IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number: J 2825/98
In the matter between
J OOSTHUYZEN Applicant
and
TURBO SERVICES PRETORIA CC Respondent
JUDGMENT
WAGLAY A J
1 In this matter the Applicant applied in terms of s 158 (1) (c)
of the Act to make the arbitration award made by the
Commission for Conciliation Mediation and Arbitration
(CCMA) on 29 July 1998 an order of this Court.
2 The Respondent opposes this application on the grounds
that Applicant secured the award as a result of fraudulent
evidence presented to the Commissioner. Respondent thus
seeks to rescind the arbitration award alternatively to refer
the matter to the CCMA for recission or further
alternatively for this Court to review and set aside the said
award.
3 Respondent argued that notwithstanding s 144 of the Act
this Court by virtue of its inherent jurisdiction is entitled to
rescind the award of the CCMA and relies on the decision
of Landman A J as he then was in the matter of Deutsch v
Pinto and another [1997] 18 ILJ 1008 [LC] at 1015 A where
the Court held under the heading of “ The common law
power of recission” that
“Another supervisory power which this Court probably has is to be found
in the inherent jurisdiction of this Court, which is a superior Court having
inherent jurisdiction. It has the power to rescind an order of a tribunal
subject to its jurisdiction at least on the grounds of fraud.”
4 The fraud that the Respondent states Applicant committed
as stated earlier was that the evidence Applicant presented
at the arbitration was false.
5 According to the Respondent the Applicant was contracted
by it as an independent contractor as a sales / marketing
representative from 1 September 1997 and earned an
amount of R 2000.00 per month plus a commission in
respect of business introduced by the Applicant. Further no
PAYE or tax was deducted from his salary and that
Respondent exercised no control over the Applicant and
Applicant could perform the work as he saw fit.
6 In October of the same year Respondent employed the
Applicant on a fixed term contract as a site foreman on a
specific project the completion date of which was
anticipated to be either the end of November or December
of 1997.
7 Respondent further states that Applicants services as an
independent contractor ended when he was given the fixed
term contract and that it was not going to be renewed once
the fixed term contract had ended.
8 Applicant in response thereto denied that he was employed
as an independent contractor but as an employee in a sales /
marketing representative capacity and that as and from 1
September 1997 he was employed as a site foreman by the
Respondent not on a fixed term contract but on a full time
basis.
9 Respondent was not present during the arbitration at the
CCMA and the only evidence presented to the
Commissioner was that of the Applicant. The
Commissioner under the heading “ Background to the
Issue” records
“The employee started working for the employer on 1 September 1997 as
a representative earning R 2000.00 and 10% commission per month. One
of the foreman on the Gromer farm was dismissed in October 1997 and
the employee was asked to go and work on the farm until the specific
project was finished for R 4000.00 per month. The work entailed
sandblasting and painting of tiles. This was a temporary arrangement and
he would have resumed his normal duties in January 1998.”
Under the heading of “Award” the commissioner records under paragraph (a)
“... Although it is common cause that the employee would have started
working as a representative again in January 1998 for R 2000.00 plus
10% commission ... ”
10 From this it is clear that the evidence which the Applicant
presented at the arbitration was that his appointment as a
site foreman was a temporary one or for a fixed period
“until the specific project was finished”, and after the
project was completed which he expected to be by the end
of December 1997 he would revert to his position as a
sales / marketing representative for the Respondent.
11 The Applicant’s statement in his affidavit headed replying
affidavit is clearly in conflict with the evidence he tendered
at the arbitration, in that while his evidence at the
arbitration had been that his appointment as a site foreman
was of limited duration, in response to Respondent’s
allegation to the same effect Applicant states in paragraph 3
of his affidavit aforesaid that
“ ... After one Pieter Lingerfelder was dismissed by Respondent it was agreed
between me and respondent that I am appointed as site foreman on the Gromer
Farm. The anticipated completion date of the project was not at the end of
November or middle December. It was not even discussed. The Respondent was
to close down for the holidays and I was to resume my normal duties in January
as site foreman at Gromer Farm. My salary was R 4000.00 (four thousand rand)
per month.
(emphasis added)
The Applicant again in paragraph 5.1 of the affidavit states
“ ... I was an employee when I was appointed as sales / marketing representative.
I deny that the Gromer Farm work was completed and I deny I was appointed on
an ad hoc basis ...”
(emphasis added)
12 While normally I would be obliged to accept the version of
the Applicant given the fact that his affidavit to
Respondents application constituted an answering affidavit
I cannot do so because of the obvious conflict between what
is stated in his affidavit and the evidence he tendered at the
arbitration. In the circumstances I reject the averments
made by the Applicant as it is not for me to accept one or
the other of his versions.
13 Having rejected the Applicant’s version the only evidence
before me is that of the Respondent. This I must accept and
in doing so the only conclusion I can arrive at is that the
Applicant deliberately and wilfully made incorrect
statements at the arbitration and as such committed fraud.
While I do not express any opinion on whether the
Commissioner would have arrived at any different award
had he been presented the version Applicant has placed
before this court on affidavit, that is not a decision I have to
make. The fact is that on the version of the Respondent
which is in effect the only one before me the Commissioner
would have arrived at a different decision. This I believe
constitutes sufficient ground to grant the Respondent a
recission so that both parties in so far as they may wish to
continue with the matter can present their cases to the
Commissioner for him to decide on the fairness or
unfairness of the dismissal or whether or not there was a
dismissal at all.
14 In terms of the inherent jurisdiction of this Court as
provided for in s 151 (2) this Court I believe this court is
entitled to rescind the award granted by the CCMA.
15 I am also mindful of the fact that Applicant’s behaviour in
failing to attend the arbitration proceedings border on
contempt of the CCMA, the reasons provided by it for its
failure to attend the arbitration are not acceptable to this
Court. But for the fraud the Applicant’s application for
rescission would not have succeeded.
16 Finally I have taken the Respondent’s conduct in failing to
attend the arbitration into account in determining whether or
not on the basis of law and equity an order for costs should
be granted.
17 In the result I order that:
1. The arbitration award made by Commissioner H Bendeman under the
auspices of the CCMA dated 29 July 1998 under CCMA case number GA 30340
is hereby rescinded
2. the Applicant may apply to the CCMA for the matter to be set down for
arbitration afresh
3. there is no order as to costs.
B WAGLAY
Acting Judge of the Labour Court of South Africa.
SIGNED AND DATED THIS 14th DAY OF May 1999.