IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO:
J2937/98
CASE NO:
J3270/98
In the matter between
ARMATO FOODS (PTY) LIMITED Applicant
and
R J TUCKER N.O. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
FRANSIE STAPELBERG Third Respondent
JUDGMENT
de VILLIERS AJ
1. This is the combination of an application by the Third Respondent to
have the award of the First Respondent (“the Commissioner”) dated 21
September 1998 made an order of Court in terms of section 158 (1) (c) of
the Labour Relations Act 66 of 1995 (“the Act”) and an application by the
Applicant to have that award of the Commissioner set aside in terms of
section 145 of the Act.
2. Certain time limits prescribed in the Rules of this Court were not
complied with. However, because the default was not prejudicial and
because the parties, at the hearing, chose not to take issue with each
other in this regard, the Court considered it expedient to condone the non
compliance by both parties and to proceed with the merits of the
application.
3. Because the only opposition to the Third Respondent’s application
to have the award made an order of Court is that the award ought to be set
aside on review, it is appropriate to determine the review application first.
The parties are therefore cited as they appear in that application.
4. The Applicants argued that, based on the following facts, which
were admitted by the Commissioner in his Explanatory Affidavit, the Court
ought to conclude that the Commissioner acted in a biased and unfair
manner towards the Applicant during the arbitration proceedings
alternatively acted in a manner which could reasonably be construed as
biased and unfair by the Applicant.
4.1. During the course of the arbitration the Commissioner observed that
he considered one of the Applicant’s witnesses (a Ms Ronald) unreliable.
4.2. Before giving one of the Applicant’s witnesses an opportunity to
explain her absence on 11 August 1998 (the date set for the arbitration
hearing) the Commissioner awarded costs in favour of the Third
Respondent and ordered the Applicant to pay the Commission’s costs.
4.3. During the course of the arbitration, the Commissioner directed a
remark to the Applicant’s legal representative that the arbitration
proceedings were not “LA Law”.
5. The Applicant argued that the Commissioner’s behaviour served to
”bolster” the Third Respondent and the Third Respondent’s representative
which, in turn, served to undermine the confidence of the Applicant’s
witnesses.
6. As a further indication of bias the Applicant pointed to the fact that
the commissioner included the payment of commission in the calculation of
the quantum of compensation awarded to the Third Respondent when:
6.1. it was common cause that the Third Respondent had been unable
to attain her sales target; and
6.2. there was no evidence of quantum.
7. This Court, relying particularly on BTR Industries SA (Pty) Ltd v
MAWU & Others (1992 (3) SA 673 (A) at 693I–J) has accepted that it is
the conduct of a commissioner which goes towards creating a reasonable
(my emphasis) suspicion of bias which is reviewable by the Court (See
Mutual & Federal Insurance Co Ltd v The Commissioner for
Conciliation, Mediation and Arbitration & Others [1997] 12 BLLR 1610
(LC) at 1618H 1619B and Afrox v Laka & Others J847/97 unreported).
8. In Afrox v Laka (at paragraph 31) Zondo J put it like this:
“……..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.
9. It is important to note that the test is an objective one (see BTR
Industries supra) allowing the decisionmaker to take account of the
manner and the context in which the conduct took place. Although BTR
Industries (supra) was dealing with an application for the recusal of the
presiding officer at an Industrial Court hearing, I believe the test is equally
applicable in this matter. The headnote properly summarizes the test as
follows:
The test to be applied therefore involves the legal fiction of the reasonable man.
That the test is an objective one does not mean, however, that the exceptio
recusationis is to be applied in vacuo ; the hypothetical reasonable man is to be
envisaged in the circumstances of the litigant who raises the objection to the
tribunal hearing his case.
10. The Court does not have the benefit of a verbatim transcript of what
transpired and there are numerous disputes of fact. However I do have
the benefit of the Commissioner’s detailed affidavit and of the Third
Respondents’ Answering affidavit which place the allegations made by the
Applicant in context and on which I can rely. (See Afrox v Laka & Others
at paragraph 32 and County Fair v CCMA & Others [1998] 6 BLLR 577
LC at 583 C D).
11. I also have copies of the Commissioner’s notes which he concedes
do not reflect rulings made by him against either parties’ representatives,
their objections or any of the “confrontational situations” which arose
during the course of the proceedings although they do represent an
accurate recordal of the material evidence of all the witnesses and the
arguments presented.
12. I shall therefore deal with each of the allegations made by the
Applicant having regard to what the Commissioner and the Third
Respondent has to say about the context in which they occurred.
13. During the course of the arbitration the Commissioner
observed that he considered one of the Applicant’s witnesses (a Ms
Ronald) unreliable.
14. At paragraph 4 of his Affidavit, the Commissioner admits that he
indicated that he did not consider that Ms Ronald was a reliable witness.
He then goes on to say:
“I consider that I was entitled to put to Ronald that the contents of her decision on
appeal did not support her statement that she had considered the evidence
presented to her in an unbiased and careful manner….. I consider this to be part of
my duties as a Commissioner so that she and Ledden would have the opportunity
of dealing therewith. The said Ronald appeared to me to be mostly concerned with
protecting her status as chairperson of the appeal and treated both my questions
and those of Dorkin as reflections on her integrity instead of applying her mind to
the unsatisfactory aspects of her evidence to which her attention was drawn.”
15. At paragraph 7.3 (Page 12) of her affidavit, the Third Respondent
states:
I deny that the First Respondent made snide remarks to the effect that Ronald was
being “untruthful” and was an “unreliable” witness in so many words. [The
Commissioner] indicated to Ronald that from Ronald’s answers he could not
understand how she could state that, in her opinion, I was guilty of poor
performance and that the Code of Good Practice had been followed by the
Applicant. My impression was that the First Respondent was trying to assist
Ronald.
16. Earlier in the paragraph 7.3 (at Page 11 of her affidavit), the Third
Respondent says the following:
The [Commissioner] asked questions of all the witnesses, including myself, during
the proceedings. He also asked questions of the representatives of the parties.
However, this could hardly be described as “continuous” interjection.
Under crossexamination Ronald was evasive and, as I am informed by my legal
Under crossexamination Ronald was evasive and, as I am informed by my legal
representative at the arbitration, indicated a clear lack of knowledge on the
different procedures outlined in Schedule 8 to the Labour Relations Act 1995
dealing with poor performance and misconduct. In fact, under crossexamination,
Ronald appeared to be completely unaware of the existence of the Code of Good
Practice, Schedule 8 to the Labour Relations Act, 1995. Ronald was clearly not at
ease under crossexamination and appealed to the [Commissioner] that my
representative was badgering her when in fact she was unable to adequately reply
to the questions put to her. The [Commissioner] informed Ronald that my legal
representative was entitled to put questions to her and that she should answer the
questions and also not ask questions of my legal representative.”
17. Seen in the context of the picture painted by the Third Respondent,
the Applicant’s allegations in its Founding Affidavit that the Commissioner,
in questioning Ronald, “adopted a blatantly aggressive and hostile attitude
towards Ronald”, that he “made snide remarks to the effect that Ronald
was being untruthful”, that his interjections “went beyond attempting to
clarify unclear evidence and constituted very incisive crossexamination of
the Applicant’s witnesses” and that, in doing so, he assisted the Third
Respondent in establishing that her appeal hearing was unfair, cannot be
sustained.
18. In dealing with a matter fairly (which section 138 (1) obliges a
Commissioner to do), in appropriate circumstances, it may be incumbent
upon a Commissioner who has formed the impression that evidence is
unreliable to alert the witness to this in order to give the witness an
opportunity to restore his/her credibility by way of explanation. It may be
appropriate to do so even when a witness is under crossexamination
(which the Applicant alleges is the case here).
19. Obviously, the way in which this is done is important. The way in
which the Commissioner, in this instance, conducted himself led the Third
Respondent to believe that the Commissioner was assisting the witness.
She would not have come to this conclusion, had the Commissioner’s
attitude been “blatantly aggressive and hostile”.
20. For all these reasons, the Applicant’s contentions in this regard do
not persuade me that the Commissioner’s conduct in this regard could
reasonably have led to a suspicion of bias.
21. Before giving one of the Applicant’s witnesses an opportunity
to explain her absence on 11 August 1998 (the date set for the
arbitration hearing) the Commissioner awarded costs in favour of the
Third Respondent and ordered the Applicant to pay the
Commissioner’s costs.
22. The Commissioner explains this as follows at paragraph 4.5.1 of his
affidavit.
The matter had been postponed on 17 July 1998 to 11 August 1998. The date was
agreed to by the parties and myself as this was a date on which Mrs Levitas, a key
witness for the Applicant, would definitely be available to give evidence.
When the parties assembled on 11 August, Ledden stated that the matter would not
take long as Mrs Levitas was not available and a postponement had to be granted.
I pointed out that he had no right to demand a postponement and that I required an
explanation for her absence. Neither Ledden nor the deponent was able to tender
an explanation. I directed that Mrs Levitas secretary be telephoned to ascertain if
she had knowledge of the reason for Mrs Levitas absence and it was reported to
me that she also did not know where Mrs Levitas was.
Either the deponent or Ledden could only say that Mrs Levitas’s mother was in
South Africa from abroad and it was believed that she had gone to her in Cape
Town but had no other information for me. In these circumstances the provisions
of the Labour Relations Act relating to an award of costs appeared appropriate
especially as Ledden was not prepared to call any of his other witnesses until Mrs
Levitas was called to testify.
In view of the fact that Dorkin a practising attorney had been engaged for the day
there was no reason why the Third Respondent should have to bear his wasted
costs. Furthermore, the Commission for Conciliation, Mediation and Arbitration
costs. Furthermore, the Commission for Conciliation, Mediation and Arbitration
was obliged to pay my fees as Commissioner (R1 500 plus VAT) for the day. The
Commissioner’s (sic) budget is severely strained and considerable amounts are
wasted arising out of postponements. The postponement was entirely caused by
the absence of the witness for the Employer (she being its Sales Director) and the
indifference shown by her to the process bordered on contempt as she did not so
much as inform her representative of the reason for her absence.
When Mrs Levitas gave evidence on the next occasion she endeavoured to explain
her absence on the previous occasion. However I pointed out to her that this was
irrelevant as the order for costs had been made. I deny that this order showed bias
or an unreasonable attitude towards the Applicant.”
23. The Third Respondent says the following at paragraph 7.5 Page 14
of her affidavit.
On 11 August 1998, the second day of the arbitration hearing, the Applicant was
due to commence with its case at approximately 09h00. Ledden informed the
[Commissioner] that the Applicant requested a postponement of the matter as
Levitas was not available to give evidence. Lombard, who also gave evidence at
the arbitration, was present.
The [Commissioner] asked Ledden and Lombard where Levitas was and both stated
that they did not know where she was. It is a blatant untruth that Ledden informed
the [Commissioner] that Levitas was unavailable due to a medical emergency.
After Ledden and Lombard were requested to establish the whereabouts of Levitas
by the [Commissioner] they returned after approximately half an hour to say that
apparently Levitas’s mother was in South Africa and that Levitas was in Cape Town
with her mother. They had not been able to contact Levitas on her cellular
telephone.
I submit that the costs order was justified in the circumstances especially as
Lombard was not prepared to give evidence at that stage. Our entire day was
wasted and Levitas did not even have the courtesy to explain her absence.
24. Later in her affidavit, the Third Respondent says the following (at
paragraph 7.6 Page 16):
It should be mentioned that on the day that Levitas did attend and give evidence
she informed the [Commissioner] that she was not feeling well. When the
[Commissioner] asked her whether she wished to continue she said that she did and
gave evidence from 09h00 to 10h00 when she again complained of not feeling well.
When the [Commissioner] asked her again whether she wished to continue she said
that she did not and the matter was postponed again to a later date.
25. CCMA commissioners are entitled to be more stringent than a Court
with its requirements for granting postopnements. (See Carephone (Pty)
with its requirements for granting postopnements. (See Carephone (Pty)
Limited v Marcus N.O. and others [1998] 11 BLLR 1093 LAC; Ross &
Son Motor Engineering v CCMA & Others [1998] 11 BLLR 1168 LC).
26. If the Commissioner had continued the arbitration in the absence of
Levitas in the face of prima facie evidence before him that Levitas was not
available due to a medical emergency, I could understand the Applicant’s
complaint. But both the Commissioner and the Applicant deny that the
Commissioner was advised by the Applicants on 11 August 1998 that the
reason for Levitas’s failure to attend was due to a medical emergency.
27. Relying on the Commissioner’s and the Applicant’s version of what
transpired on 11 August 1998, I am satisfied that the delay in finalizing the
arbitration on that day was occasioned by the frivolous and vexatious
conduct of the Applicant in failing to ensure that its witness, Levitas, was
present, the proceedings already having been postponed once before
because of Levitas’s unavailability, alternatively its failure to establish
where she was prior to the hearing. I agree with the Commissioner when
he says in his Explanatory Affidavit at paragraph 4.5.3 that her failure to
inform her representatives of the reason for her absence bordered on
contempt.
28. Before making application for a postponement, it is incumbent upon
parties, particularly in arbitrations under the auspices of the CCMA
because of its limited resources, to lay a proper foundation for the
application. In this case, the Applicant’s appear to have adopted a
frivolous and vexatious attitude to the arbitration proceedings by not even
attempting to ensure, prior to the hearing, that Levitas would be there or
making any kind of enquiry as to her whereabouts prior to making
application for the postponement. I do not believe that the Applicant, as
her employer, would have had much difficulty in doing so.
29. It is this conduct which justified the order for costs. Any
explanation for the reasons for the absence subsequently would be
irrelevant.
30. There is nothing in the Act which suggests that the Commission’s
costs should not be included in such an order and, where parties are
properly found to have acted frivolously or vexatiously, there is no reason
why the prejudice suffered by the Commission, as a result of the frivolous
and vexatious conduct, should not be taken into account in the order to
alleviate the prejudice suffered by the Commission.
31. On the papers, there appears to be nothing untoward about the way
in which the Commissioner went about making the order, which was
reasonable in the circumstances and hence any suspicion that the
Applicant’s may have had that this indicated bias on the part of the
Commissioner is unreasonable.
32. During the course of the arbitration, the Commissioner
directed a remark to the Applicant’s legal representative that the
arbitration proceedings were not “LA Law”.
The Commissioner deals with this as follows at paragraph 4.4 of his
affidavit.
“I admit that I reprimanded Ledden on more than one occasion when he attempted
to object to aspects of Dorkin’s legitimate crossexamination and told him that this
was not “LA Law” …… Ledden’s objections almost without exception were raised
in the abrupt and cryptic manner of lawyers in the “LA Law” television series
whenever his witnesses were having difficulty in answering Dorkin’s questions.
These objections appeared to me to be attempts to frustrate the process and to
assist the witnesses. I frequently had to explain to Ledden that provided the
questions were relevant, a crossexaminer had wide discretion as to the questions
he asked.”
33. The Third Respondent has this to say at paragraph 7.4 Page 13 of
her affidavit:
It is not true that my legal representative, Dorkin crossexamined Ronald in an
aggressive and badgering manner. The truth, I submit, is that Ronald became
increasingly uneasy under crossexamination and she and Ledden sought to
rescue the Applicant’s position by objecting to the questions put to Ronald. On
every occasion that Ronald experienced difficulty in answering questions, she
became aggressive towards Dorkin, objected to the questions put to her and
became aggressive towards Dorkin, objected to the questions put to her and
answered questions with questions. Ledden took the opportunity to object to
questions on almost every occasion that Ronald appeared to be in difficulty. For
example, when Dorkin put it to Ronald that she had not answered the question put
to her, Ledden would object that she had in fact answered the question when in
fact she had not. After repeated objections by Ledden which were done in the most
dramatic fashion, the [Commissioner] advised Ledden that Dorkin was entitled to put
the particular question and told him that this was not “LA Law”……
As someone not familiar with legal processes, I was appalled at Ledden’s
behaviour during the arbitration. He adopted a hostile attitude towards me when I
was under crossexamination and he objected whenever it appeared that the
Applicant’s witnesses were experiencing difficulty.
34. It is evident that the behaviour of the Applicant’s representative,
Ledden, warranted some form of admonishment and hence the remark
was not made gratuitously or for want of provocation. While I accept that
the remark may have been unfortunate and that perhaps it may have been
more appropriate for the Commissioner to have called the representatives
aside and admonished the Applicant’s representative out of earshot of his
client, put in context, it was a frivolous remark, and is not such as could
lead to a finding that it created a reasonable suspicion of bias.
35. Regarding his decision to include commission in the amount of
compensation awarded to the Third Respondent, the Commissioner
explains that he considered this appropriate for the following reasons.
• There was no dispute that the total remuneration earned by the
Third Respondent comprised a basic salary and commission.
• Not to have included commission in the calculation would have
operated to the unfair disadvantage of the Third Respondent.
• Having regard to the definition of “remuneration” in the Labour
Relations Act, he considered that it was appropriate so to do.
• There was no dispute that the average commission earned by
the Third Respondent was R2 732,00 per month.
36. Commission is part of an employee’s remuneration. (In this regard,
see Schoeman and Another v Samsung Electronics SA (Pty) Ltd
(1997) 18 ILJ 1098 at 1102 I J). Thus, a Commissioner is obliged to take
it into account for the purposes of quantifying the amount of compensation
payable in terms of section 194 (1) and (2) irrespective of whether the
employee would have been entitled to that remuneration had they still
been in employment.
37. Having decided that the dismissal was both procedurally and
substantively unfair, the Commissioner declined to order reinstatement or
reemployment, exercised his discretion to award compensation and
correctly related the quantum to the remuneration of the Third Respondent
as required by the provisions of section 194 (2).
38. While I accept that there could be no evidence of what the Third
Respondent would actually have earned in commission, the
Commissioner’s decision to award an amount equivalent to the average,
which was based on the evidence before him, was reasonable and hence
not indicative of bias.
39. During argument the Court’s attention was drawn to the following
remarks made by the Commissioner at paragraph 5.4 in his explanatory
affidavit as an indication of his attitude towards the Applicant:
If Ledden felt humiliated by his absence of understanding of the correct procedures
then so be it. I certainly did not use disrespectful or demeaning language towards
him. To suggest that a Commissioner is not entitled to engage or criticise a
witness in the presence of the Third Respondent or her representative or to engage
in dispute a representative of the Employer in the presence of his client shows a
poor understanding of the process of testing evidence.
In any event I cannot understand how the socalled belittling and humiliation of
Applicant’s representatives and witnesses in the presence of the Third Respondent
and her representative (even if it did take place) “undermined” the arbitration
proceedings and prevented the Applicant from properly presenting its defence to
the allegations.”
40. In this regard, the headnote to BTR Industries (supra) is helpful.
The relevant portion reads as follows:
“It is important, nonetheless, to remember that the notion of the reasonable man
cannot vary according to individual idiosyncrasies or the superstitions or
intelligence of particular litigants”
41. Whether the Applicant’s representative may or may not have felt
belittled or humiliated is not the point. The question is whether the
Commissioner behaved in such a way that a reasonable person would
have come to the conclusion that Ledden was being humiliated and
belittled and that the humiliation or belittling was such as to lead the
reasonable lay litigant to question the partiality of the Commissioner.
42. While the Applicant has attempted, in its Founding Affidavit, to show
that the Commissioner behaved in this way, there is no support for the
Applicant’s submissions either in the Third Respondent’s affidavit or that of
the Commissioner. In fact, both deny that the Commissioner belittled or
humiliated the Applicant’s representative.
43. Had the Commissioner belittled or humiliated the Applicant’s
representative, one would have expected Ledden (who appears to have
had little difficulty raising objections during the proceedings) to have raised
an objection at the time which he did not do, according to the
Commissioner (at paragraph 4.3 of his Explanatory Affidavit). This point
was not denied by the Applicant in its replying affidavit.
44. I must therefore accept that Ledden did not take issue with the
Commissioner regarding his conduct during the hearing and find that the
probabilities, therefore, favour the Commissioner and the Applicant’s
versions that Ledden was not belittled or humiliated. If this is so, then the
Commissioner’s comments, made after the event, has no relevance to the
decision which the Court has to make now, a decision which involves an
examination of the conduct of the Commissioner during the course of the
hearing. One cannot infer bias from conduct post facto .
45. In the circumstances the review of the Commissioner’s conduct
does not succeed and the application is dismissed.
46. The Applicant has made the following unsubstantiated allegations of
misconduct on the part of the Commissioner.
46.1. The Commissioner continually interfered with Ledden’s attempt to
lead the Applicant’s witnesses and crossexamine the Third Respondent;
46.2. The Commissioner continually interjected whilst the Applicant’s
witnesses were attempting to give their evidence. When Ronald attempted
to place evidence before the Commissioner, the Commissioner adopted a
blatantly aggressive and hostile attitude towards Ronald. For example,
when Ronald testified that she had considered all the evidence presented
to her in an unbiased and careful manner, the Commissioner made snide
remarks to the effect that Ronald was being untruthful;
46.3. The Commissioner reprimanded Ledden by telling him to “shut up”;
46.4. When Ledden attempted to explain to the Commissioner that
Levitas as not available to give evidence on 11 August 1998 due to a
medical emergency, the Commissioner was not prepared to accept this
explanation and again became aggressive and antagonistic towards the
Applicant.
47. These are indeed extremely serious and damaging allegations
made about a senior Commissioner of the CCMA for which there is no
support on the papers. They are denied by both the Commissioner and
the Third Respondent.
48. It is clear from the Commissioner’s notes, which run to some 150
handwritten pages, that the Applicant had a full opportunity to cross
examine the Third Respondent and to present its case. If anyone’s
conduct requires admonishment it appears to be that of the Applicant’s
representative at the hearing, conduct which “appalled” the Third
Respondent.
49. In these circumstances, the Court has an obligation to show its
displeasure in order to deter others from pursuing the same course in
future. (See, for example, Karbochem Sasolburg v Kriel & Others J2161
unreported). Litigants who make such allegations and are unable to
adduce any evidence to prove them must know that they do so at their
peril. As Cheadle AJ points out in Coetzee v Lebea NO & Another 1999
(20) ILJ 169 at paragraph 4:
“It does great disservice to our public institutions to weigh in with unsubstantiated
claims of impropriety”
50. The Court’s displeasure in this instance is reflected in the costs
order in the review application.
51. I therefore make the following order:
51.1. The application to have the award of the First Respondent set aside
is dismissed.
51.2. In terms of the award of the First Respondent, the Applicant is to
pay the Third Respondent the sum of R94 608,00 (Ninety Four Thousand
Six Hundred and Eight Rands) plus interest in terms of section 143 (2) of
the Labour Relations Act of 1995 at the rate of 15,5 percent per annum
from 21 September 1998 to date of payment.
51.3. The Applicant is to pay the costs of the Third Respondent’s
application in terms of section 158 (1) (c) on a party and party scale.
51.4. The Applicant is to pay the costs of Third Respondent’s opposition
to the application to have the award of the First Respondent set aside on
an attorney and client scale.
……………………………………..
I de VILLIERS A J
Acting Judge of the Labour Court
Date of Hearing : 29 April 1999
Date of Judgment : 6 July 1999
For the Applicant : Advocate M van As
instructed by Sampson Okes
Higgins
For the Third Respondent : Advocate C Bredenkamp
instructed by Rooth and Wessels