IN THE LABOUR COURT OF SOUTH AFRICA
Held in Johannesburg
Case No.J874/97
In the matter between
Applicant
and
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
THE CHAIRPERSON OF THE GOVERNING
Sixth Respondent
JUDGEMENT
ZONDO J.
[1] In this matter the applicant applies for an order reviewing and setting
aside an arbitration award which was issued by the first respondent, a
CCMA commissioner, in favour of the third up to the fifth respondents
in a dispute about the fairness or otherwise of their dismissal by the
applicant from its employ.
[2] Before I proceed I need to deal with one procedural matter. The case
which the applicant pursued during argument was wider than the case
which was foreshadowed in the applicant’s founding affidavit in that
some of the grounds on which the applicant sought to have this Court
review and set aside the first respondent’s award did not form part of
the case covered by the founding affidavit. However, those grounds
were included in a later supplementary affidavit filed on behalf of the
applicant. The second, third, fourth and fifth respondents filed their
own supplementary affidavit in answer thereto. The second up to the
fifth respondents complain that, as such grounds of review were not
included in the founding affidavit but only in a later supplementary
affidavit, the Court should not permitt the applicant to pursue that part
of its case which is covered by such grounds.
[3] While I agree with the second up to the fifth respondents that the
proper affidavit to contain an applicant’s case in motion proceedings is
the founding affidavit, I am of the opinion that there are cases where
an applicant may be allowed to pursue a case which is not covered by
its founding affidavit provided (a) such case is covered in a subsequent
affidavit (b)all other parties are given an opportunity to respond
thereto and (c) either there is no prejudice to be suffered by the
respondents or if there is prejudice to be suffered by the respondents,
such prejudice as they may stand to suffer, can be cured by the
opportunity to respond thereto with or without an appropriate costs
order. Whether or not the Court allows this is in the discretion of the
Court. The Court is required to exercise such discretion judicially
with due regard to fairness to all parties. The Court would also need to
be furnished with a sound explanation why the case which is sought to
be pursued was not foreshadowed in the founding affidavit. The Court
would consider this even before it considers other factors.
[4] In this case the applicant’s reasons for not including those grounds of
review in the founding affidavit and for only including them later in a
supplementary affidavit are set out in the supplementary affidavit of
the applicant. I do not propose detailing them here as they are clearly
set out in the supplementary affidavit. I am satisfied that this is a
proper case where the Court should allow the matter to be dealt with
on the merits without excluding those grounds of review. To do
otherwise would cause serious prejudice to the applicant whereas, by
including them, the respondents are not prejudiced in any way as they
have had the opportunity to file their answering affidavits thereto and
have actually done so. I now turn to the factual backround to this
matter.
[5] The dismissal occurred after disciplinary inquiries in which the third,
fourth and fifth respondents were charged with assaulting one Mr
Phillemon Limphoko during a strike on the 18th February 1997. The
assault is alleged to have taken place outside a cafe which is in the
vicinity of the applicant’s premises. Mr Limphoko was one of the
temporary employees employed by the applicant during the strike.
[6] Following upon the disciplinary inquiries referd to earlier, the third,
fourth and fifth respondents, ( “the employee respondents” ) were
found guilty and were dismissed. Unhappy with this result, the
employee respondents referred a dispute of unfair dismissal to the
Commission for Conciliation, Mediation and Arbitration ( “the
CCMA”) for conciliation. When conciliation failed to produce a
settlement of the dispute, the dispute was referred to arbitration. The
first respondent was appointed as the arbitrator. After hearing
evidence and reserving his award, the first respondent issued an award
in terms of which he found the dismissal of the third, fourth and fifth
respondents to have been unfair and ordered the applicant to reinstate
them with retrospective effect to the date of their dismissal. It is this
award that the applicant is asking this Court to review and set aside.
[7] The first ground on which the applicant seeks to have the first
respondent’s award reviewed and set aside is that the first respondent
refused it legal representation when it applied at the commencement of
the arbitration proceedings to be legally represented. It is common
cause that the first respondent refused such application. What is not
common cause is what occurred at the arbitration at the time of that
application. Also certain statements which are attributed by the
applicant to the first respondent at the time are in dispute.
[8] Part C of Chapter III of the Labour Relations Act, 1995 (Act 66 of
1995) ( “the Act” )deals with the resolution of disputes under the
auspices of the CCMA from sec 133 to sec 150 of the Act. Both
sections 138(4) as well as sec 140(1) fall within Part C and they both
say something about representation before the CCMA. The heading to
sec 138 is: “General provisions for arbitration proceedings”. The
heading to sec 140 is : “Special provisions for arbitration about
dismissals for reasons related to conduct or capacity”.
[9] Sec 138(4) reads thus : “In any arbitration proceedings, a party to
the dispute may appear in person or be represented only by a legal
practitioner, a co employee or by a member, office bearer or
official of that party's trade union or employers' organization and,
if the party is a juristic person, by a director or an employee”.
[10] sec 140(1) reads :
“(1) If the dispute being arbitrated is about the fairness of a dismissal
and a party has alleged that the reason for the dismissal relates to
the employee's conduct or capacity, the parties, despite section 138
(4), are not entitled to be represented by a legal practitioner in the
arbitration proceedings unless
(a) the commissioner and all the other parties consent;
or
(b) the commissioner concludes that it is unreasonable to
expect a party to deal with the dispute without
legal representation, after considering
(i) the nature of the questions of law raised by the dispute;
(ii) the complexity of the dispute;
(iii)the public interest; and
(iv) the comparative ability of the opposing parties or their
representatives to deal with the arbitration of the dispute”.
[11] From a reading of sec 138(4) and sec 140(1), it seems that in
arbitration proceedings before the CCMA other than in those
arbitration proceedings which relate to disputes about dismissals for
conduct or capacity, the norm is that there is a right to legal
representation. However, in those arbitration proceedings relating to
disputes about dismissal for conduct or capacity there is, as a general
rule, no right to legal representation. In the latter case the right to legal
representation exists only in two situations. The one situation is where
not only all parties to the dispute consent to legal representation but
also the commissioner consents. That is the sec 140(1)(a) situation.
The other situation is where, after considering the factors set out in sec
140(1)(b)(i) to (iv), the commissioner concludes that it is unreasonable
to expect a party to deal with the dispute without legal representation.
That is the sec 140(1)(b) situation.
[12] In a case where the consent of all parties has not been given to one or
more of their number to be represented by a legal practitioner in an
arbitration of a dispute of a dismissal on grounds of conduct or
capacity, for a party to acquire the right to be represented by a legal
practitioner, it is essential that the commissioner must have first
concluded that it would be unreasonable to expect the party to deal
with the dispute without legal representation. If he/she does not come
to this conclusion, no right to legal representation is acquired. If,
however, the commissioner reaches such conclusion, the right to legal
representation is acquired. Once the commissioner has reached that
conclusion, he or she has no discretion the party concerned becomes
entitled to be represented by a legal practitioner in the arbitration
proceedings. It is not a matter of discretion on the part of the
commissioner at that stage.
[13] In my view the effect of sec 140(1) is therefore that, in a case to which
sec 140(1)(b) applies, the central question is whether or not the
commissioner is able to conclude that it would be unreasonable to
expect the party seeking to be represented by a legal practitioner to
deal with the dispute without legal representation. Accordingly, the
party applying for legal representation should seek to persuade the
commissioner to conclude in its favour that to so expect would be
unreasonable whereas the party, if any, opposing that the first
mentioned party be legally represented should direct its arguments and
evidence to showing that it would not be unreasonable to let the party
concerned deal with the dispute without legal representation. In
directing their focus to this issue, the parties must address the issues
enumerated in sec 140(1)(b)(i)(iv).
[14] In my view sec 140(1)(b) does not, therefore, envisage a situation where
the issue whether it would be unreasonable to expect the party
concerned to conduct the dispute without legal representation is
simply a factor to be taken into account together with the matters
enumerated in sec 140(1)(b)(i)(iv). Rather that is the central question
which the consideration of the matters stipulated in sec 140(1)(b)(i) to
(iv) is directed at answering. The answer to that question is the one
that determines whether the party seeking legal representation then
becomes entitled to it or not. This reasoning is based on the specific
wording of sec 140(1), especially the use of the negative therein
coupled with the use of the word “unless”. When it is said a person is
not entitled to X unless a certain event occurs, it necessarily means
that, when that event occurs, he will be entitled to X. It does not mean
that at that stage he may or may not be entitled to X. It is like an
ultimatum to strikers which says to them : unless you return to work
by X time, you will be dismissed. Such an ultimatum means that, if
workers return to work by X (and thereby comply with the ultimatum),
they will not be dismissed. It does not mean that even if they comply
with the ultimatum, they may or may not be dismissed. (See
Administrator, OFS & Others v Makoponele & Others 1990 (3)
780 (A)) . With the above in mind, I turn to consider the applicant’s
complaint about the first respondent’s decision refusing it legal
representation.
[15] The applicant’s allegations relating to its complaint about its denial of
legal representation are to be found in paragraphs 6.2 up to 6.7 of its
supplementary affidavit. Its complaint is that, in refusing it legal
representation, the first respondent did so without considering the
factors set out in sec 140(b)(i)(iv), that, without considering the
application for legal representation, the first respondent said legal
representation was automatically precluded, that, having looked at sec
140 after being given a copy of the Act by the applicant’s
representative, the first respondent immediately said he was refusing
legal representation and that he refused the application for legal
representation without inquiring whether the representative of the
employees had an objection to such application.
[16] There is a factual dispute on the papers about the allegations the
applicant relies upon in this regard. The employee respondents deny
that the first respondent ever said legal representation was
automatically precluded. They also deny the allegation that a copy of
the Act was shown to the first respondent by a representative of the
applicant. They also deny that the first respondent ever said, after
looking at sec 140 from a copy of the Act provided to him by the
applicant’s representative, that he was refusing legal representation.
The respondents say that the first respondent called for argument on
the applicant’s request for legal representation and that the
representative of the second up to the fifth respondents did object to
the application and argued that, as he, (i.e. the representative of the
employees), was not legally qualified, the applicant should not be
granted legal representation. No request was made for the matter to be
referred to oral evidence to resolve these or any other disputes of fact.
[17] The applicant has submitted that these disputes of fact on this issue
must be resolved in its favour in the absence of an affidavit by the first
respondent and in the light of the first respondent’s failure to furnish
reasons for his decision refusing the applicant’s application for legal
representation. As to what the applicant alleges the first respondent to
have said in regard to its application for legal representation, one
would have thought that the first respondent would have filed an
affidavit to deal with the applicant’s allegations in this regard because
they are of a serious nature. He has not done so. However, the fact that
he has not filed an affidavit does not on its own entitle the applicant to
have its version accepted. I say this because the second up to the fifth
respondents were present at the arbitration at the time and they deny
that the first respondent made the statements attributed to him by the
applicant.
[18] The one allegation by the applicant which I initially thought must be
accepted in the absence of an affidavit by the first respondent and
despite a denial thereof by the second up to the fifth respondents is the
allegation that the first respondent did not consider the application or
that he did not consider the matters set out in sec 140(1)(b)(i)(iv). I
thought whether or not the first respondent considered the application
or the matters set out in sec 140(1)(b)(i)(iv) could only be within the
knowledge of the first respondent. I thought any other person, e.g. the
second up to the fifth respondents, could only infer that the first
respondent had done so if he had given reasons therefor. As he had
neither said so nor given reasons for his decision, I thought a denial by
the second and further respondents of the allegation by the applicant
that the first respondent had made the decision without considering
the application or without considering the matters set out in sec 140(1)
(b)(i)(iv) did not and could not raise a genuine dispute of fact. I
thought such a denial could only be based on speculation. I thought, if
that allegation stood uncontroverted, then the first respondent had
committed a gross irregularity in refusing such application without
considering it or without considering the matters set out in sec 140(1)
(b)(i)(iv).
[19] However, I later changed my mind on this when, going through the
affidavits again, I came across what the applicant says in paragraph
11.2 of its supplementary affidavit. There the applicant in effect says,
although initially the first respondent refused legal representation on
the basis that legal representation was automatically precluded, the
first respondent had subsequently accepted an invitation by the
applicant’s representative to peruse the relevant provisions of the Act.
Then the deponent to the applicant’s supplementary affidavit says the
first respondent “did then consider the factors listed in section
140(1) ...” The effect of this is that the Court’s decision on this
complaint must be taken on the basis that the first respondent
considered the matters set out in sec 140(1) and came to the
conclusion that legal representation should be refused. Therefore, on
the applicant’s own version, the first respondent did consider the
application and the matters set out in sec 140(1)(b) of the Act. In the
light of this, the only question would be whether or not the first
respondent’s decision on the merits of the application is reviewable.
[20] I have already found above that a party who applies for legal
representation in terms of sec 140(1)(b) of the Act must seek to
pursuade the commissioner to conclude that it would be unreasonable
for the commissioner to expect such a party to deal with the dispute
without legal representation. Such a party must seek to do this with
reference to the matters set out in sec 140(1)(b)(i)(iv). There is
nothing before me which suggests that the applicant had made out a
case to that effect before the first respondent. The second up to the
fifth respondents have said that it was argued on their behalf that, as
their representative was not a legal practitioner, the first respondent
should not permit legal representation for the applicant.
[21] As to the matters set out in sec 140(1)(b)(i) to (iv) of the Act, the
following emerges from the papers :
(a)There is nothing in the papers to suggest that the applicant ever told
the first respondent what questions of law arose in the dispute;
(b)There is nothing before me to suggest that the first respondent was
ever told on what basis it could be said that this dispute was complex;
in fact this was a very simple dispute largely dependent on facts
whether the third up to the fifth respondents were the people who had
assaulted Mr Limphoko.
(c)It was never argued before the first respondent nor was it argued
before me that there was any public interest in this matter; in fact there
is no public interest in this matter at all.
(d)It was not argued before the first respondent, nor was it argued
before me, that the comparative abilities of the opposing parties or
their representatives were such that, comparatively speaking, the
representative of the employees at the arbitration was stronger than the
two representatives of the applicant and that the denial of legal
representation to the applicant would place the applicant in a
disadvantageous position visavis the representative of the employee
respondents. In all fairness no such argument could be presented as the
applicant’s representatives were an industrial relations manager and an
industrial relations adviser. The employee respondents were
represented by a union official.
[22] Bearing the above in mind, it seems quite clear to me that, even
though the first respondent did not give reasons for his ruling, the
application could simply not succeed in the light of the glaring
weaknesses in the applicant’s case for legal representation as outlined
above. Even if I were to rule that the first respondent had committed a
gross irregularity in refusing the application without considering the
matters set out in sec 140(1)(b), I would have refused the application
on considering it on the merits. I am saying this because the applicant
requested that I should consider its request for legal representation and
decide it myself if I set aside the first respondent’s decision not to
allow legal representation
[23] The question that still remains then in relation to the first respondent’s
ruling on legal representation is what I must make of the fact that the
first respondent has not furnished reasons for his ruling despite the fact
that he was obliged to give reasons for such a ruling. That he was so
obliged can simply not be in dispute in the light of the provisions of
sec 138(7) of the Act as well as the provisions of article 33(1) and (2)
of the constitution. Sec 33(1) says everyone has the right to
administrative action that is lawful, reasonable and procedurally fair.
In terms of article 33(2) says : “Everyone whose rights have been
adversely affected by administrative action has the right to be
given written reasons” . See also paragraph 1521 of the as yet
unreported judgement of the Labour Appeal Court in Carephone
(Pty) Ltd v Marcus N.O. & Others case No JA 52/98.
[24] Does the failure of the first respondent to give reasons for his ruling on
legal representation have the effect that on that ground alone his ruling
must be reviewed and set aside? Neither the constitution nor the Act
says what the consequences or effects are of a public official’s or
body’s failure to give reasons for his or its decision where it is obliged
to give reasons. One approach would be to say such a failure
automatically means that the ruling must not be allowed to stand and
must be reviewed and set aside. That approach would have the
following as its advantages :
(a)it would deter public officials from not giving reasons for their
decisions or their rulings because they would know that such failure
would render their decisions or rulings reviewable;
(b)it would encourage the giving of reasons for decisions and rulings
which in turn may reduce the number of rulings or decisions which get
challenged in Court;
(c) it would promote accountability , openness and responsiveness that
the Labour Appeal Court referred to in par 19 of the Carephone
judgement as being the purpose of the administrative justice section of
the Bill of Rights.
[25] The disadvantages of adopting such an approach would be that :
(a)a decision which deserves to be allowed to stand if one has regard
to the material that was before the commissioner when he/she made
such a decision would be set aside merely because the commissioner
failed to give reasons even if he or she could have given good
reasons if he or she had bothered to give reasons. This could well
penalise the innocent party to the dispute.
(b) it may unduly delay finality in litigation and contribute to the
already high litigation costs.
(c)it may encourage formalism and technicality at the expense of
substance.
(d)it would unduly encourage litigation in respect of matters which
could well have never been brought to court.
[26] Another approach would be to say that, ordinarily, the remedy to deal
with a failure by a public official to give reasons for his/her decision
or ruling is to approach a court of competent jurisdiction for an order
compelling such official to give reasons for his or her decision or
ruling and to say that, therefore, there is no reason why that remedy
cannot be said to be capable of ensuring accountability, openness and
responsiveness. Such an approach may also ensure that a decision
without reasons will not last. This approach would then say that there
is no justification, when another route is available to ensure that
reasons are given, to resort to the extreme measure of setting aside a
decision which may well be correct simply because the official has
failed to give reasons for the decision or ruling.
[27] Another approach would be that the Court must never set aside a
decision simply because no reasons have been given for it and that, at
least, the Court should take the failure of the official to give reasons as
one of a number of factors relevant to the question whether or not an
adverse inference should be drawn from the official’s failure to furnish
reasons. Another approach would be to say that the court has a
discretion as to what role an official’s failure to give reasons for a
ruling must play when the Court considers the question whether or not
such a ruling must be reviewed and set aside.
[28] I prefer the approach that there should be no fixed and rigid rule of
what role should be played by an official’s failure to give reasons for
his ruling or decision when a court considers an application to review
and set aside such a ruling or decision. Each case must be considered
in the light of its own circumstances. The court should not be quick to
set aside a decision simply because no reasons have been given for it.
There may, however, be room for the court to review and set aside
such a decision where, apart from the fact that no reasons have been
given for it, the court thinks that, having regard to the material that
was before the official, it was more likely that no good reasons can be
found for such a ruling than that there are such reasons which can
possibly be advanced. There may be a case where, if the court has
regard to the material that was before the official, the court is able to
say there exists one or more reasons which justify the view that such
decision should be allowed to stand. In that case I cannot see why such
a decision should be set aside; in fact there is every reason why it
should stand despite the fact that the public official concerned did not
give reasons for it. What weight, if any, the court gives to the public
official’s failure to give reasons must be left to the court to be dealt
with in the light of the particurlar case before the court and bearing in
mind the purpose of sec 33(1) read with (2) of the Constitution.
[29] In this case the matter must be decided on the basis that, before the
first respondent decided the issue of legal representation, his attention
was drawn to the matters set out in sec 140(1) of the Act, that he
invited argument and he considered those matters and then decided
that the applicant would not be permitted to be represented by a legal
practitioner. In the result I conclude that there is no basis for setting
aside the first respondent’s ruling on legal representation or the award
on their basis advanced.
[30] The second ground on which the first respondent’s award was attacked
is that the applicant’s representatives at the arbitration hearings
“formed the impression that the arbitrator lacked impartiality”. It
was submitted that the test propounded in BTR Industries South
Africa (Pty) Ltd & Others v MAWU & Another 1992 (3) SA 673
(A) at 693 IJ and Moch v Nedtravel (Pty) Ltd t/a American
Express Travel Service 1996 (3) SA 1 (A) at 8HI had been satisfied
in this case
[31] As stated in the cases referred to above, the test for bias is the
existence of a reasonable suspicion of bias. The question therefore is
whether, on the facts on which the applicant relies, it can be said that
the applicant’s representatives at the arbitration proceedings developed
a reasonable suspicion of bias on the part of the first respondent. The
suspicion of bias or partiality must be one which might reasonably
have been entertained by a lay litigant in the circumstances of the
applicant. If such a suspicion could reasonably have been
apprehended, the test of disqualifying bias is satisfied. It is not
necessary to show that the apprehension is that of a real likelihood that
the first respondent would be biased or was biased.
[32] At this stage it is appropriate to have regard to the facts which the
applicant relies upon to say the test of disqualifying bias was satisfied
in this case. In approaching such facts the court has to bear in mind
that, in case there is a dispute of fact in relation to what occurred or
was said in the arbitration proceedings, the court must rely on the
respondents’ version unless the respondents’ version is quite clearly
untenable or inherently improbable.
[33] The allegations of fact on which the applicant relies in relation to this
ground of complaint are to be found in paragraphs 11.1 up to 11.7
(inclusive) of the applicant’s supplementary affidavit. In par 11.1 the
applicant says the manner in which the first respondent dealt with the
applicant’s application for legal representation as well as the manner
in which he reached his decision on its application for legal
representation gave the applicant the impression that he lacked
impartiality. When in par 11.1 the applicant refers to the manner in
which the first respondent dealt with its application and the manner in
which he reached his decision, it can only be referring to its
allegations in paragraphs 6.2, 6.3, 6.5, 6.6, 6.7 and 6.8. of its
supplementary affidavit. The second to fifth respondents’ answers to
those allegations are to be found in their answer at paragraphs 23 to 28
(inclusive). Essentially the allegations which could possibly be relied
upon by the applicant to show grounds for reasonable suspicion of bias
are placed in dispute. There would be no basis for saying the
respondents’ version on those allegations is clearly untenable or
inherently improbable so as to justify not relying on the respondents’
version.
[34] Both the allegation that the first respondent said that legal
representation was automatically precluded under the Act and the
allegation that, after considering the factors set out in sec 140(1), the
first respondent immediately refused legal representation without even
making enquiries about the attitude of the employee respondents’
representative to such application have been denied by the
respondents. The second up to the fifth respondents say the first
respondent called for argument on the issue and argument was
presented. That is the version which the court must rely upon in regard
to this part of the case. I have considered the applicant’s version in all
the paragraphs it relies upon in support of its contention that there was
a reasonable suspicion of bias and, in the light of the respondents’
denials and version on the happenings at the arbitration, I conclude
that the test for disqualifying bias has not been satisfied. Accordingly
the court cannot uphold the applicant’s contention in this regard.
[35] A further ground on which the applicant attacked the first respondent’s
award was that the first respondent excluded certain evidence which
the applicant wanted to lead at the arbitration. It says that such conduct
on the part of the first respondent constituted a gross irregularity in the
proceedings justifying the setting aside of the award. The evidence
which the applicant says was excluded relates to a video footage as
well as the evidence of certain witnesses. I begin with the exclusion of
the video footage evidence. The fifth respondent denied under cross
examination that he had been at the gate of the applicant with other
strikers on the 17th February 1997. The 17th February was the day
before the day of the assault on Mr Limphoko. The issue before the
first respondent was whether it was the third to the fifth respondents
who had assaulted Mr Limphoko on the 18 th February 1997. The
reason why the applicant sought to lead such video footage evidence
was that such evidence was going to show that, contrary to the fifth
respondent’s evidence, he was present at the applicant’s gate on the
17th February. The applicant believed that such evidence was relevant
to the issue of the fifth respondent’s credibility because the latter had
testified that he was not there. The first respondent refused to allow
the applicant’s representative to lead such video footage evidence to
contradict the fifth respondent’s answer that he was not at the gate of
the applicant’s premises on the 17th February 1997. The first
respondent did not give his reasons for this ruling in his award.
However, a reading of the transcript on this issue makes it crystal clear
that he regarded it as irrelevant.
[36] The applicant’s complaint in this court on this issue is that the first
respondent’s ruling was such as to prevent the applicant’s case from
being fairly determined. The second to the fifth respondents dispute
this and contend that the first respondent was right in regarding such
evidence as irrelevant.
[37] In the course of consideration of my judgement in this matter and
particularly on this issue, it occurred that there might be room for
argument that whether or not the fifth respondent was present at the
gate with other strikers on the day preceding the day of the assault
could well be said to be a collateral issue which was only relevant to
the credibility of the fifth respondent as a witness in which case the
rule that a witness’ answer on such an issue when he is cross
examined is final and may not be contradicted could be applicable. I
therefore invited argument on this from both Counsel as this had not
been argued at the hearing of the matter.
[38] Counsel subsequently submitted their argument by way of
supplementary heads of argument. Mr Franklin stands by his
submission that the evidence in question was relevant to the issue
whether the fifth respondent was present at the applicant’s gate on the
18th February and thereafter at the scene of the assault.
[39] Mr Franklin’s argument is that, if it can be shown that the fifth
respondent was “dishonestly denying his presence at the premises
on the 17th February . . the inference could properly be drawn
that he was lying too about his absence from the premises on 18th
February . .” . Mr Franklin adds that this must be seen against the
background that Mr Limphoko had given evidence to the effect that he
had been assaulted on the 17th February as well. I have gone back to
the transcript of Mr Limphoko’s evidence and I do not think that he
gave such evidence. What Mr Limphoko appears to have said is that
some worker had approached him on the 17th February and, after
telling him to keep the truck he was using clean, stated that he did not
think that Mr Limphoko would “get far” with that truck and that
trucks should stay in the yard and not go out.
[40] The first question is whether or not evidence tending to show that the
fifth respondent was present at the applicant’s gate on the 17th
February is relevant to the issue the first respondent was called upon
to decide. In R v Katz 1946 AD 71 at 78 Watermeyer CJ had the
following to say on the word “relevant : “The word relevant means
that any two facts to which it is applied are so related to each
other that according to the common course of events one, either
taken by itself, or in connection with other facts, proves or renders
probable the past, present or future existence or nonexistence of
the other”.
[41] Initially I did not think that that the fifth respondent was present at the
gate on the 17th February, assuming that he was, would, either taken
by itself or taken in conjunction with any other facts in the case, either
prove that the fifth respondent must also have been at the gate on the
18th February nor did I think that it would have made it more probable
that he was. However, after considering the issue carefully, I have
come to the conclusion that it is relevant to the issue the first
respondent was called upon to decide in relation to the fifth
respondent. The basis for its relevance is par 8.2 of the applicant’s
supplementary affidavit and fifth respondent’s answer thereto. In par
8.2 the applicant says the fifth respondent’s evidence was that he was
not at the applicant’s gate on both the 17th and 18th February and the
reson why he was not there was that he took ill “on the 17 and 18
February”. The respondents admit this paragraph in their answer to
par 8.2. This means that the reason for the fifth respondent’s absence
for both the 17th and 18th is one and the same reason, namely, that he
was sick on those two days. If, therefore, the applicant’s video footage
evidence were to show that the fifth respondent was at the gate on the
17th February, that evidence would go to the very heart of the fifth
respondent’s defence. Let us assume that in the video the fifth
respondent is shown singing at the top of his voice and engaged very
actively in toitoying. It seems to me that, in those circumstances, it
would be difficult to accept his evidence that he was ill on the 17th
and, therefore, on the 18th as well; in fact not much would be left of
his defence. I therefore conclude that the video footage evidence the
applicant wanted to lead was relevant in so far as the fifth respondent
was concerned. Accordingly the first respondent’s decision in not
allowing it constituted a gross irregularity in regard to the case against
the fifth respondent or precluded the applicant’s case from being fully
and fairly determined.
[42] The other exclusion of evidence which the applicant complains about
is that the fourth respondent was not allowed by the first respondent
to call five witnesses whom he wanted to call to corroborate his
version that he was at home on the day of the alleged assault. The
applicant’s complaint is that by reason of the fourth respondent not
being allowed to call these witnesses, it (i.e. the applicant)was
prevented from crossexamining them and, therefore, it was prevented
from having its case fully and fairly determined. This complaint has
no merit. If anybody has a right to complain about being prevented
from having his case fully and fairly determined, that would have been
the fourth respondent. Not the applicant. In fact the applicant should
be happy that such witnesses were not called because, for all we know,
there is no basis for saying if they had been called, they would not
have said what the fourth respondent hoped they would say. At any
rate the applicant was free at any stage to seek particulars of such
witnesses and call them as its witnesses if it thought their evidence
would assist its case. It did not take any steps to secure them.
Accordingly I am of the view that in so far as the first respondent’s
not allowing the fourth respondent to call such witnesses may have
been an irregularity, it is not an irregularity that prejudiced the
applicant. A party which relies on an irregularity to seek a review must
show that such irregularity was prejudicial to itself. A Court cannot
interfere in proceedings of a tribunal such as the CCMA on the
grounds of an irregularity which is only of academic interest.
[43] The other complaint by the applicant is that the first respondent
refused to admit minutes of the disciplinary and the appeal hearing
with which the applicant sought to demonstrate that there was
inconsistency between the evidence given in the disciplinary inquiry
by the third respondent and the evidence he was giving at the
arbitration. The first respondent stated that it was not necessary to
listen to the tapes relating to the disciplinary inquiryand the appeal.
The applicant wanted to demonstrate inconsistency in the version of
the third respondent given at the disciplinary inquiry and the version
given at the arbitration. The first respondent said the minutes or tapes
were not material. In this regard I am of the opinion that the first
respondent commited a gross irregularity or made a ruling which
precluded the applicant’s case from being fairly determined. This was
a case where the issue of credibility was going to play an important
role and, if the applicant sought to introduce evidence that was going
to show that the respondents were giving versions which were
different from those they had given at the disciplinary inquiry, such
evidence should have been admitted provided, of course, that the
applicant went about introducing it in a manner acceptable in law
unless the first respondent relaxed procedural requirements for its
admission in the exercise of his powers under sec 138(1) of the Act.
[44] I think the case about whether or not the third, fourth and fifth
respondents assaulted Mr Limphoko is, in the light of their defences as
well as their evidence, of such a nature that fairness dictates that,
bearing in mind the nature of the gross irregularities committed, the
entire proceedings should be set aside rather than that the award
should be set aside in so far as it may relate to one or other of the
employee respondents. In those circumstances the order I make is the
following :
(1)The arbitration award issued by the first respondent in the dismissal
dispute between the applicant and the second upto the fifth
respondents is hereby reviewed and set aside.
(2)The dismissal dispute referred to in (1) above is hereby remitted to
the CCMA to be arbitrated by a Commissioner other than the first
respondent.
(3)The second, third, Fourth and fifth respondents are ordered to pay
the applicant’s costs jointly and severally, the one paying the other to
be absolved.
R. M. M. ZONDO
Judge of the Labour Court of South Africa
Date of Argument : 30 September 1998
Date of Judgement : 09 February 1999
: Mr A. Franklin
: Webber Wentzel Bowens
For the Second to Fifth Respondents : Mrs E. Menell
: Mlambo & Modise Attorneys