IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN CASE NUMBER: J1599/99
and J2435/99
In the matter between:-
SECURITY 21 PROTECTION SERVICES (PTY) LIMITEDApplicant
-and-
CCMA First Respondent
IKE NGWENYA, N.O. Second Respondent
TRANSPORT AND GENERAL WORKERS’ UNIONThird Respondent
J. MOKAEANE Fourth Respondent
Z. LEBAKENG Fifth Respondent
P. MOTLOUNG Sixth Respondent
A. KHUNONG Seventh Respondent
P. CHIBASE Eighth Respondent
JUDGMENT
FRANKLIN AJ
1.This is an application for the review of an arbitration award handed down by the Second Respondent in his capacity
as a CCMA Arbitrator (“the Arbitrator”). The application is opposed by the Third to Eighth Respondents
(hereinafter collectively “the Respondents”), on the grounds set out in a document headed “Notice to Oppose
Application on Review to Statement in terms of Rule 6(3) of the Rules of the Labour Court” . I deal below with
the status of that document. In addition to their opposition to the review application, the Respondents also seek
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an order that the arbitration award be made an order of this Court.
2.The review application was filed eighteen days outside the sixweek period prescribed by Section 145(1)(a) of the
Labour Relations Act, 66 of 1995 (“the LRA”). The Applicant seeks condonation of this late filing, which this
Court has the power to grant:
Queenstown Fuel Distributors CC v Labuschagne N.O. & Others 2000(21) ILJ 166 (LAC ).
3.An explanation for the delay in filing the review application is given at paragraphs 12 to 23 of the founding affidavit.
There the Applicant’s managing director sets out the various steps taken by it in reaction to the award. These
involved the taking of advice, deciding to review the award, and the preparation of the review application itself.
The explanation given is open to the criticism that a portion of the period of delay is left unexplained.
Nonetheless, having regard to the period of delay, the fact that the case for attacking the defects in the award is
cogent, and the consideration that to allow the award to stand would result in a miscarriage of justice, I have
concluded that condonation should be allowed. The reasons for these conclusions appear from what is set out
herein.
4.The facts material to the review application, as they appear from the Applicant’s founding affidavit, are in summary
these.
a.The Applicant provides specialized security and protection services to a number of clients in terms of written
agreements which are subject to varying periods of notice. As a result, the Applicant is operationally obliged to
employ guards on fixed term contracts which mirror the period of duration of the agreements concluded with its
respective clients. The fixed term contracts concluded between the Applicant and its employees therefore
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terminate if and when the agreement between the Applicant and the client to which the relevant guards have
been deployed, terminates. The Fourth to Eighth Respondents (“the employees”) were employed by the
Applicant upon the terms of the specimen agreement attached to the papers as annexure “FJB2”, at Thames
Wire & Cable, a division of Winding Wires (Pty) Limited (“Thames”). The fixed term contract describes the
contract period as being “until such time when contract is terminated” .
b.On 23 January 1998, Thames notified the Applicant of the termination of its agreement with the Applicant with
effect from 20 February 1998. As a result, the Applicant sent to each employee an identical letter dated 28
January 1998 in the following terms:
“TERMINATION OF CONTRACT
We have been informed by Thames Wire & Cable (Pty) Ltd. that their contract with us will be terminated on 21
February 1998 at 06:00.
With regret we have to inform you that your contract with Security 21 will be terminated on the same date.
You are herewith requested to report at 32 Smuts Avenue office on Monday 23 February 1998 to arrange for
possible continued employment. If no suitable employment can be found, please hand in your uniform as soon
as possible thereafter so that your salary can be finalised for payment on Friday, 27 February 1998.”
c.In a later letter dated 30 January 1998, Thames gave notice of termination of the contract as from 16h00 on the 30 th of
January 1998. The Applicant nonetheless paid the employees up until 20 February 1998.
d.On 29 January 1998, at an ordinary monthly meeting which took place between the Applicant and the Third
Respondent (“the union”) which represents, inter alia , the employees, the termination of contracts between the
Applicant and two of its clients, Thames and Suncrush, were discussed. Minutes of that meeting are attached to
the founding affidavit (annexure “FJB6”). The relevant portion of the minute is to this effect:
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“1. CONTRACT TERMINATIONS
1.1 Suncrush
The company has been notified of the termination of the contract with Suncrush. The required notices of
termination of employment have been issued to all employees concerned. The chairman stated that it had
already been decided that alternative employ would be found for those effected. As from Monday 02/02/98
those guards will be reallocated on an adhoc basis until suitable posts can be found for them. All employees
at the site successfully underwent polygraph tests.
1.2 Thames Wire & Cable
Once again all employees at the site were issued with the required notices of termination of employment. The
Chairman stated that the contract is terminated effective 21/02/998. The guards were also polygraph tested
however with mixed results which indicated that some guards may have been implicated in dishonesty. The
contract was lost due to unsatisfactory job performance.
The question of reemployment of those guards will be addressed at the next meeting. T.G.W.U. will advice
Security 21 of a suitable date before 21/02/98 (action P. Masupa).”
e.None of the employees in the present application were employed at the Suncrush site. The union did not revert to the
Applicant as agreed for a followup meeting in relation to the Thames employees, and none of the employees
presented themselves on Monday 23 February “to arrange for possible continued employment” as
contemplated in “FJB4”.
f.Approximately four months later, on 17 June 1998, the union referred to the CCMA a dispute on behalf, inter alia , of
the employees in this application. The dispute was said to be about “unfair dismissal of Zacharia Lebokeng,
Paul Moutloung and other seven guards. After the client have terminated the contract with the company.
(Security 21).” In paragraph 5 of form LRA7.11, it was stated that the dispute had arisen on the 10 th of June
1998.
1998.
5.In a very brief award, the Arbitrator deals in one paragraph with an “analysis of evidence and argument” , and on the
strength thereof found that the dismissal of the employees was unfair. It is apparent from his award that the
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Arbitrator based that conclusion on a finding that the parties had concluded an agreement for the employment
of the employees, and that such agreement superseded the termination clause of the employees’ fixed term
contracts. That finding is demonstrably incorrect and based upon the situation pertaining to the Suncrush, and
not the Thames, employees. In the case of the former group, the minutes of the meeting of 29 January 1998
record that “it had already been decided that alternative employ would be found for those effected” . The
situation was different for the Thames employees in respect of whom, according to the minutes, there was no
question of an undertaking to employ them at other sites.
6.The Applicant has raised a number of grounds upon which it contends the award should be reviewed and set aside.
a.The first relates to the question of the jurisdiction of the CCMA to have entertained the dispute at all. The employees’
employment was terminated with effect from 21 February 1998. However, in their form 7.11 referral to the
CCMA, they alleged that the dispute arose on 10 June. That allegation (the Applicant asserts) was factually
incorrect, and if the correct date (21 February 1998) had been taken into account, the union’s referral of the
dispute to the CCMA was outside of the 30day time limit prescribed by Section 191 of the LRA. In the
absence of condonation for that delay, so the Applicant argues, the CCMA lacked jurisdiction to entertain the
dispute.
b.The second point also concerns a matter of jurisdiction. It is to the effect that the dispute alleged by the union in the
form 7.11 related to termination of the employees’ employment for operational requirements, a matter for this
Court, and not the CCMA: Section 191(5)(b) of the LRA.
c.Apart from the jurisdictional points, the Applicant also attacks the award on its merits. Having regard to the
conclusion which I have reached on the merits of the Arbitrator’s award, it is unnecessary for me to deal with
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the points relating to the Arbitrator’s jurisdiction.
7.As I understand his award, the Arbitrator bases his finding of unfairness upon the proposition that the Applicant had
agreed to place the employees in alternative employment and/or that an expectation of continued employment
had been created. It is clear that these conclusions were manifestly incorrect. What the Arbitrator did was to
confuse the situation of those guards stationed at Suncrush with those stationed at Thames. It is apparent from
the minutes of the meeting of 29 January 1998 that the Applicant undertook to find alternative employment for
employees engaged on the Suncrush site, but that no agreement or expectation of continued employment
existed in respect of the employees engaged on the Thames site. Only the possibility of alternative employment
was raised, but this never eventuated. That being so, no factual basis existed for a finding of an unfair dismissal,
and the basis that was relied upon by the Arbitrator was fundamentally wrong. The Arbitrator’s award is in the
result not justifiable in relation to the reasons given for it, and falls to be reviewed and set aside:
Carephone (Pty) Ltd v Marcus N.O. & Others (1998)19 ILJ 1425 (LAC);
Shoprite Checkers (Pty) Ltd v Ramdaw N.O. & Others (2001)22 ILJ 1603 (LAC) .
8.Quite apart from the aforesaid, the Arbitrator also reinstated the employees, who had previously been employed on
fixed term contracts, on terms and conditions of employment which appear to be of unlimited duration.
9.The version of events relied upon by the union and the employees is set out in the document entitled “Notice to
Oppose Application on Review to Statement of Claim in terms of Rule 6(3) of the Rules of the Labour Court”
referred to in paragraph 1 above. I am unable to take account of that version since it is not on oath as is required
by Rule 6(4): a fundamental point correctly taken by the Applicant.
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10.Since the review application is successful, the application by the union and the employees to have the award made
an order of Court must fail.
11.In my view, this is one of those cases where it would be appropriate for this Court to substitute its decision for that
of the Arbitrator: if the Arbitrator had relied upon the correct portion of the minutes of the meeting of 29
September, it is inevitable that he would have found for the Applicant. Little point would then be served in
referring the matter back to him. The Applicant also submitted that if no reliance is placed by the Court on the
Respondents’ “answering papers” , no costs order should follow. I agree.
12.In the result, I make the following order:
a.The Applicant’s late filing of its review application under case number J1599/99 is condoned.
b.The arbitration award dated 5 February 1999 under case number GA36685 is hereby reviewed and set aside.
c.The termination of the employment of the Third to Eighth Respondents is found to be fair.
A.E. FRANKLIN SC Acting Judge of the Labour Court
For the Applicant: Mr M. Van Rensburg of
Webber Wentzel Bowens
For the Third Eighth Respondents: Mr P. Masupha of
the Third Respondent
Date of Judgment: 4 September 2001
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