IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J1009/98
In the matter between :
MORGAN FASHIONS SA (PTY) LIMITED Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
KIDIBONE QUEEN MOHLANGA Second Respondent
SUSAN HARRIS Third Respondent
JUDGMENT
1 In response to an application by the second respondent (“the employee”) to
have an arbitration award delivered by the third respondent (“the Commissioner”)
made an order of Court, the applicant (“the Company”) instituted review
proceedings in terms of section 145 of the Labour Relations Act 66 of 1995 (“the
Act”) to have the award set aside.
2 On 10 September 1997, the employee was dismissed by the employer pursuant
to charges against her relating to work performance. A dispute concerning the
fairness of the dismissal was referred to the CCMA. The Commissioner found
that the dismissal of the employee was substantively unfair and ordered the
Company to pay the employee an amount of R18 000.00 within thirty days of the
date of the award.
3 The arbitration award was delivered on 15 March 1998. The notice of
motion initiating the application for review is dated 28 May 1998. It was served
without any supporting affidavit. A supporting affidavit was signed on 25 June
1998. Even if one takes the date on which the notice of motion was signed,
namely 28 May 1998, the review has not been instituted within the six week
period stipulated in section 145 of the Act.
4 Whether or not the failure to institute review proceedings within the six week
period stipulated in section 145 of the Act may be condoned, is the subject of
competing decisions. In Kruger & Ano v McGregor N.O. & Ano (Labour
Court, Case No. J123/99, 18 June 1999, unreported) I held that such failure was
subject to condonation. In the present case, however, there is no application for
condonation before me.
5 The absence of an application for condonation is not the only procedural
shortcoming in the present matter. No heads of argument have been filed by the
Company as required by paragraph 9.1 of Practice Direction 1 of 1998. Moreover,
the papers have not been prepared, paginated and indexed in accordance with the
requirements of paragraph 9.2 of Practice Direction 1 of 1998.
6 The Company is represented by an attorney in the present proceedings. No
acceptable explanation for the noncompliance with the Practice Direction has
been furnished. I was merely informed that the appearance on behalf of the
company was to resist the application to have the arbitration award made an order
of court. However, the very basis of that resistance rests on the application for
review.
7 Compliance with the Practice Directions is necessary for the efficient running
of this Court. The requirements relating to the proper preparation of papers in
opposed applications enables the judge allocated to hear the matter to read the
papers intelligently and to know what the case is about. Heads of argument
direct both the Court and the opposing parties to the issues in dispute and the
relevant case law.
8 In Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC) , the
Labour Appeal Court stated that “ failure by practitioners to file their heads of
argument timeously is becoming a problem ” in the Labour Appeal Court at
580 H. In the Labour Court, failure to file heads of argument timeously or at all
has become a chronic problem. It hinders the proper running of the courts and
places an undue and unfair burden on the court. Where parties are represented
by attorneys, it is appropriate that such conduct be subject to censure in the
absence of any acceptable explanation. Practitioners who appear in this Court are
expected to know the Rules and the Practice Directions.
9 While on the subject of noncompliance with the proper requirements of
procedure, it is appropriate that I mention the practice in some quarters of filing a
notice of motion initiating review proceedings unaccompanied by any supporting
affidavit. Section 145 of the Act empowers a party to “ apply to the Labour
Court for an order setting aside the arbitration award ”. The Rules of the
Labour Court deal generally with applications and specifically with applications
for review. The former is dealt with by Rule 7, the latter by Rule 7A which was
introduced with effect from 4 September 1998. Although Rule 7A was not in
force at the time that proceedings were instituted in the present matter, any
application must be supported by an affidavit. It is not sufficient merely to serve
a notice of motion.
10 It would be open to me to postpone the present matter at the Company’s cost
and to give it leave to file a substantive application for condonation for the late
noting of the review. To do so, however, merely shifts the burden to another
judge at another time. Despite all the procedural shortcomings, I have at least
read the papers. To postpone the matter would not be an appropriate use of
scarce judicial resources. I have accordingly decided to hear the matter on the
assumption that I can condone the failure to institute the review within the six
week period and on the further assumption that there is an acceptable reason for
the delay.
11 The founding affidavit in the review proceedings comprises two pages. It is
deposed to by Serge Glowiczower, the Managing Director of the Company. It
sets out the attempts by the Company to obtain the record of the proceedings
before the Commissioner. As at the date of signing the affidavit, namely, 25
June 1998, the applicant had still not received the documentation. The affidavit
then states:
“8 I submit that it is necessary for the applicant to obtain the
documentation ... in order to substantiate its concerns that the award made
by the third respondent does not reflect what transpired during the course of
the arbitration hearing under Case No. GA16312.
9 I submit that applicant’s case was based upon the poor work
performance and gross negligence of the second respondent. The third
respondent, in making her award, ignored the issue of gross negligence in its
entirety and failed to apply her mind to all the issues presented to her at the
said hearing. The award made by the third respondent ignores a substantial
portion of evidence presented by the applicant at the said arbitration
hearing.”
12 The test for review in terms of section 145 of the Act has been authoritatively
laid down by the Labour Appeal Court in Carephone (Pty) Ltd v Marcus N.O.
& Others (1998) 19 ILJ 1425 (LAC) . The question that must be asked is
whether there is “ a rational objective basis justifying the connection made by
the administrative decisionmaker between the material properly available to
him and the conclusion he or she eventually arrived at. ” at 1435 E.
13 The “grounds” of review advanced by the Company are stated in stark and
unsubstantiated terms. Although the Company’s standpoint was that it required
the record of proceedings in order to motivate the review, the Company was, at
least, in possession of the arbitration award. That award runs to some 11 pages
typed in single spacing. It is extremely detailed and, on the face of it, appears to
represent a careful and lucid analysis of all the issues in dispute. In the review
proceedings, however, there is no attempt whatsoever to analyse the award or to
point to any defect in reasoning, error of fact or error of law. The award reflects
a consideration by the Commissioner of the documentary evidence that was placed
before her.
14 Approximately a year has elapsed since the signing of the founding affidavit
in the review proceedings. The papers disclose no attempt by the Company to
compel the CCMA or the Commissioner to furnish such additional documentation
as the Company may require. Nor is there any explanation before me as to why
no such steps have been taken. On the papers before me, therefore, there is
simply no basis for the reviewing and setting aside of the arbitration award. In
the circumstances, the application for review is dismissed with costs.
15 There remains the application by the employee to have the arbitration award
made an order of Court. There is no appearance by or on behalf of the employee.
The notice of motion in that matter cites Serge Glowiczower as the respondent.
As indicated, the affidavit in support of the review proceedings was deposed to by
Mr Glowiczower who is the Managing Director of the Company. The arbitration
award, which the employee seeks to have made an order of court, clearly reflects
the correct name of the Company. The answer to the application to have the
arbitration award made an order of court is that Mr Glowiczower has been
wrongly cited as the respondent. He denies that the arbitration award was the
result of a dispute between him and the employee. This is nothing more than a
technical defence to an obvious error on behalf of the employee. Clearly the
correct respondent ought to have been the Company. Mr Glowiczower, as the
Managing Director of the Company would obviously have appreciated this error.
He has not sought to advance any defence to the merits of the application to have
the arbitration award made an order of Court. Mr Gild, who appeared on behalf
of the company, conceded that no prejudice would ensue if I substituted the
company for Mr Glowiczower as the respondent in the application to have the
arbitration award made an order of court. I am of the view that the ends of
justice would not be served if a technical error of this sort were allowed to non
suit the employee. I accordingly make the following order:
1 The application for the review and setting aside of the arbitration award made
by Commissioner Susan Harris on 15 March 1998 under Case No. GA16312 (“the
arbitration award”) is dismissed with costs.
2 Morgan Fashions SA (Pty) Ltd is substituted as the respondent in the
application to have the arbitration award made an order of court in terms of
section 158(1)(c) of the Labour Relations Act 66 of 1995.
3 The application to have the arbitration award made an order of court is
postponed sine die.
____________________
G J MARCUS
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
DATE OF HEARING: 24 JUNE 1999
DATE OF JUDGMENT: 24 JUNE 1999
For the applicant: No appearance
For the respondent: Mr T Gild
_______________________