IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: J3103/98
In the matter between:
THEMBA MTSHALI Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Respondents
JUDGMENT
MARCUS A J:
INTRODUCTION:
I. This matter has a complicated history. In various
forms it has come before three judges of the Labour
Court and has been the subject of two hearings before
the Commission for Conciliation, Mediation and
Arbitration ("CCMA").
II. The applicant, to whom I shall refer as “the
employee”, was formerly employed by the Greater
Johannesburg Transitional Metropolitan Council ("the
Council"). A dispute concerning the dismissal of the
employee was referred to the CCMA. On 12 October 1998,
the second respondent (“the Commissioner”) issued an
arbitration award in terms of which the employee was
reinstated in his employment with the Council. The
dispute giving rise to this award, to which I shall
refer as “the original award”, is not presently
germane. It suffices to say that the employee claims
he was constructively dismissed. The Council claims he
resigned. The dispute was only referred to the CCMA on
10 July 1998, some seven months after the alleged
dismissal. On that date, the matter was heard in the
absence of the Council.
III. In the original award the Commissioner found that
on the undisputed evidence before her, the Council
forced the employee to resign by deploying him in a
department where it was known that he had experienced
difficulties with his superiors. These difficulties had
led to his resignation and the employee was held to
have been constructively dismissed.
IV. The employee applied to the Labour Court to have
the original award made an order of court. The
application was heard by Grogan AJ on 18 December 1998.
The order was granted.
V. The Council thereafter applied to have the order
granted by Grogan AJ rescinded in terms of section 165
of the Labour Relations Act 66 of 1995 (“the Act”).
The matter came before Revelas J who, after a careful
analysis of the facts, concluded that the order of
Grogan AJ had been erroneously granted in the absence
of the Council and should accordingly be rescinded.
The order of rescission was granted on 12 March 1999.
VI. At the arbitration hearing which took place in the
absence of the Council, the Commissioner was at pains
to point out that the possibility of rescission loomed
large. According to the transcript of that hearing,
the Commissioner explained to the employee that because
the matter was being heard in the absence of the
Council, it was possible that the Council may apply for
rescission. The Commissioner emphasized this fact. She
stated the following:
"You need to be aware, Mr Mtshali, that the
Municipality may bring a rescission which means we may
have to meet again and hear both sides of the story."
VII. Fortified by the judgment of Revelas J, the
Council applied to the CCMA for rescission of the
original award. The matter was heard by the same
Commissioner on 15 March 1999. On 18 March 1999, the
Commissioner rescinded the original award. She
reasoned as follows:
"BACKGROUND:
The case was initially heard on the 12th of October
1998. A default award was given as the respondent
party did not arrive and it appeared from the papers
that they had been notified. Condonation was granted
in this award. The employee party subsequently made
the award an order of court. This was set aside by the
court and referred to the CCMA for rescission as it
appeared that there had been no proper service. The
rescission application was heard on the 15th of March
1999. Mr Mtshali, the employee, represented himself
and Mr Van Tonder, the legal officer of the Council
represented the Greater Metropolitan Council.
RESCISSION:
Mr Mtshali argued that he served the documents on the
Town Clerk who mislaid them and he should not be
prejudiced for this. Moreover, he argued that he did
not know the correct person on whom to serve the
documents as he was no longer working at the Council.
He stated that he did contact various people to find
out where he should serve the documents but he kept
being referred to different places. Mr Mtshali argued
that he exhausted all relevant channels. He stated
that he served the documents where he collected his
last payment from the Council being Diepmeadow. Mr Van
Tonder argued that the Council's postal address is in
Braamfontein. He stated that the fax and telephone
numbers were incorrect. Mr Van Tonder argued that Mr
Mtshali, who had worked for the Council for 10 years,
knew whom to contact and neglected to choose an address
that was not the Johannesburg Council's. Mr Van Tonder
argued that as the referral was deficient the award be
rescinded in terms of section 144 of the Labour
Relations Act, 65 of 1995.
RULING:
The underlying reason that the Labour Relations Act,
Form 7.11, requests that the employee notify the
employer is to make sure that both parties are aware of
a dispute and the grounds for such a dispute. The
principle underlying this procedure is the audi alteram
partem rule which means that in a dispute in order for
there to be justice and equity, both sides must be
heard. In this case the respondent was never notified
and consequently did not attend either the mediation or
the arbitration. Therefore both sides were not heard
and the audi alteram partem rule was not fulfilled. It
is apparent from the argument and the accompanying
affidavits that an error in service has occurred. In
order for justice and equity to prevail the award
issued on the 12th of October is rescinded in terms of
section 144 of the Act.
POINT IN LIMINE :
The next issue that was raised was condonation.
Certain factors are taken into account when considering
condonation. These are the degree of lateness, the
reason for the latereferral, prospects of success and
the prejudice to the parties. Condonation was heard on
the affidavits and in arguments.
DEGREE OF LATENESS :
The dispute arose on the 13th of December 1997 and the
case was referred to the CCMA on the 10th of July
1998. This is a substantial delay of about five months
and 28 days.
REASONS FOR LATEREFERRAL :
The employee stated that the reason why the dispute was
so late is that he had handed his case to certain
business in Soweto which was posing as the CCMA. He
stated that these individuals kept pushing him off by
telling him that they were attempting to liaise with
his employer. Mr Mtshali stated that he often
approached them. After some time had passed he went to
the bargaining council. They then referred him to the
CCMA. A letter was sent to the CCMA on the 10th of
July 1998 confirming that they (the bargaining council)
had no jurisdiction in the matter. Mr Van Tonder
argued that given Mr Mtshali's intelligence and
experience that the above was an unreasonable
explanation as he had knowledge of the procedures to be
followed as set down in the Labour Relations Act.
This, he argued, could be shown from Mr Mtshali's
initiative to make the initial award an order of court.
PROSPECTS OF SUCCESS :
Mr Mtshali stated that he had worked for the Council
since 1990. He stated that he had been assaulted in
1990 and that he was then transferred to various
departments and Councils which resolved the issue. Mr
Mtshali stated that with the deployment of the
Metropolitan Councils into Substructures he was due to
be transferred into the same department where the
initial problem occurred. He stated that he did object
and when nothing could be done, he resigned. Mr Van
Tonder argued that Mr Mtshali, as he had been in the
employ of the organisation for some time, was aware of
the disciplinary structures. He stated that he was not
aware that Mr Mtshali made use of any of the grievance
procedures or had approached the dispute committee with
an objection about his employment.
PREJUDICE TO THE PARTIES :
Mr Van Tonder argued that if the issue in dispute went
back until 1990, it would be extremely difficult to
find the people involved in reconstructing events. He
further stated that some of the individuals involved
had left the employ of the organisation. Further, one
of the key individuals was deceased. He argued that it
would prejudice the employer party if the condonation
was granted.
FINDING:
Using a holistic approach, all factors are taken into consideration. Mr Mtshali's
explanation as to why the referral was so late was vague and improbable and he
could not produce any evidence as to the existence of these alleged consultants.
The prospects on the facts appears slim. It appears that Mr Mtshali resigned
because his request could not be accommodated. The inference is then that he
resigned because the situation did not suit him anymore and was therefore
voluntary. It appears that the prejudice to the respondent party outweighs the
prejudice to the employee party in terms of the fact that certain witnesses no
longer are employed at the Company and one of the individuals involved is
deceased. To expect the employer party to recreate evidence of an event that
occurred a number of years ago, is to expect the impossible.
For the above reasons, coupled with the degree of lateness, which is excessive, I
cannot condone the latereferral of the case and therefore dismiss the
application."
I shall refer to this award as “the rescission award.”
VIII. In the matter presently before me the
employee seeks to review the Commissioner’s refusal to
condone the latereferral of the dispute. This was not
how the relief was originally formulated. The failure
to formulate the relief sought correctly is immaterial and has
occasioned no prejudice. The matter will be dealt with in terms of the notice of
motion as amended.
IX. It seems that the principal ground of review
relied upon by the employee is that the question of
condonation was decided in his favour by the
Commissioner in the original award. In the original
award the Commissioner dealt with condonation on the
following basis:
"Condonation: The dispute arose in December 1997 and
was referred to the CCMA on the 10th of July 1998. The
matter is approximately seven months out of time. The
applicant stated that the reason he was out of time is
that he approached a business in Soweto that pretended
to be the CCMA. He stated that he was then sent to the
bargaining council and the council then referred him to
the CCMA who informed him that they do not employ
subconsultants. I find that the applicant's reason for
latefiling is acceptable and condonation is granted.
The Company did not appear at arbitration and had
therefore waived their rights."
X. As already indicated, the Commissioner did not at
that stage, have the benefit of argument or evidence
from the Council. However, she made it clear that it
was possible that the Council may seek rescission of
the original award.
I.
XI. The first issue which requires consideration is
whether it was open to the Commissioner to reconsider
the question of condonation when the matter came before
her for purposes of rescission or whether she was
"bound" by her original decision. The employee, who
appeared in person before me, placed this at the centre
of his argument. The essence of his contention is that
once having found in his favour, the Commissioner was
thereafter bound to find in his favour a second time.
XII. Applications for the rescission of arbitration
awards are governed by section 144 of the Act which
provides:
"Any Commissioner who has issued an arbitration award,
acting of the Commissioner's own accord or, on the
application of any affected party, may vary or rescind
an arbitration award
(a) erroneously sought or erroneously made in the
absence of any party affected by that award;
(b) in which there is an ambiguity or an obvious error
or omission but only to the extent of that ambiguity,
error or omission; or
(c) granted as a result of a mistake common to the
parties to the proceedings."
XIII. It is quite clear that a Commissioner may
reconsider an award "erroneously sought or erroneously
made in the absence of any party affected by that
award". In this respect the CCMA differs from many
other statutory bodies which, in the absence of a
specific power of reconsideration, are not ordinarily
entitled to reopen decisions once made. There is
authority for the proposition that once a statutory
body makes a decision, it thereafter becomes functus
officio (See, for example, Minister of Agricultural
Economics & Marketing v Virginia Cheese and Food Co.
(1941) (Pty) Ltd , 1961 (4) SA 415(T) and Durban City
Council v Local Road Transportation Board , 1964 (3) SA
244(D). However, the matter is not entirely free from
doubt. See the comments of Jansen, JA in Transair
(Pty) Ltd v National Transport Commission & Another ,
1977 (3) SA 784(A) at 792A793H).
XIV. Under section 144 of the Act, a Commissioner is
given the express power to vary or rescind an award
already given. In this respect, the Commissioner
enjoys powers the equivalent of those conferred on the
High Court by Rule 42 of the Uniform Rules of the High
Court.
XV. Where an award is wrongly made in the absence of
an affected party, it is particularly appropriate that
the matter be considered afresh with the full benefit
of evidence and arguments not previously available. The
audi alteram partem rule is designed to facilitate
informed decision making. In the words of Milne JA in
South African Roads Board v Johannesburg City Council ,
1991 (4) SA 1(A) at 13BC, the rule has a twofold
effect:
"It satisfies the individual’s desire to be heard
before he is adversely affected; and it provides an
opportunity for the repository of the power to acquire
information which may be pertinent to the just and
proper exercise of the power."
XVI. In this regard it is also apposite to refer to
Administrator Tvl & Others v Zenzile & Others , 1991 (1)
SA 21(A) in which Hoexter JA at 37E quoted with
approval the following observation by Megarry J in John
v Rees [1970] Ch 345 at 402:
I. "As everybody who has anything to do with the law
well knows, the path of the law is strewn with examples
of open and shut cases which, somehow, were not; of
unanswerable charges which, in the event, were
completely answered; of inexplicable conduct which was
fully explained; of fixed and unalterable
determinations that, by discussion, suffered a change."
XVII. The centrality of the audi alteram partem
rule is underscored by the fact that at common law the
failure to afford a hearing in circumstances where one
is required, renders the decision invalid (See Momomiat
v Minister of Law and Order , 1986 (2) SA 264(T) at
274D; Attorney General Eastern Cape v Blom , 1988 (4)
SA 645(A) at 669J and 658HI; Administrator Tvl &
Others v Zenzile & Others (supra), at 28H I, 37CF and
40AB).
XVIII. I am accordingly of the view that the
Commissioner was not only entitled to consider the
question of condonation afresh, but was obliged to do
so in the light of the evidence and argument duly
presented to her. After Revelas J had rescinded the
order granted by Grogan AJ, it would have been
competent for her to have directed that the matter be
heard by a new Commissioner. There was nothing to
suggest, however, that the matter should not be heard
by the same Commissioner. I am not unmindful of the
obvious frustration which this has engendered in the
employee. Indeed, given the turns and twists that this
particular matter has taken, he may be forgiven for his
obvious bewilderment at these processes.
XIX. Having regard to the reasons furnished by the
Commissioner in the rescission award, I am unable to
decern any misdirection or error on her part. The test
for review under section 145 of the Act is now settled
by the decision of the Labour Appeal Court in Carephone
(Pty) Ltd v Marcus NO & Others (1988) 19 ILJ 1425
(LAC). The question that must be posed is whether
there is "a rational objective basis justifying the
connection made by the administrative decision maker
between the material properly available to him and the
conclusion he or she eventually arrived at" (at 1435E
F). In my view the reasons furnished by the
Commissioner satisfy the constitutional standard of
justifiability. It is quite clear that the
Commissioner was alive to the factors relevant to
condonation (see Melane v Santam Insurance Co. Ltd 1962
(6) SA 531 (A)). It is equally clear that these
factors were appropriately weighed and considered. The
employee did not seriously attack the reasoning of the
Commissioner. His principal complaint was that she
changed her mind when the matter came before her a
second time.
XX. The enquiry for present purposes does not end with
a consideration of the Commissioner's reasons for
refusing condonation. This is so because in the
affidavit filed in the present proceedings, the
employee seeks to adduce further reasons to explain his
delay. These are not easy to fathom but in essence
amount to the following: He states that he approached
George Sithlabani about his case. He states further
that those who were assisting him with his case
approached one Shumi Khotu who delayed the process.
Thereafter one Izak Moweshe also delayed the process
and, once again thereafter, one Anne van Tonder failed
to take the process further.
XXI. At the second hearing before the Commissioner, the
employee was given every opportunity to explain the
reasons for his delay. The Commissioner explained to
the employee that she was hearing the condonation
application afresh and that it was therefore necessary
for him once again to give his reasons for the late
referral. After the employee had furnished his reasons
for the late referral, the Commissioner asked him
whether there was anything else he would like to add.
The employee answered in the negative.
XXII. Mr Beckenstrater, who appeared on behalf of
the Council, rightly submits that no criticism can be
directed at the Commissioner for failing to take into
account factors not placed before her by the employee
and which fall within his exclusive knowledge. In
Carephone (Pty) Ltd v Marcus NO & Others (supra) the
Labour Appeal Court was careful to stipulate that the
enquiry into the justifiability of a decision required
objective scrutiny of the material "properly available"
to the arbitrator. The new evidence sought to be
adduced in the present proceedings was not properly
available to the Commissioner. I have grave
reservations about the competence of a court of review
to entertain evidence that was never placed before a
Commissioner (cf Loxton v Kenhardt Liquor Licensing
Board 1942 AD 275 at 293).
XXIII. Even it were open to this court to consider
evidence not placed before the Commissioner, it would
have to be accompanied by a satisfactory explanation as
to why it was not tendered in the first place. It is
conceivable that a court of review, may have the power
to receive fresh evidence by reason of its inherent
powers and equitable jurisdiction (See section 151 of
the Act, as amended by section 11 of Act 127 of 1998).
Were this possible, it would at least have to satisfy
the long established requirements for receiving fresh
evidence on appeal. Wessels CJ in Colman v Dunbar ,
1933 AD 141 laid down certain guidelines for receiving
fresh evidence on appeal at 160162:
I. "That this court can hear further evidence itself
or remit the case to the court a quo to hear further
evidence is beyond doubt; but in the words of Innes,
CJ in Shein'scase, (1912 AD at p428), 'it is clear the
court should be very chary of admitting fresh evidence
after a case has been tried more especially upon points
which have been contested and decided at the trial.
The danger of sanctioning such a course save under
exceptional circumstances is manifest'. To do so may
often open the door to fraud and would offer a strong
temptation to perjury .... We ought only to do so
'where special grounds exist and where it is clear that
such a course would not unfairly prejudice the other
side and would enable the court to do justice between
the parties' (per Innes ACJ loc cit). It is impossible
to lay down definite rules when such an application
will be allowed and when not, but we may adopt certain
guiding principles upon which such applications may be
granted.
1. It is essential that there should be finality to a
trial and therefore if a suitor elects to stand by the
evidence which he adduces, he should not be allowed to
adduce further evidence except in exceptional
circumstances. To allow fresh evidence on a point
which calls in question evidence already lead, would
necessitate a rehearing of the witnesses whose evidence
is questioned so as to give them an opportunity of
answering the fresh evidence. This means that the case
would be largely reopened which militates against
finality ( Shein's case at p429).
2. The party who makes the application 'must show
that the fact that he had not brought it forward, was
not owing to any remissness on his part (per Collins LJ
in Young v Kershaw 16 TLR 52,54). He must satisfy the
court that he could not have got this evidence if he
had used reasonable diligence.' ...
3. The evidence tendered must be weighty and material
and presumably to be believed and must be such that if
adduced, it would be practically conclusive for if not,
it would still leave the issue in doubt and
the matter would still lack finality. It is not enough
that the fresh evidence merely corroborates
evidence which has been investigated and rejected. It
must go further. In the words of Vaughan Williams, J
in Warham v Selfridge & Co (30 TLR 344,345), 'in order
to justify the granting of a new trial on the ground
that fresh evidence had been discovered, this evidence
must be of such a character as to justify one in saying
that the verdict could not, in the interest of justice,
be relied on because it was based on mistake, surprise
or fraud' ....
4. If the conditions have so changed that the fresh
evidence will prejudice the opposite party, the court
will not grant the application ( Shein's case (supra)).
Thus, if the witnesses of the opposite party have been
scattered and cannot be brought back to refute the
fresh evidence or to explain their own evidence in the
light of the fresh evidence, the court will not grant
the application."
XXIV. Even if it were open to me to consider the
fresh evidence, it would not meet the requirements of
the second, third and fourth guiding principles
mentioned by Wessels CJ. A similar approach to the
receipt of fresh evidence is adopted in English law.
(See Ladd v Marshall [1956] 3 All ER 265 (CA) at 768
and Stone v Stone [1971] 2 All ER 582 (HL) at 586.)
XXV. I am accordingly of the view that the
Commissioner's reasons for refusing of condonation for
the latereferral of the dispute are justifiable.
XXVI. I should emphasize that my task is one of
review and not appeal. (See Carephone (Pty) Ltd v
Marcus NO & Others (supra) at 1434D). Views may
legitimately differ over the acceptability of a
particular period of delay. That is beside the point.
My task is to scrutinise the reasons furnished against
the standard of justifiability. That standard has been
met in this case.
XXVII. In the light of this conclusion it is not
necessary for me to consider the other issues raised by
the employee. I should mention, however, that the
Commissioner also found that the employee's prospects
of success were slim. There was no real challenge to
this finding by the employee.
XXVIII. In the circumstances the application is
dismissed. Each party is to pay its own costs.
__________________
G.J. Marcus
Acting Judge of the Labour Court
Date of hearing: 3 June 1999
Date of judgment: 3 June 1999
For the Applicant:In person
For the Respondent:Mr C Beckenstrater of Moodie and
Robertson