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166336
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C131/2000
In the matter between:
COUNTY FAIR FOODS (PTY) LIMITED Applicant
And
COMMISSIONER JAN THERON N.O. First
Respondent
COMMISSION FOR CONCILIATION, MEDIATION &
ARBITRATION (CCMA)
Second
Respondent
WESTERN CAPE WORKERS ASSOCIATION obo
LITHONIE
Third
Respondent
JUDGMENT
STELZNER AJ
1. This was matter came before me by way of an opposed review in terms of the provisions of section 145 of
the Labour Relations Act, 66 of 1995 (“the Act”). The applicant seeks an order that the arbitration award
handed down by the first respondent on 22 December 1999 under the auspices of the second respondent be
reviewed and set aside and, in the event of the review being successful, that the matter be referred back to
the second respondent for determination de novo by a Commissioner other than the first respondent.
2. As indicated, the matter was opposed. However, when the matter came before me I was not in possession
of heads of argument from the respondent as required by Practice Direction 1 of 1998 of this Court. I was
therefore not in a position to prepare for the hearing of the matter with reference to the propositions to be
raised by the respondent, simply having had the benefit of the applicant’s heads of argument. Mr August,
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who appeared for the respondent, indicated that he did not seek a postponement for the purposes of enabling
him to file heads of argument but elected that the matter proceed on an unopposed basis, apparently because
he did not wish to run the risk of an adverse costs order. Having established clearly that Mr August wished
to waive the rights of the third respondent (and thus Mr Lithoni whom the third respondent represents) to
argue in opposition to the matter I then proceeded to hear the matter on the basis of the argument presented
by the applicant’s Counsel alone. I nevertheless am required to satisfy myself with reference to all the
documents properly before me that a proper case has been made out for review. The documents before me
include not only the opposing affidavit filed on behalf of the third respondent but a fairly detailed affidavit
filed by the second respondent, albeit that the second respondent does not oppose this application.
3. The factual background to the matter is as follows. Lithoni was employed as a truck driver by the applicant,
was charged with and dismissed for reckless driving. The incident giving rise to the charge took place on an
inclining public road near the applicant’s premises. Lithoni had attempted to overtake another truck
belonging to the applicant. As the two trucks drew level, a vehicle appeared at the top of the rise heading in
the direction of the truck. The driver of the slower truck took evasive action by moving his vehicle entirely
off the road onto the gravel verge. This allowed Lithoni to move his truck over into the road space vacated
by the other driver and so to avoid a collision with the oncoming vehicle. Lithoni, as I have stated, was
charged with and was dismissed for reckless driving, after the holding of a disciplinary enquiry.
4. When the matter came before the first respondent by way of arbitration evidence was heard from a number
of witnesses on behalf of the applicant. These witnesses were one Matthys, the driver of the vehicle which
Lithoni had been trying to overtake, one Erasmus who had at the time been travelling a short distance
behind Lithoni in another of applicant’s vehicles and who observed the incident, one Hobden, who was the
chairperson of the disciplinary enquiry, as well as one Pieters who proffered certain evidence including an
estimation of how long it would have taken for one truck to pass another on the hill, although he did not
observe the incident in question. The evidence before the first respondent was taperecorded and
transcribed but it transpired that the tape recorder had erroneously been switched off during the course of
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the evidence of Pieters and that evidence was accordingly not available by way of transcription. Lithoni
gave evidence on his own behalf.
5. As I have already stated this application was brought under the provisions of section 145 of the Act with
particular reference to section 145(2)(a)(i) and/or section 145(2)(a)(ii). In short it was submitted that the
award was vitiated by defects in the sense of misconduct in relation to the duties of the first respondent as
an arbitrator, as well as gross irregularities in the conduct of the arbitration proceedings. The applicant’s
case under the heading of misconduct was based on the submission that the first respondent conducted the
proceedings in such a way that his conduct gave rise to a reasonable apprehension of bias. While it was
submitted that his conduct in this regard constituted misconduct it was submitted in the alternative that, at
the very least, the conduct constituted a gross irregularity in the conduct of the arbitration proceedings. The
applicant raised further concerns in regard to what has been termed previously by this Court and the Labour
Appeal Court “ latent irregularities” in the reasoning process of the arbitrator. Because of the conclusion
which I have reached on the submission that the first respondent’s conduct was such that a reasonable
apprehension of bias existed I have not found it necessary to consider the further contentions put forward by
the applicant.
6. I turn then to deal in further detail with the issue of alleged bias and to consider whether or not misconduct,
alternatively a gross irregularity in the conduct of the proceedings, occurred.
7. For there to be misconduct, it has been held that there must be some “ wrongful or improper conduct ” on the
part of the decisionmaker, in this instance the Commissioner. (See Dickinson & Brown v Fisher’s
Executors 1915 AD 166 at 176). Misconduct has also been described as requiring some “ personal
turpitude” on the part of the decisionmaker. (See Reunert Industries (Pty) Ltd t/a Reutech Defence
Industries v S Naicker & others (1997) 18 ILJ 1393 (LC) at 1395HI.) The basic standards of proper
conduct for an arbitrator are to be found in the principles of natural justice, and in particular the obligation
to afford the parties a fair and unbiased hearing. (See Baxter Administrative Law at 536). These principles
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have been reinforced by the constitutional imperatives regarding fair administrative action. (See Carephone
(Pty) Ltd v Marcus NO (1998) 19 ILJ 1425 (LAC) at 1431I1432A.) The core requirements of natural
justice are the need to hear both sides ( audi alteram partem ) and the impartiality of the decisionmaker
(nemo iudex in sua causa ). (See Baxter ( supra) at 536.)
8. It follows from the above principles that a Commissioner must conduct the proceedings before him in a fair,
consistent and evenhanded manner. This means that he must not assist, or be seen to assist, one party to the
detriment of the other. Therefore, even though a Commissioner has the power to conduct arbitration
proceedings in a manner that the Commissioner considers appropriate in order to determine the dispute
fairly and quickly under the provisions of section 138(1) of the Act, this does not give him the power to
depart from the principles of natural justice. Thus, further, although it clearly lies within the
Commissioner’s powers to decide whether to adopt an inquisitorial or adversarial mode of fact finding, once
this decision has been made it ought to be consistently applied to both parties.
9. In Brassey et al Commentary on the Labour Relations Act at A7:49 the following guidance with regard to
the choice between forms of procedure is provided:
“In adversarial proceedings the litigation process is in the control of the parties; the evidence that is
adduced is that which the parties choose to present and the arbitrator operates rather like an umpire. In
inquisitorial proceedings the arbitrator plays a more active role in the hearing, calling witnesses and
interrogating them in order to ascertain the truth … Where an arbitrator adopts an inquisitorial approach
to the arbitration, she cannot abandon the well established rules of natural justice; on the contrary, she
must be especially careful to guard against creating a suspicion of bias in the breasts of litigants who will
have little, if any, experience of a process so foreign to our system of adjudication. See Mutual & Federal
Insurance Co Ltd v CCMA & others [1997] 12 BLLR 1610 (LC) at 161920. ”
10. Where a Commissioner has adopted an adversarial approach, he or she should stand entirely away from
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inquisitorial style questioning of witnesses, leaving the parties to adduce and test evidence as they see fit,
alternatively, if he or she wishes to descend into the arena, this should be done in a consistent manner so as
to avoid giving rise to suspicion of bias.
11. It is now accepted in our law that bias will be held to exist not only where the decisionmaker was in fact
partial, but also where reasonable people might form the impression of bias. In the Mutual & Federal case
(supra) at 1618H1619C the Court, in the person of my brother Jali AJ, summarised the position as follows:
“The applicant’s Counsel submitted, and rightly so, that a Commissioner does not need to be biased but it is
the conduct of the Commissioner which goes towards creating a suspicion and perception of bias which
might be entertained by a lay litigant, which should be reviewed by this court. In this regard he referred me
to BTR Industries SA (Pty) Ltd v Mawu & others (1992) 131 ILJ 803. In this matter Hoechstra JA also set
out the test to be applied in assessing whether the Industrial Court could be said to have been biased. At
page 817CD he also said:
“For present purposes there may be adopted the definition of “bias” stated in the House of Lords by Lord
Thankterton in Franklin v Minister of Town & Country Planning 1948 AC 84 (HL) at 103. It was there
stated that the proper significance of the word … ‘is to denote the departure from the standard of even
handed justice which the law requires from those who occupy judicial office or those who are commonly
regarded as holding a quasi judicial office ’.”
At 822BC Hoexter JA also said:
“Provided the suspicion of partialities one which might reasonably be entertained by a lay litigant a
reviewing court cannot, so I consider, be called upon to measure in a nice balance the precise extent of the
apparent risks. If suspicion is reasonably apprehended then that is the end of the matter. I find myself in
complete agreement in what was forcibly stated by Edmund Davies L in the Metropolitan Property case at
314CD:
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‘With profound respect to those who are propounded the “real likelihood” test, I take the view that the
requirement that justice must manifestly be done operates with undiminished force in a case where bias is
alleged, and that any development which appears to emasculate that requirement should be strongly
resisted.’””
12. (See also President of the Republic of South Africa & others v SA Rugby Football Union & others 1999 (7)
BCLR 725 (CC) at 747C748F and Afrox v Laka (1999) 20 ILJ 1237 at 1242FH).
13. In the Mutual and Federal case (supra) this Court with reference to our common law regarding entering an
arena found aggressive crossexamination of a witness by a Commissioner to constitute an irregularity. The
comments of the court with reference to an earlier decision of the Appellate Division were as follows, at
1620G1621B:
“Whilst the Commissioner might be doing what is expected of him in terms of section 138 it is important
that he should be conscious of our common law regarding entering an arena. In the case of Solomon &
another NNO v De Waal 1972 (1) SA 575 (A) Potgieter JA dealt with the intervention by a Judge and the
descending by the Judge into the arena of conflict between the parties. Potgieter JA held at 580EH that:
“A perusal of the record reveals that the learned trial Judge often and, unfortunately, quite unwarrantedly,
intervened in the proceedings while defendant’s Counsel was cross examining plaintiff’s witness and during
the hearing of defendant’s case. It is unnecessary to quote the numerous passages in question. Suffice it to
say that during the hearing of the plaintiff’s case the learned Judge asked certain questions and made
certain observations which reflected favourably upon the plaintiff’s case and adversely upon the evidence
that the defendant’s Counsel asserted would be adduced for the defendants. Furthermore during the
hearing of the defendant’s case the learned Judge examined their witnesses in such a manner and made
observations in the course thereof of such a nature as to evince his ostensible disbelief, or at any rate, his
doubt about their credibility. Those and other interventions by the learned Judge must have been most
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harassing for the defendant’s Counsel, but fortunately he did not allow the actual presentation of the
defendant’s case to suffer thereby. However, by descending into the arena of the conflict of the parties in
that manner the learned Judge might have disabled himself from assessing with due impartiality the
credibility of the witnesses, the probabilities relating to the issues, and the amount of the damage sustained
by the plaintiff. Even if it were not so, such intervention might well have created the impression, at least in
the mind of the defendant, that he had also disabled himself and that he was favouring or promoting the
plaintiff’s cause and prejudging the case against the defendant. In that regard it must be borne in mind that
justice should not only be done but should manifestly and undoubtedly be seen to be done.””
14. On the basis of the transcript of the proceedings before the first respondent in this case I am entirely
satisfied that the first respondent questioned at least two of the applicant’s witnesses, namely Erasmus and
Hobden, in a manner which essentially amounted to crossexamination. For instance, the first respondent
put to Erasmus propositions of his (the first respondent’s) own making, interrupted Erasmus’ answers,
challenged Erasmus on the consistency of his answers with his previous evidence (when there was in fact no
real inconsistency), reminded Erasmus that he was under oath (thereby impliedly indicating that he doubted
his incredibility), and made “submissions” regarding the reasonable construction of his evidence. On one
particular issue where it is certainly arguable that Erasmus’ evidence was not inconsistent the first
respondent engaged vigorously with Erasmus and in a manner which would undoubtedly have created the
impression that he was prejudging the case against the interests of the applicant. On reading certain
passages of the record one would certainly form the view, without being informed otherwise, that the first
respondent was not in fact the arbitrator but the representative of the third respondent.
15. In regard to the evidence of Hobden the first respondent similarly engages in an interchange with him
apparently to clarify an issue but in such a manner so as to challenge his credibility. The manner of the
questioning is such that it appears to cross the line between seeking clarification and challenging the
witness’s version which is an unacceptable position for an impartial arbiter to adopt.
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16. The applicant alleges similar conduct on the part of the first respondent in dealing with the evidence of
Pieters, however, in the absence of a transcript of this part of the proceedings there is insufficient evidence
before this Court to substantiate the allegation.
17. When dealing with Lithoni, on the other hand, the first respondent, while he asked certain questions of him,
at no time challenged his evidence or acted in a manner which could be likened to crossexamination.
18. In all the circumstances I am satisfied that the behaviour of the first respondent, certainly insofar as the
evidence of Erasmus and Hobden is concerned, oversteps the boundaries of fair procedure in the conduct of
arbitration proceedings. I am satisfied that his descent into the arena gives rise to a reasonable apprehension
on the part of the applicant that he was not impartial. On the basis of the authority set out above it is clear
that this is a reviewable defect. If it does not amount to misconduct then it certainly amounts to a gross
irregularity in the conduct of the proceedings. While first respondent’s conduct was wrong and improper I
cannot find any basis on which to conclude that there was “personal turpitude” on his part. In the
circumstances, and it being unnecessary in order to decide this matter to make a finding of misconduct, I
decline to do so.
19. There appears to be no reason not to follow the normal rule in regard to costs in this matter as the
application was opposed by the third respondent until the commencement of the hearing before me.
20. In the circumstances I make the following order:
20.1 The arbitration award handed down by the first respondent under case number WE21751, dated 22
December 1999, is reviewed and set aside.
20.2 The matter is referred back to the second respondent for determination de novo by a Commissioner
other than the first respondent.
other than the first respondent.
20.3 The third respondent is ordered to pay the costs of this application.
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S STELZNER
Acting Judge of the Labour Court of South Africa
DATE OF HEARING: 11 SEPTEMBER 2000
DATE OF JUDGMENT: 15 SEPTEMBER 2000
APPEARANCE FOR APPLICANT: Mr MW Janisch (instructed by Cliffe
Dekker Fuller Moore Inc)
APPEARANCE FOR THIRD
RESPONDENT:
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