166336IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C630/98
In the matter between:
MOGAMAT RASHAAD SOLOMON Applicant
And
COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION First
Respondent
COMMISSIONER E M JAWA Second
Respondent
CITY OF CAPE TOWN Third
Respondent
JUDGMENT
STELZNER AJ
1. In this matter the applicant seeks to review the award of the second respondent,
sitting as a commissioner under the auspices of the Commission for Conciliation,
Mediation and Arbitration, in terms of section 145 of the Labour Relations Act, No 66
of 1995 (“the Act”).
2. The applicant is currently employed by the third respondent as its Chief Building
Inspector. During November 1997 the post of Principal Building Control Professional
(“the professional position”) was advertised by the third respondent by way of
internal advertisement. Applicant applied for the position along with seven others,
but following a selection procedure which involved both a written test as well as an
interview, one Moir was appointed to the position.
3. The applicant was aggrieved by this appointment and appealed against the
appointment by means of an in-house grievance procedure. The substance of
applicant’s complaint was twofold. In the first instance he argued that Moir was not
1
qualified for the position in terms of the National Building Regulations and Building
Standards Act, 103 of 1997 (“the 103 Act”) when, by implication, the provisions of the
103 Act are applicable to appointments to the professional position. Secondly, his
complaint was based on an argument that he, the applicant, was better qualified and
possessed more experience than Moir and, accordingly, should have been preferred
for the professional position.
4. The appeal was dismissed and the applicant then referred his dispute, after
conciliation had failed, to the first respondent for arbitration. The arbitration took
place on 6 October 1998 before the second respondent. The arbitration proceeded
and at the conclusion thereof the second respondent reserved his award. The award
was eventually handed down on 27 October 1998 and the application was dismissed.
5. In his founding affidavit the applicant raised three grounds of review but one of these
grounds was subsequently abandoned. The two remaining grounds were as follows:
5. 1 that the second respondent misconducted himself during the proceedings; and
5. 2 that the second respondent acted unreasonably in finding as he did (or, put
differently, that there was no rational objective basis between the evidence before
him and the conclusion he eventually arrived at.)
6. When the matter was argued before me it became apparent that applicant’s real
complaint under the first heading referred to above was, in fact, that second
respondent had committed a gross irregularity in the conduct of the arbitration
proceedings. The relief which the applicant seeks is that the arbitration award be
reviewed and set aside and that the matter be remitted back to first respondent for
2
consideration afresh before a commissioner other than the second respondent and,
preferably, a Senior Commissioner.
7. It is common cause that at the commencement of the arbitration proceedings the
applicant sought to be represented by one Mogamat Zane Solomon. It was pointed
out by the third respondent’s representatives that Mogamat Zane Solomon was not
permitted to represent the applicant by virtue of the provisions of a collective
agreement concluded between the third respondent and the South African Municipal
Workers’ Union and on that basis Mogamat Zane Solomon was excluded from the
proceedings save to the extent that he testified as a witness on the applicant’s behalf
for a limited portion of the proceedings. It was common cause by the time the matter
came before me that Mogamat Zane Solomon was correctly excluded from the
proceedings as applicant’s representative. It was also common cause that a shop
steward, one K Fortune, was present and available to assist applicant as his
representative in the proceedings but that applicant declined to make use of his
services and instead elected to represent himself.
8. It was clear from the papers before me that at the commencement of the proceedings
the second respondent sought to establish the exact nature of the issue/s in dispute
before him. In conjunction with the parties he conducted an exercise designed to
clarify and/or narrow the issues in dispute. The conclusion of this process is summed
up in the second respondent’s arbitration award as follows:
“The only issue in question is the qualifications of the successful candidate and
whether the appointment was in keeping with the provisions of the 103 Act”.
3
The issue in dispute thus appears to have been limited to cover only one aspect of
applicant’s complaint as framed by him on appeal and as outlined above. Various
extracts from the transcript of the proceedings before second respondent confirm
that what the parties had in mind was that second respondent had to determine
whether or not Moir had the qualifications required by the 103 Act and whether that
Act applied to his appointment to the professional position. That was the case which
applicant sought to make out at the arbitration proceedings.
9. The conduct of the arbitrator in the narrowing of the issues exercise conducted by
him was the subject of one of the applicant’s grounds of review. It was submitted
that in dealing with an unrepresented applicant the arbitrator acted in an irregular
fashion in limiting the issues to such an extent that he in effect at best deprived the
applicant of one leg of his case and at worst engineered a process in terms of which
the applicant could not have succeeded even on a best case scenario. In other words,
even if he were successful on the issue as defined he would still not have made out a
case for the relief sought by him.
10. It is also common cause that pursuant to the issues having been limited as set out
above the third respondent chose to only call two witnesses and, in fact, released the
other witnesses who were present and who had been prepared to testify on other
potential aspects of the dispute, more particularly, the selection process conducted
by the third respondent and criteria such as experience and competency.
11. It was also clear from the papers before me and, it seems, it emerged during the
arbitration proceedings before the second respondent, that two different
appointments came under discussion and consideration during the proceedings. It
4
was also apparent that the distinction between these two appointments had, quite
possibly, been confused by the applicant. The position which was advertised and for
which the applicant had applied was the professional position already referred to
above. The third respondent also appoints what is known as a Building Control Officer
(“the officer position”). The officer position is not a post to which some one person is
appointed but rather is a title conferred upon a person who already occupies some
other position or post. More than one person can be appointed as Building Control
Officer at the same time (in fact this is usually what happens) and the position is one
of title rather than particular substance, being a non-remunerative position. Put
differently, the person or persons appointed as Building Control Officer/s will
inevitably hold some other post within the third respondent’s establishment.
12. What emerged on the papers before me and in argument and what appears to
have emerged in the proceedings before the second respondent, is that it is the
officer position which is governed by the provisions of the 103 Act. Certain
qualifications are required in order for a person to perform the functions of the officer
position. If third respondent wishes to appoint someone to the officer position when
that person does not possess the statutory qualifications then it is possible to
approach the South African Bureau of Standards for an exemption to allow that
person to perform the officer functions. This appears to have, as a matter of fact,
occurred in respect of Moir some time subsequent to him having been appointed to
the professional position and as a result of such an exemption application being
successfully made.
13. On the evidence before him it appears that the second respondent found that
5
there are no statutory qualifications required for appointment to the professional
position. On that basis the appointment of Moir to the professional position was not
irregular vis-à-vis the 103 Act. However, second respondent in his award went on to
consider the question of whether or not Moir had the qualifications as set out by the
third respondent when it advertised the professional position. It also appears that on
the basis of the issues as narrowed it was not open to second respondent to consider
this further aspect. In that regard the second respondent concluded that the third
respondent acted unfairly in that it appointed someone on the basis of experience or
competency rather than the specific qualifications which it had advertised. He
concludes that this is misleading and unfair. The post was advertised as requiring “ a
degree in Architecture, Planning or an equivalent qualification .” Moir had certain
courses towards a diploma where it appears common cause that the applicant had
the stipulated qualification. The third respondent concludes that the appropriate
course of action in the circumstances would be for the employer to re-advertise the
post stipulating the “relaxed” qualification requirements. This would allow for
potential candidates without the degree to apply and be considered and would not
mislead people into thinking that the successful candidate would have a degree. On
the issues as framed at the outset he ought not to have considered this aspect at all.
14. The second respondent goes on in his award to reaffirm the fact that “ the process
of the interview and selection as well as the factors considered to appoint the
candidate, except the formal qualifications, are not in dispute.” Having confirmed the
agreement to the effect that the selection process was not in dispute, the second
respondent proceeds to consider whether in all the circumstances the applicant ought
respondent proceeds to consider whether in all the circumstances the applicant ought
to be appointed to the position because on the face of it he had the degree
6
qualifications called for in the advertisement. He then states that an employee does
not qualify for appointment simply on the basis that he possesses the required formal
qualification. Accordingly, as he finds that he cannot grant the relief sought by the
applicant, so it seems, he dismisses the application.
15. Thus, it appears that third respondent finds that the formal 103 Act requirements
were not applicable to the professional appointment. That, on the issues as
narrowed, ought to have been the end of the matter. Second respondent, however,
goes on to find that the third respondent appointed Moir without his having the formal
qualifications identified by it in its advertisement. This second respondent finds was
misleading and unfair. It seems on this basis (and if the issues had not been
narrowed to exclude this argument) that he ought to have found for the applicant.
However, he says that he cannot find for him because he cannot give him the relief
he seeks and he cannot do that because a person cannot simply be appointed to a
position because he has a degree. If a candidate contended that he met all the
requirements for the job but for the degree, he says, the conclusion “may have been
different”. The issue of whether the applicant met all the requirements for the job,
however, he did not and could not consider because “the process of the interview and
selection as well as the factors considered to appoint the candidate … are not in
dispute.”
16. In arguing the matter before me both parties were ad idem that the now
established principles as set out in Carephone (Pty) Ltd v Marcus NO & others (1998)
19 ILJ 1425 (LAC) should be followed. On the basis of the Carephone decision the
award of third respondent must be “ justifiable in relation to the reasons given for it. ”
7
(At 1434B). “When the Constitution requires administrative action to be justifiable in
relation to the reasons given for it, it thus seeks to give expression to the
fundamental values of accountability, responsiveness and openness. It does not
purport to give courts the power to perform the administrative function themselves,
which would be the effect if justifiability in the review process is equalled to justness
or correctness
In determining whether administrative action is justifiable in terms of the reasons
given for it, value judgments will have to be made which will, almost inevitably,
involve the consideration of the ‘merits’ of the matter in some way or another. As
long as the judge in determining this issue is aware that he or she enters the merits
not in order to substitute his or her own opinion on the correctness thereof, but to
determine whether the outcome is rationally justifiable, the process will be in order.”
(At 1435A-C).
17. Mr Whyte, who appeared on behalf of the applicant, argued firstly that there was
an irregularity in the very process of narrowing the issues conducted by the second
respondent in that it ought to have been clear to the second respondent that
applicant’s case amounted to more than the mere allegation that the appointment of
Moir was irregular because of a failure to adhere to the 103 Act requirements. At all
times, so it was submitted, it was clear that his case also concerned the averment
that he had the requisite experience for the position, was in that sense better
qualified than Moir, and ought to have been appointed. Although on the face of it
there appears to have been an agreement reached in regard to narrowing the issues
in dispute Mr Whyte sought to argue that an agreement requires a meeting of the
8
minds and that it was quite clear that this had not in fact happened in the instant
case.
18. There appears little doubt on the papers before me that a meeting of the minds in
fact occurred. There are a number of references in the transcript of the proceedings
in which the parties clarified and confirmed that the issues had been so limited and in
which applicant pursued his case which at that stage was clearly that the 103 Act
applied to the professional appointment. (It was only later that he realised that he
had made a mistake in that regard.) I also agree with Mr Brown, who appeared for
the third respondent, that second respondent was acting within the scope of his
powers under s 138(1) of the Act when he conducted the exercise designed to
identify and narrow the issues. The fact that applicant was not represented during
this process (his own choice) cannot in itself render the process irregular. Many if not
most parties appeared before the CCMA on an unrepresented basis. In my view it is
both necessary and desirable that CCMA commissioners make an effort with the
parties to identify and narrow the issues in dispute. There is no indication on the
papers that applicant did not understand what was being done in that regard or that
he was in some way misled by the process.
19. I am satisfied that having narrowed the issues in dispute, however, the reasoning
of the second respondent and the manner in which he conducted the arbitration
thereafter was not logical or consequential. Although the outcome of the arbitration
on the face of it favoured the third respondent in that the application was dismissed,
and although the outcome may very well be the correct one in the end, I am not
satisfied that the process of reasoning adopted by the arbitrator is rationally
9
justifiable or that, having so narrowed the issues, he stuck to the issues as limited,
either in regard to the evidence which he allowed or in the regard to the issues on
which he pronounced. I have, on the Carephone approach, entered into the merits
not in order to form a view on the correctness of the award (and I do not purport to
make any definitive pronouncements in that regard) but to consider whether the
Constitutional values of accountability, responsiveness and openness have been
upheld.
20. If I were simply required to consider whether the outcome was rational on the
basis of the evidence properly before second respondent and on the issue as
identified at the outset, in a vacuum so to speak, I would not have been inclined to
set aside the award. However, although the second respondent reached what
appears to have been the correct decision on the issues as narrowed he did so on the
basis of faulty reasoning and after introducing and pronouncing upon issues which he
ought not to have been considering. If I consider all the material before the second
respondent (some of which he ought to have excluded after the issues had been
narrowed) and the various conclusions he arrives at, then I am not satisfied that the
matter was rationally or properly dealt with. Certainly, in the body of the award,
findings were made against the third respondent on issues on which the third
respondent deliberately did not lead evidence in the light of the narrowing of the
issues at the commencement of the proceedings. Moreover, on second respondent’s
reasoning and after he considered Moir’s qualifications in relation to the position as
advertised (which he ought not to have done) he ought to have found in applicant’s
favour. The basis on which he refuses to do so is flawed. He says in essence that he
cannot grant relief because he has no evidence before him to show that applicant had
10
more than the formal degree qualification to justify his appointment to the position.
Yet he acknowledges that the “ factors considered to appoint the candidate, except
the formal qualifications, are not in dispute ” so applicant would not have been in a
position to lead evidence on the issues which he would have needed to lead evidence
on in order to justify the relief sought by him.
21. I considered the advisability of taking a very narrow view of the Carephone ratio,
which it seems would enable me to simply say that the “conclusion eventually arrived
at” by second respondent, namely, to dismiss the application, was justifiable in
relation to the “material properly available” to him, being that evidence in relation
only to the issues as narrowed. Such an approach might have produced a “correct”
result but that is not, in my view, what I am called upon to do. The review process is
designed to ensure that certain fundamental values are upheld, that “due process” is
followed in regard to administrative action, in this instance being arbitration
proceedings under the auspices of the CCMA. I am satisfied that these values were
not upheld and that “due process” did not occur when this matter was dealt with by
second respondent. To allow the award to stand in the circumstances would set an
undesirable precedent and would send a wrong message to CCMA commissioners, in
the effect, that it really does not matter how you reach the result as long as the result
is correct.
22. In all of the circumstances I am satisfied that a case has been made out for the
review and setting aside of the award and that this is a matter which ought
appropriately to be referred back to the first respondent for a hearing ab initio before
a new arbitrator. As the issues in dispute are not uncomplicated I am of the view that
11
it would be appropriate for a Senior Commissioner to be appointed.
23. I have come to the conclusion that, in a sense, both parties were prejudiced by
virtue of the manner in which the second respondent dealt with this matter. In the
circumstances I do not believe that it was unreasonable either for the applicant to
bring this application or for the respondent to oppose it. This appears to be sort of
case, therefore, where it would be appropriate to make no order as to costs.
24. In the circumstances I make the following order:
24.1The award of the second respondent under case number WE12914 of 27 October
1998 is hereby reviewed and set aside.
24.2The matter is referred back to the first respondent for a hearing ab initio before a
Senior Commissioner.
24.3There is no order as to costs.
S STELZNER
Acting Judge of the Labour Court of South Africa
DATE OF HEARING: 20 August 1999
12
DATE OF JUDGMENT: 27 August 1999
APPEARANCE FOR APPLICANT: Mr J Whyte
OF: Chennells Albertyn
APPEARANCE FOR RESPONDENT: Mr R Brown
OF:
13