D975/00-NB/CD JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
REPORTABLE / REVISED
DURBAN
CASE NO D975/2000
DATE OF HEARING: 28/03/01
DATE OF JUDGMENT: 30/03/01
DATE EDITED: 19/04/01
In the matter between
KWAZULU TRANSPORT (PTY) LTD Applicant
and
PETER SIMON MNGUNI 1 ST Respondent
BHEKI KHUMALO N.O. 2 ND Respondent
COMMISSION FORR CONCILIATION,
MEDIATION & ARBITRATION (CCMA) 3 RD Respondent
________________________________________________
BEFORE THE HONOURABLE MS JUSTICE PILLAY
________________________________________________
ON BEHALF OF APPLICANT : MR M R KYLE
ON BEHALF OF RESPONDENTS : MR MATHENJWA
ON RESUMPTION ON 30 MARCH 2001
MR M R KYLE APPEARS FOR APPLICANT
JUDGMENT 30 MARCH 2001
PILLAY J This is an application to review and set aside the ruling and ensuing award of the
second respondent Commissioner, for refusing to recuse himself.
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It was argued in limine that the application should have been brought in terms of section
145, and not section 158(1)(g) of the Labour Relations Act No 66 of 1995 (‘the LRA’).
Section 145 deals with the review of awards. Section 158(1)(g) empowers the Court to
review the performance of any other function or act of the Commission for Conciliation,
Mediation and Arbitration (‘the CCMA’).
An award is a decision which is issued at the conclusion of arbitration proceedings. It must
be accompanied by brief reasons. It must also be signed by the commissioner who issues it
[section 138(7)(a)]. A ruling is a decision on a limited issue, usually made at the conclusion
of interlocutory proceedings. It could, in some instances, have the effect of concluding the
entire proceedings. A ruling may be made before arbitration commences or during the course
of it.
In this case, the applicant wrote as soon as it received notice of the arbitration to the
Convening Senior Commissioner, requesting that another commissioner be appointed to hear
the matter. The Convening Senior Commissioner could have acted on the request. His action
would then have been reviewable in terms of section 158(1)(g). However, section 145(2)(a)
provides:
"A defect referred to in subsection (1) means,
(a) that the commissioner,
(i) committed misconduct in relation to the
duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration proceedings ; or
iii) exceeded the commissioner's powers; or..."
(my underlining)
Furthermore, in Ruijgrok v Foschini (Pty) Limited and Another 1999 (2) ILJ 635 (LC), BASSON
J held that a review of the condonation application was a review of an award, as a
commissioner exercised a judicial discretion under section 191(2) of the LRA. The learned
commissioner exercised a judicial discretion under section 191(2) of the LRA. The learned
Judge also relied on the fact that the commissioner in that case was "conducting arbitration
proceedings". As the LAC had held in Carephone (Pty) Limited v Marcus NO & Others 1998
(19) ILJ 1425 (LAC) that arbitrations must be reviewed in terms 145 and not 158(1)(g), the
learned Judge proceeded in terms of section 145.
SONI AJ, on the other, hand found that an application for rescission should have been
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brought under section 158(1)(g). ( Day and Night Investigators CC v Ngoasheng and Others
2000 (21) ILJ 1084 (LC), Byrne v Day and Investigators CC .) Applications to review the
refusal of condonation or rescission are usually heard in terms of section 158(1)(g).
Whether section 145 or section 158(1)(g) applies cannot depend on whether a ruling is
made during the conduct of arbitration proceedings or outside of them. If it were accepted
that section 145(2)(a)(ii) applies to rulings made during arbitration proceedings, then the ruling
would be reviewable only on the limited basis of a gross irregularity. It would not be
reviewable on the grounds of misconduct or a commissioner exceeding his powers. To limit
the grounds of review of a ruling in such a way would be absurd.
Furthermore, merely because a ruling was made within or outside arbitration proceedings
cannot be the basis on which the grounds and the test for review should be determined. It
must be the nature of the administrative act that determines whether section 145 or 158(1)(g)
is to apply. If the act is a ruling then, irrespective of whether it is made in the conduct of
arbitration proceedings or outside of it, section 158(1)(g) applies.
I may be wrong in concluding as aforesaid. I will therefore approach the review on the
more limited grounds of section 145 and, if necessary thereafter, on the wider grounds of
section 158(1)(g).
I turn to the law and practice pertaining to applications for recusal. The test for recusal,
which is wellestablished, is summarised thus:
"The question is whether a reasonable
objective and informed person would on
the correct facts reasonably apprehend
that the Judge has not or will not bring an
impartial mind to bear on the adjudication
of the case, that is a mind open to persuasion
by the evidence and the submissions of counsel."
by the evidence and the submissions of counsel."
(The South African Rugby Football Union and Others v President of the Republic of South
Africa and Others 1999 (4) SA 147, 1999 (7) BCLR 725 (CC) at paragraph 48; South African
Commercial Catering and Allied Workers Union v Irving & Johnson page 2021 ILJ 1583 (CC);
S v Roberts 1999 (4) SA 915 (SEA)and BTR Industries (SA) (Pty) Limited and Others v Metal
and Allied Workers Union and Another 1992 (3) SA 673.)
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The test accordingly sets a high threshold for an applicant in a recusal application to
meet. Where that threshold is pitched may vary depending on the circumstances of each
case and the forum where the application is made. Thus it will be pitched much higher for an
appellate bench where the personal attributes, traits and dispositions of each judge is reduced
by the collegial nature of the forum. Appellate judges are also entrusted with a higher level of
judicial office and are also generally more experienced in the craft of judging. ( SACCAWU v
Irving & Johnson above). For this reason it would be more difficult to have an appellate judge
recused than a trial judge.
Similarly, adjudicators who are more experienced in labour dispute adjudication would be
able to resist an application for recusal more easily than those who are not. The probability
of a reasonable apprehension of bias is greater if the adjudicator is less experienced or is
imposed on the parties than when the adjudicator is more experienced or chosen by the
parties. The timing of the application may also indicate whether it is made bona fide or in
order to delay the proceedings. Far from being a comprehensive list of considerations in an
application of recusal, the aforegoing are probably pertinent to CCMA proceedings more
frequently than to other proceedings.
Even though the test may be pitched at different levels in the hierarchy of the dispute
resolution system it remains the same in the sense that an applicant will always have to show,
in essence, a reasonable apprehension of bias on the part of a party to the proceedings.
Another consideration is the practice that prevails in the industrial relations community
where practitioners service employers, employees and their respective organizations, and
also preside as independent disputeresolvers. Those involved in dispute resolution services
have largely accepted such a culture, incestuous as this may seem to the purists.
In Appel v Leo and Another 1947 (4) SA 766, the court held that:
“though there was no probability or possibility that the arbitrator in the case would be biased in
fact nevertheless the Court, in applying this test and approaching the question not from the
point of view of a lawyer but from that of a reasonable lay litigant, granted an application for
the recusation of an arbitrator, where the chosen arbitrator had appeared as Senior Counsel
for the respondent in two interlocutory applications on the same facts as those involved in the
applicant’s present claim for damages against the respondent for defamation. The Court
considered that the fact that Counsel had once been briefed by one of the parties could not
D975/00-NB/CD JUDGMENT
indicate any possibility of bias, but it was not the possibility of prejudice in fact, but whether a
reasonable person in the position of the applicant might think that he would not get a fair trial,
which was the test to be adopted.”
This case was cited with approval more recently in Orange Free State Provincial
Administration v Ahier and Another Parys Municipality v Ahier and Another 1991(2) SA 608.
A person who renders services not only as a commissioner but also as a representative of
one of the parties before the CCMA should recuse himself or herself without hesitation if the
apprehension of bias is based on the dual role played by the commissioner. A commissioner
who has litigated against a party who is scheduled to appear before him or her should
disclose that fact immediately she or he receives notice of the hearing and offer to recuse
herself or himself. An early and timeous response by the commissioner would avoid delay
and the costs of an aborted process. Even if the parties wish the commissioner to remain
seized with the matter, it is still within the commissioner's discretion to recuse herself or
himself. Commissioners must recuse themselves if they believe that they may not bring an
impartial mind to bear on the matter.
The applicant had applied for the recusal of the Commissioner in this case on the
grounds that it had a reasonable apprehension of bias based on the following:
a) The Commissioner had represented employees in labour litigation against the
applicant on at least three occasions in July 1996, January 1998 and June
2000. In 1996 and 2000 he styled himself as "Tugela Labour Consultants". In
1998 he communicated under the letterhead of "Mbube Security and Labour
Consultants"
b) The first respondent, Mr Mnguni, had been a shop steward of DELATUSA, the
Consultants"
b) The first respondent, Mr Mnguni, had been a shop steward of DELATUSA, the
trade union. He had in that capacity referred the three disputes above to the
Commissioner in his capacity as a labour consultant.
c) Because the employees in the three disputes were members of DELATUSA the
applicant alleged that the Commissioner had a relationship with DELATUSA.
The Commissioner reacted to the application for recusal as follows:
"I considered and rejected the application. In terms of CCMA Code of Conduct I am bound to
disclose any relationship with either of the parties, and recuse myself if necessary. But in this
case I have no relationship with either DELATUSA or the applicant employee.
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The two of the mentioned cases where I allegedly represented employees are farfetched, in
that one was at the former Industrial Court and one is at the Labour Court where I have no
right of appearance. I assisted employees who approached me individually either by
completing the necessary documents or referring them to where they could be assisted. I
therefore rejected that the reasons advanced would obscure my judgment in favour of the
employee."
In these proceedings the applicant filed supporting documents, from which it would
appear that the Commissioner, acting against the applicant as consultant, had made demands
and referred a dispute for conciliation. He had also applied for condonation. The Industrial
Court matter was a substantial interim reinstatement application. This matter was hardly "far
fetched". Furthermore, the litigation spanned over a period of about four years, and persisted
as recently as June 2000. The arbitration award under consideration is dated 1 June 2000.
The Commissioner clearly attempted to down play his role as a representative of employees
in litigation against the applicant.
He categorically denied in the award that he had any relationship with DELATUSA or
Mr Mnguni. His denial was couched in the present tense. Strictly, it meant that at the time of
the award the Commissioner had no relationship with DELATUSA and Mr Mnguni. Mr Kyle,
for the applicant, submitted that this was a deliberate misrepresentation, and not a mere
failure to disclose.
The Commissioner was aware of the Code of Conduct for Commissioners and had
considered it when making his ruling. The Code prescribes at length the obligations of a
commissioner when faced with a conflict of interest and the duty of disclosure. The spirit of
the Code is that there must be maximum disclosure of any facts that could reasonably lead to
the Code is that there must be maximum disclosure of any facts that could reasonably lead to
a perception of bias by a party.
The concerns relating to DELATUSA were pertinently raised. The Commissioner's
omission to disclose his relationship in the past with DELATUSA was, at best, negligent and,
at worst, a deliberate misrepresentation. Such misrepresentation on any basis amounts to
misconduct. The Commissioner's failure to tender his recusal and his refusal to do so on
application, is also gross misconduct in relation to his duties as a commissioner and arbitrator.
It creates doubt about the Commissioner's suitability to serve as such. Serious allegations
are made in the applicant's founding affidavit supported by annexures. The Commissioner
D975/00-NB/CD JUDGMENT
ought to have filed an affidavit explaining his involvement in the various matters. Of particular
note is an affidavit filed as an annexure to the replying affidavit, namely Annexure RA1, in
which the Commissioner deposed to the following statement,
"I was until December 1999 an official of
DELATUSA, the trade union that represented
Zithulele Mbhele in the arbitration proceedings
before the Commission for Conciliation
and Arbitration."
The applicant also alleged in its founding affidavit at paragraph 25 as follows,
"I respectfully submit that it is quite clear that the second respondent has always had a
relationship with DELATUSA up until the recent deregistration of DELATUSA (of which the
first respondent was a member)." (my underlining)
These allegations, amongst others, cry out for a response from the Commissioner which he
failed to provide in these proceedings.
Accordingly, the Court directs the Registrar of the Labour Court to bring this judgment
to the attention of the Director and the Convening Senior Commissioner, KwaZuluNatal, of
the CCMA so that they could enquire into the suitability of the Commissioner to remain on the
CCMA panel of Commissioners.
The Court grants an order in the following terms:
i. The Commissioner's ruling regarding his refusal to recuse himself is hereby reviewed and
set aside.
ii. The arbitration award under case No KN40275 is hereby reviewed and set aside.
iii. The costs of the application are to be borne by the first respondent and the
Commissioner, jointly and severally, the one paying, the other to be absolved.
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TRANSCRIBER'S CERTIFICATE
I, the undersigned, hereby certify that so far as it is audible, the foregoing is a true and correct
transcription of the proceedings recorded by means of a mechanical recorder in the matter of:
KZN TRANSPORT v MNGUNI & ANOTHER
________________________________________________
CASE NO : D975/00
COURT OF ORIGIN : LABOUR COURT, DURBAN
TRANSCRIBER : N BINEDELL
DATE COMPLETED : 17 APRIL 2001
No of Tapes : 1
Number of Pages : 11
SNELLER RECORDINGS (PTY) LTD
DURBAN
TEL: 0312665452
FAX: 0312665459
D975/00-NB/CD JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
REPORTABLE / REVISED
DURBAN
CASE NO D975/2000
DATE OF HEARING: 28/03/01
DATE OF JUDGMENT: 30/03/01
DATE EDITED: 19/04/01
In the matter between
KWAZULU TRANSPORT (PTY) LTD Applicant
and
PETER SIMON MNGUNI 1 ST Respondent
BHEKI KHUMALO N.O. 2 ND Respondent
COMMISSION FORR CONCILIATION,
MEDIATION & ARBITRATION (CCMA) 3 RD Respondent
________________________________________________
BEFORE THE HONOURABLE MS JUSTICE PILLAY
________________________________________________
ON BEHALF OF APPLICANT : MR M R KYLE
ON BEHALF OF RESPONDENTS : MR MATHENJWA
EXTRACT:
Judgment Only
TRANSCRIBER
SNELLER RECORDINGS
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