity by excluding a voice recording tendered by Eskom (treated as hearsay evidence), and (b) interlocutory questions about the continued effect of Practice Manual time-bar consequences after the advent of the new Labour Court Rules on 17 July 2024, together with whether Eskom had shown good cause for reinstatement and condonation.

2. Material Facts

Eskom charged the employee with two categories of misconduct. First, the employee was alleged to have contravened a misconduct provision relating to the unauthorised use of Eskom resources, namely using Eskom vehicles to visit a specified address in July 2018 on two occasions with two different vehicle registration numbers. Second, the employee was alleged to have contravened a misconduct provision prohibiting conduct detrimental to Eskom, based on an allegation that Eskom copper cable was found at the address (5 Rissik Street) on 13 July 2018 and that the employee was implicated in delivering cables to that address.

The court treated as material and effectively undisputed for purposes of the review that the employee was found guilty on the second charge (detrimental conduct relating to the cable) and was dismissed, and that the employee referred the dismissal dispute to the CCMA, culminating in an award in which the employee was reinstated and awarded compensation.

A central factual feature underpinning the review was that Eskom sought to rely on a voice recording attributed to a potential witness, Tiego Rejoice Rasello, and that the Commissioner excluded this recording. The Commissioner’s exclusion was based on factors including that Rasello was unwilling to participate in the arbitration to corroborate the recording, that it would not be fair to delay the proceedings to secure attendance, and that the recording had been obtained by questionable means.

In relation to the interlocutory reinstatement issue, the court relied on the chronology that the CCMA initially provided an incomplete record to the Registrar, prompting a notice in terms of Rule 7A(5). After the incompleteness was discovered and communicated, a complete record was later delivered and a second Rule 7A(5) notice was issued. Eskom delivered its supplementary founding affidavit within the required time calculated from the second Rule 7A(5) notice.

As to condonation for lateness in issuing the review, Eskom’s explanation centred on internal processes for deciding which matters to oppose and the customary December break. The employee opposed condonation on the basis of financial prejudice, but the court considered mitigating features, including delay by the employee in filing certain papers and the fact that reinstatement had been awarded in the arbitration.

3. Legal Issues

The central legal questions the court was required to determine were whether the review application should be reinstated and whether Eskom should be granted condonation for lateness, and then whether the arbitration award was reviewable on the ground that the Commissioner committed an irregularity in excluding hearsay evidence in the form of a voice recording under the Law of Evidence Amendment Act 45 of 1988 (LEAA).

The interlocutory issues were predominantly questions of law and application of law to fact, namely whether the repeal of the Practice Manual by the new Labour Court Rules removed the court’s jurisdiction or discretion to enforce Practice Manual time-bar consequences, and whether the Interpretation Act preserved the effect of penalties incurred under a repealed instrument.

The review issue concerned the application of legal standards to evidentiary rulings in arbitration, focusing on whether the Commissioner properly applied section 3(1) of the LEAA (governing hearsay) within the fairness-based framework applicable to arbitration proceedings. It involved an evaluative assessment of fairness and procedure rather than a pure factual dispute.

4. Court’s Reasoning

On reinstatement, the court addressed Eskom’s argument that because the Practice Manual was repealed when the new Labour Court Rules took effect on 17 July 2024, the court lacked jurisdiction to determine reinstatement under clauses 11.2.2 and 11.2.7. The court reasoned that the new Rules contained no transitional provisions addressing whether Practice Manual penalties continued to operate for matters already underway. It considered that the Interpretation Act applied, and relied on authority confirming its application to rules and related instruments.

The court also invoked the Labour Appeal Court’s recognition that the Practice Manual was binding and gave effect to the Rules, and reasoned that the Practice Manual constituted an instrument made under the authority of law and treated as having the force of law. On that premise, the court applied section 12(2)(d) of the Interpretation Act, which provides that repeal does not affect penalties incurred under the repealed law, unless a contrary intention appears. Because no contrary intention was apparent in the new Rules, the court held that it retained jurisdiction to determine reinstatement and to consider the Practice Manual’s consequences in the case.

The court then considered Eskom’s further contention that it had in substance complied with the relevant time periods, because the record was initially incomplete and a second Rule 7A(5) notice followed the later filing of the complete record. On the facts accepted, the court held Eskom showed good cause: the supplementary founding affidavit was delivered within the required time calculated from the second Rule 7A(5) notice. On this basis, reinstatement was granted.

On condonation for the late issuing of the review (four months late), the court assessed the explanation tendered by Eskom, which focused on internal decision-making processes and the December break. Although the employee alleged prejudice due to loss of income, the court identified mitigating considerations, including the employee’s own significant lateness in filing the answering affidavit in the condonation proceedings and the fact that reinstatement had been awarded, such that dismissal of the review would not in itself resolve financial prejudice as framed. The court concluded the explanation was satisfactory and granted condonation.

On the merits of the review, the court identified a single ground: whether the Commissioner committed an irregularity in excluding the voice recording under section 3(1) of the LEAA. The court noted authority that the application of section 3(1) in arbitration proceedings is grounded in fairness. It accepted that the Commissioner excluded the recording because Rasello was not willing to testify to corroborate it, it would be unfair to delay proceedings to secure attendance, and the recording was obtained by questionable means.

The court held that the Commissioner had properly given effect to section 3(1) by considering that the person upon whose credibility the probative value depended was unwilling to testify, and by weighing fairness considerations including the need for speedy resolution and minimising costs. In response to Eskom’s submission that the Commissioner failed to appreciate the recording’s probative value and imposed an unduly high standard (suggested to be akin to proof beyond reasonable doubt), the court reasoned that reliance on probative value under section 3(1)(c)(iv) could not be isolated from the broader set of requirements in section 3(1)(c). Because the statutory requirements operate together, the court found Eskom’s argument misdirected and not sustained. The court accordingly concluded that the Commissioner’s exclusion of the recording did not constitute a reviewable irregularity, and the review application failed.

On costs, the court considered that Eskom had succeeded in the opposed reinstatement and condonation applications, and took the view that opposition to those interlocutory applications should not have occurred given Eskom’s apparent prospects on them. At the same time, Eskom failed on the merits of the review. Balancing success between the parties, the court ordered each party to pay its own costs.

5. Outcome and Relief

The court reinstated the application, condoned the late filing of the supplementary founding affidavit, and dismissed the review application.

The final relief was that the review was dismissed and each party was ordered to pay its own costs.

Cases Cited

National Bargaining Council for the Road Freight Industry & others v Attorney-General, Witwatersrand Local Division, Johannesburg & others (1999) 20 ILJ 170 (LC)

Latiff v Donro (Pty) Ltd (2004) 25 ILJ 2219 (LC)

Samuels v Old Mutual Bank [2017] 7 BLLR 681 (LAC)

Total Mashiane v Safety and Security Sectorial Bargaining Council (Unreported, Case No. JR 1623/21) [2024] ZALCJHB 432 (13 November 2024)

Exxaro Coal (Pty) Ltd v Chipana and Others [2019] 10 BLLR 991 (LAC)

Legislation Cited

Interpretation Act 33 of 1957

Law of Evidence Amendment Act 45 of 1988

Rules of Court Cited

Rule 7A(5) of the Rules regulating the conduct of the proceedings of the Labour Court (as referenced in the judgment’s procedural chronology)

Held

The Labour Court held that it had jurisdiction to determine reinstatement and condonation notwithstanding the repeal of the Practice Manual, because the Interpretation Act applied and there was no contrary intention in the new Rules to displace penalties incurred under the repealed Practice Manual. On the facts, good cause was shown for reinstatement because the supplementary founding affidavit was filed within time calculated from the second Rule 7A(5) notice after the complete record was delivered.

On the merits, the court held that the Commissioner did not commit a reviewable irregularity in excluding the voice recording under section 3(1) of the LEAA. The Commissioner’s decision was treated as consistent with the fairness-based approach to hearsay in arbitration, particularly given the unwillingness of the declarant to testify, the fairness implications of delaying proceedings, and the circumstances in which the recording was obtained. The review application was therefore dismissed.

LEGAL PRINCIPLES

The judgment applied the principle that, where an instrument having the force of law is repealed and the replacement contains no transitional provisions, the Interpretation Act 33 of 1957 may preserve the effect of penalties incurred under the repealed instrument, absent a clear contrary intention, including under section 12(2)(d).

It reaffirmed that the Labour Court may treat the Practice Manual as binding in the sense recognised by the Labour Appeal Court, and that procedural consequences incurred under it may remain relevant to pending matters where preserved by interpretation principles and where not displaced by the new rules framework.

In relation to evidence in arbitration, the judgment applied that the admission of hearsay under section 3(1) of the Law of Evidence Amendment Act 45 of 1988 in arbitration proceedings is guided by fairness, and that probative value considerations under section 3(1)(c) must be assessed together with the full set of statutory factors rather than in isolation.