IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JR
822/01
Heard on : 7 August 2002
Delivered on : 26 August 2002
In the matter between:
TREVOR OWEN MOULD Applicant
and
MR. P ROOPA N.O. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION Second Respondent
LONMIN PLATINUM LIMITED also
known as LONMIN PLATINUM and/or
LONMIN PLATINUM MINES Third Respondent
J U D G M E N T
PILLAY , J
1. This is a review of the ruling of the first respondent Commissioner, who
refused condonation of the late delivery of the referral to arbitration.
2. Whether this review should proceed in terms of section 145 or section
158(1)(g) of the Labour Relations Act No 66 of 1995 (the LRA) was an
issue in these proceedings. Mr Howitz submitted that once the conciliation
phase had passed, and a certificate in terms of section 135(5)(a) had been
issued, the ensuing process was arbitration, irrespective of whether it was
an application for condonation. A condonation application was, it was
submitted, an act performed by the Commissioner in the course of his
duties as an arbitrator in terms of section 145(2)(a)(ii) and had final effect.
3. Not every process that follows the issue of a certificate can be an
arbitration. The LRA differentiates between arbitration and other acts in
sections 145 and 158(1)(g) respectively.
4. While processes under both sections may be adjudicative and similar, their
form, content and purpose are not the same. The fact that arbitration and a
ruling can have final effect does not alter the distinction between these
processes. An application for condonation is not an arbitration and its
outcome is not an award, but a ruling. A ruling, like any act other than an
award, must be reviewed in terms of section 158(1)(g) of the LRA.
(Carephone (Pty) Ltd v Marcus N.O. & Others (1998) BLLR 1093 (LAC);
Kwazulu Transport (Pty) Ltd v Mnguni & Others (2001) 22 ILJ 1646 (LC);
Els Transport v Du Plessis & Others (2001) 22 ILJ 1390 (LC)) I respectfully
disagree with the approach in Ruijgrok v Foshini (Pty) Ltd & Another
(1999) 20 ILJ 635 (LC).
5. Section 158(1)(g) however, must be interpreted as being “subject to
section 145. ( Carephone, above) But, it is not limited to the grounds of
review in section 145. The test common to both processes is, as correctly
relied upon by Mr Snider, that of justifiability and rationality. (Carephone,
above; Kotze v Minister of Health 1996 (3) BCLR 417 (T)). That is the test
I intend to apply in this case.
6. The applicant received a certificate of nonresolution of the dispute
immediately after conciliation on the 14 th June 2000. It did not bear the
stamp of the CCMA, the second respondent. The applicant filed the
referral to arbitration on 13 th September 2000, ninetyone days after the
certificate was given to him without demur. On the direction of the CCMA,
the applicant applied for condonation.
7. The first ground of review was that the referral was not late and that the
application for condonation was not necessary, as the certificate of non
resolution of the dispute had not been issued. The issuing of the
certificate, it was submitted, included making it available to the CCMA and
ensuring that it was stamped in terms of Regulation 8 (2) of the
Regulations to the LRA. The receipt of a signed certificate did not amount
to issuing of the certificate as it had not yet been stamped and filed with
the CCMA. It is a wrong such as that contemplated in section 158(1)(a)(iii)
which must be set aright by the Labour Court. So Mr Howitz submitted for
the applicant.
8. Mr Snider for the respondent countered, firstly, that this point was not
canvassed before the Commissioner. It was therefore new material, which
could not found a valid ground of review. Secondly, there was no direct
case law on the point. This court was being asked in this application to
make such law. It could not be expected of the Commissioner, therefore,
to apply law that did not exist. Thirdly, even if the Commissioner erred, his
ruling is not a reviewable irregularity. Fourthly, the cases relied upon by
the applicant in support of this ground, are distinguishable.
9. Contrary to Mr Howitz’s submission, section 158(1)(a)(iii) is not an
omnibus to ride roughshod over wellestablished principles of the common
law, labour law and practice. The Commissioner was not called upon to
consider the submissions made in support of this ground and accordingly
made no decision based on them. It is trite that there is nothing to review.
This ground of review must therefore be dismissed.
10. In Vista University v Jones and Another (1999) 20 ILJ 939 (LC) , Basson J
permitted argument about jurisdiction of the CCMA when it was not
canvassed in affidavits but raised for the first time in supplementary heads
of argument. It is hardly support for Mr Horwitz’s proposition that a party
can on review raise new material not presented at the original tribunal.
11. The applicant has also not established that the CCMA and the
Commissioner committed a wrong such as that contemplated in section
158 (1) (a)(iii), by calling for and ruling on the application for condonation.
Once a certificate is completed and signed by the Commissioner, three
distinct steps are followed: the issuing, service and filing of the certificate.
The issuing of the certificate does not include its service, filing or stamping.
It is the act which simply makes available the signed certificate to the party
entitled to receive it. ( Freestate Buying Association Ltd t/a Alpha Pharm v
Saccawu And Another (1999) 3 BLLR 223 (LC)) A less formal approach
than that applied in Chasen v Ritter 1992 (4) SA 323 (SE) was followed in
the Protea Assurance Co. Ltd v Vinger 1970 (4) SA 663 (O) where it was
held that the issue of summons merely meant to send or hand out, publish
or put in circulation; the official stamp was not required. Nothing in section
135(5) invokes the restrictive interpretation that Mr Howitz seeks to place
on it. (Queenstown Fuel Distributors CC v Labuschagne N.O & Others
(2000) 1 BLLR 45 (LAC)
12. Whether the certificate is made available before or after it is filed in the
CCMA, is immaterial. The issuing of the certificate immediately after the
conciliation is efficient. To require the further steps of filing and stamping
the certificate as prerequisites for issuing it could result in delay and costs
for the CCMA and the parties.
13. If Mr Howitz’s approach were to be followed, parties may not know when a
certificate is issued. They may only become aware of the filing and
stamping of the certificate after these steps are taken, by which time
prescription could already have started to run.
14. Whilst Mr Howitz’s submission seeks to advance the cause of his
individual client, it is shortsighted as it does not benefit the vast majority of
litigants who depend on the certificate being issued expeditiously after
conciliation.
15. Mr Howitz’s submissions therefore, about sections 135(5) and 158(1)(a)
(iii), are not supported by a proper construction of these sections, the case
law and the requirements of efficient dispute resolution. The proposition
that condonation was not required at all, must therefore fail for the further
reason that the certificate was properly issued on 14 June 2000.
16. The second ground of review was that the Commissioner committed
misconduct as an arbitrator in that, he relied upon inadmissable evidence
in assessing the applicant’s prospects of success on substantive issues.
The respondent’s representative, C.A.J Potgieter, was not authorised by
resolution to depose to an answering affidavit. A signed resolution passed
by the directors of Western Platinum Limited subsequent to the deposition
could not, it was submitted, cure the defect.
17. Somewhat loftily, considering that the applicant’s own nonperformance
within time limits triggered this application, Mr Howitz persisted that when
an act has to be done within a fixed time, performance thereof by an
unauthorised agent cannot be ratified after the lapse of such fixed time, to
the prejudice of another who has acquired some right or advantage from
nonperformance within the fixed time. The right he referred to was that of
having the condonation application heard on an unopposed basis.
18. The time limit for filing the answering affidavit had been fixed by the
Commissioner. Despite the Commissioner having given directions about
the filing of further affidavits, the respondent deviated from these directions
by filing its affidavit out of time and by filing further affidavits, which were
not authorised. The Commissioner did not permit the applicant to respond
to the unauthorised affidavit, nor did he deal in any way with the third
respondent’s noncompliance with the time limits stipulated in his
directions. So it was submitted for the applicant.
19. At the condonation application hearing, the applicant objected to
Potgieter’s authority to depose to the answering affidavit as the resolution
was unsigned. This was not vigorously pursued in its pleadings in this
application where he indicated that he neither admitted nor denied
Potgieter’s authority but put the third respondent to the proof thereof.
Despite this, Mr Howitz persisted in arguing this ground of objection.
20. The third respondent had handed to the Commissioner a signed resolution
at the hearing. It was proof of the authority that the applicant sought. The
third respondent explained the logistical difficulties it had experienced in
delivering a signed resolution simultaneously with its answering affidavit.
The applicant ought to have let the matter rest there. Instead, Mr Howitz
now submits that the resolution could not validly operate retrospectively to
ratify the answering affidavit.
21. The applicant acquired no vested or substantive right to have his
application for condonation heard unopposed by the Commissioner. The
general proposition is stated thus in Finbro Furnishers (Pty) Ltd v Peimer
1935 CPD 378 at 380 :
“ When an act has to be done within a fixed time, performance of that act by an
unauthorised agent cannot be ratified by the principal after the lapse of such fixed
time to the prejudice of another who has acquired some right or advantage from
nonperformance within the fixed time.”
22. But, Goldstone J in Baeck & Co. v Van Zummeren 1982 (2) SA 112 (W)
disagreed with Kannemeyer J in South African Milling Co (Pty) Ltd v
Reddy 1980 (3) SA 431 (SE) by holding that ratification of an unauthorised
act operated retrospectively to cure the original lack of authority. Harms JA
in Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) agreed
with Conradie J in Merlin Gerin (Pty) Ltd v All Current and Drive Centre
(Pty) Ltd 1994 (1) SA 659 (C), by accepting that a litigant does not have a
right to prevent the other party from rectifying a procedural defect.
Contrary to Mr Howitz’s submission, the Smith case is hardly support for
his proposition.
23. Irrespective of whether an application for condonation is opposed or
unopposed, the Commissioner exercises an independent discretion as to
whether to grant or refuse it. The Commissioner could have dismissed the
application on the applicant’s version alone as he was not satisfied with
the explanation for the delay.
24. Mr Potgieter was the human resources manager. He had personal
knowledge of facts material to the condonation application. These two
factors enabled him to adduce evidence to the Commissioner. His
deposition was an ordinary act, authority for which was implied from his
status with the third respondent. The resolution was merely corroboration
of his authority. (Glofinco v Absa Bank Ltd T/A United Bank 2001 (2) SA
1048 (W)). Even if I am wrong about this, retrospective ratification of the
authority of a representative is permissible. (Kritzinger v Newcastle Local
Transitional Council 2000 (1) SA 345 (N)); National CoOp Dairies Ltd v
Smith 1996 (2) SA 717 (N)).
25. The third ground of review was that the Commissioner admitted the
allegations of misconduct in the answering affidavit which were hearsay as
they were not corroborated by affidavits of the complainants. The contents
of the answering affidavit influenced the Commissioner to find that the
prospects of success on the substantive issues depended on allegations of
misconduct. If the Commissioner had struck out the third respondent’s
answering affidavit, either because it was not authorized by resolution, or
that it was delivered late, or because it contained hearsay evidence, then
the Commissioner would have had only the evidence of the applicant
about the substantive fairness of the dismissal. So it was submitted.
26. Mr Potgieter testified about evidence that was led in his presence at the
disciplinary enquiry. That is direct evidence of what transpired at the
enquiry. He did not purport to be a witness to the actual acts of
misconduct. By insisting that the third respondent ought to have delivered
affidavits by the complainants and witnesses to the misconduct it is
obvious that Mr Howitz fails to distinguish between the relevance of the
evidence of the enquiry and that of the misconduct.
27. In my view the underlying reason for the applicant objecting to the
admissibility of the answering affidavit was because it provided credible
evidence of his misconduct.
28. Mr Howitz relied on Van Dyk v Autonet (A Division Of Transnet Limited)
2000 (21) ILJ 2484 (LC), as providing the armour against disclosure of the
applicant’s defence.
29. The requirement of establishing prospects of success was confirmed in
Melane v Santam Insurance Co. Ltd. 1965 (2) 135 AD thus:
“In deciding whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially upon a consideration of all
the facts, and in essence it is a matter of fairness to both sides. Among the facts
usually relevant are the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case……if there are no
prospects of success there would be no point in granting condonation….. I would
add that discursiveness should be discouraged in canvassing the prospects of
success in the affidavits.“
30. The fact that the onus of proving the fairness of the dismissal rests on the
employer, does not relieve an applicant in a condonation application of the
obligation of proving that it has prospects of success. It means that the test
for prospects of success will be applied in the context of a dismissal
dispute where the onus of proving the fairness of the dismissal rests
ultimately on the respondent employer. The test is not that it will, but could
succeed. It is a preliminary and not final assessment of the merits of an
applicant’s case.
31. Van Dyk above, was an application for condonation. Wagly J said the
following:
“[15] Third respondent's further submission is that the application should be
refused because applicant has failed to satisfy this court that it has any prospects
of success. In matters such as this, which relate to unfair dismissal all that the
applicant is required to satisfy this court about is that he was dismissed and that
the dismissal was unfair . The onus of proving the fairness of a dismissal is upon
the respondent. In such an event to require the applicant to allege that he has
good prospects of success is in effect requiring of him to anticipate what evidence
the respondent may come up with and deal with that this cannot be tenable.
Had the applicant in a condonation application been a 'defendant' then
consideration of prospects of success would no doubt play a meaningful role but I
do not consider the factor relating to prospects of success as a deciding factor
save that an applicant in a matter such as this must satisfy this court that he was
in fact dismissed and that the dismissal was based on such grounds over which
the court has jurisdiction and that he believes that the dismissal was unfair. The
fact that the applicant was in fact dismissed, is not disputed by the respondent,
the fact that this court has jurisdiction over the dispute is not in issue. The belief
by the applicant that the dismissal was unfair is self evident, to expect anymore of
an applicant is as stated earlier to expect the applicant to anticipate the
respondent's case which I believe would be placing a burden on an applicant
which is not required by the LRA.” (my underlining)
32. The learned judge expressed a similar view in Jamela v Accord (2000) 5
LTD 654 (LC) . He accepts that an applicant has to satisfy two
requirements:
a. that he was dismissed;
b. that the dismissal was unfair.
33. I imply from this that the learned Judge accepts that the requirement
imposed by the Appellate Division in Melane v Santam above, about proof
of the prospects of success, is not dispensed with in an application for
condonation by a dismissed employee. His further statement that the onus
of proving the fairness of a dismissal is upon the respondent must be a
reference to the onus when the substantive dispute is ultimately
adjudicated.
34. My learned brother’s judgment cannot be interpreted as a licence to
remain silent about the prospects of success. The facts leading to the
dismissal and the reasons why the applicant alleges that the dismissal was
unfair should be pleaded in such detail as to enable the court to assess
whether, prima facie, there are prospects of success. An applicant must
provide in an application for condonation such information about the
prospects of success that, if proved in the main action, it would be entitled
to relief. Thus, if an applicant can anticipate the opposition’s evidence it
must plead it in its founding affidavits. If it cannot, then it must deal with it
in reply. This approach does not shift the onus of proving the fairness of
the dismissal away from a respondent employer.
35. Human nature is such that a party who genuinely believes that it has been
unfairly treated, would be inclined to vent its dissatisfaction as often as it
can. Litigants who fail to plead adequately or at all the prospects of
success, may cause the Court to draw an adverse inference.
36. The applicant was aware of the charges against him. The facts
underpinning those charges emerged at the disciplinary enquiry. He ought
to have anticipated that the third respondent might plead its version fully.
His version should have been set out in sufficient detail in his founding
affidavit. If he did not anticipate the contents of the answering affidavit,
then he should have dealt with the allegations fully in his reply.
37. The charges included sexual harassment and behaviour not befitting a
senior employee. Detailed evidence of the complainants and of the
corroboratory witnesses was led at the enquiry. They testified inter alia that
: The applicant left love notes on his assistant’s computer in full view of
colleagues. This was humiliating. His conversations often centred around
sex, which the assistant found disconcerting. He persisted in his conduct
despite her protests. She sought a transfer from her workplace. In the
presence of others, he made embarrassing remarks about her body and
said that if she slept with him, she would never sleep with anyone else
again. Waitresses at the Country Restaurant also testified about his rude
and aggressive behaviour.
38. All of this was pleaded in the application for condonation and the review. In
his founding affidavit, the applicant testified that he had indicated to a
secretary in his office that he was attracted to her and that he wanted to
ask her out. He had audibly expressed his dissatisfaction with the service
at the restaurant, which was run by an independent owner on premises
rented from the third respondent. In reply, he simply denied all the
allegations and put the third respondent to the proof thereof.
39. More than a bare denial was required of the applicant. The applicant
chose not to disclose his defence fully, either because he had none, or
feared that he might be saddled with a version on oath that he might want
to change later. Either way, he obviously did not inspire the Commissioner
as a convincing and credible witness.
40. The applicants fourth ground of review was that the Commissioner allowed
the third respondent to deliver a replying affidavit dated the 19 th April 2001.
The Commissioner had directed the third respondent to file only a
supplementary affidavit and the applicant to respond thereto. So it was
submitted.
41. The third respondent’s supplementary affidavit was an explanation of its
failure to submit a signed resolution with its answering affidavit. The
applicant’s response thereto raised matters other than those relating to the
unsigned resolution. If any affidavit should have been disregarded, it was
the applicant’s answering affidavit in so far as it dealt with matters other
than the resolution.
42. Mr Howitz called on the Commissioner to disregard the replying affidavit.
He did not ask for a further opportunity to respond thereto. The
Commissioner had a discretion about the procedure to be followed in the
circumstances. It is evident that he referred to it without ruling on its
admissibility. However, the Commissioner did not rely on it for accepting
the signed resolution ex post facto. About that, the Commissioner
reasoned thus:
“The above tugof war between the warring parties, or their attorneys, illustrates
the over technical legal approach adopted by the legal profession, and further
illustrates their ignorance of the recently promulgated ‘RULES REGULATING
THE PRACTICE AND PROCEDURE FOR RESOLVING DISPUTES THROUGH
CONCILIATION AND AT ARBITRATION PROCEEDINGS,’ which largely regulate
the issues they have raised. Firstly, it is not only the practice of the Labour Court,
but also the practice in all our High Courts, to allow for the production of an
original resolution at the commencement of a matter before it, and does not
amount to an irregularity as such.
I accept the distinction between the South West Africa National Union matter from
the present one on the argument presented by the third respondent.
The parties have ignored two further aspects of the abovementioned rules,
namely my powers to join parties or substitute parties in terms of Rule 12 and that
I can accept a simple written statement in terms of Rule 19.6 of the said rules in
place of affidavits in condonation applications.
That being the case, the points raised by the parties (sic) becomes somewhat
secondary, and I believe it would be fair and equitable to disregard them and to
make a finding on the matter before me, namely the condonation application
itself.”
43. Quite deftly, the Commissioner cut through the peripheral and procedural
issues and proceeded to deal with the substance of the dispute. As the
applicant introduced the case of South West Africa National Union v
Tsozongoro & Others 1985 (1) 376 (SWA), the Commissioner referred to it
by distinguishing it, correctly in my view, from the dispute before him. For
the substance of the dispute, i.e. whether condonation should be granted,
the Commissioner relied exclusively on the material contained in the
founding, opposing and replying affidavits filed before the hearing of the
condonation application. The facts and submissions supporting the
applicant and third respondent are manifest at paragraphs 3 and 4
respectively of the award.
44. Mr Howitz submitted that the Commissioner ought to have found that there
was procedural and substantive unfairness in the dismissal of the
applicant. The Commissioner, he said, failed to deal at all with procedural
fairness.
45. The award manifests that the Commissioner dispensed with the prospects
of success thus:
“Turning my attention to Mr Moulds prospects of succeeding should I grant him
condonation for the late filing of his referral, I remain unconvinced that he would
succeed if I should decide to do so. His simplistic version, challenged by the other
party in some detail, is not taken up by him in any meaningful manner, which
would leave the allegations against him undisputed and of such a nature, that I do
not believe he would succeed in proving his dismissal to be unfair.”
46. This reasoning is entirely consistent with the material before the
Commissioner at arbitration. The applicant chose not to take the
Commissioner into his confidence and disclose his defence fully either in
his founding affidavit or in his reply. Once the incriminating allegations
were detailed in the answering affidavit, he was compelled to give some
explanation, which, if proved at arbitration, would have entitled him to
relief. No other reasonable inference could be drawn from his inadequate
response but that he did not have a valid defence. Substantively therefore,
the Commissioner correctly inferred that the dismissal would have been
justified at trial.
47. The nature of the allegations were such that they overrode any relief for
procedural unfairness. The fact that the applicant had less than one
month’s service, could also have counted against the granting of
compensation. This reasoning can be inferred from the award even though
the Commissioner did not distinguish explicitly between substantive and
procedural fairness. From his notes, it appears that he was alive to the
complaint of procedural unfairness.
48. The grounds of procedural unfairness, were pleaded by the applicant thus:
“The disciplinary proceedings at which I was arraigned were procedurally flawed
since the Chairman failed to follow the Employer’s Disciplinary Code, read out the
charges in the presence of witnesses later called, had no jurisdiction to entertain
the charges relating to the alleged incidents at THE COUNTRY COTTAGE
RESTAURANT, failed to halt the proceedings when it appeared that my
immediate superior, Mr M GCABO who was implicated in the said incidents
refused to give evidence on my behalf or had been influenced by the employer
not to give evidence on my behalf alternatively since he failed to issue a
managerial order to the said GCABO to give evidence and the said GCABO’S
evidence was relevant and essential and also since the Chairman made
comments at an early stage in the proceedings which indicated that the result of
the hearing was preordained and failed to hold a separate enquiry into sanction.”
49. Firstly, no one was prejudiced by the charges not being read out in the
presence of each witness. Secondly, it is trite law that the third respondent
had jurisdiction in respect of any work–related dispute even if it arose
outside the workplace. (Van Zyl v Duhva Opencast Services (Edus) Bpk
1988 (9) ILJ 905). Certain acts of misconduct were committed in the
restaurant situated in a village for which the applicant had responsibility as
estates manager. It was also frequented by the third respondent’s
employees. These facts were not disclosed by the applicant. Thirdly, the
third respondent had no authority to compel anyone to testify for the
applicant. As Mr M Gcabo elected not to testify for the applicant, there was
nothing that the third respondent could do. Fourthly, precisely what
comments the Chairman made is not evident from the record. That “the
results of the hearing was preordained” (sic), was a conclusion that the
applicant came to, without pleading the facts on which he relied therefor.
Fifthly, it is trite law and practice in industrial relations that, unlike a
criminal trial, a separate enquiry into sanction is not a prerequisite for
ensuring procedural fairness.
50. From the aforegoing, it is clear that none of the procedural grounds had
any prospects of success. They were made frivolously and Mr Howitz as
an attorney ought to have advised the applicant accordingly.
51. The Commissioner acknowledged that the period of delay of about 15
hours was “minimal.” The reason for the delay was found to be “not
satisfactory” because:
“Ninety days is a long time in which to consider whether one wants to proceed to
arbitration after a failed attempt to conciliate a matter, and to wait until the end of
such period before taking any action is wholly unsatisfactory. In addition, if Mr
Mould or Mr Howitz had immediately acted on the 11 th September 2000, when the
referral to arbitration was signed, and had referred the matter to arbitration, they
would have no problems in respect of the late filing of this referral. No explanation
for such failure has been tendered, except that the period was miscalculated,
which is contrary to the 90 day limitation.”
52. On the basis of this finding alone, the Commissioner could have dismissed
the application (Chetty v Law Society Tvl 1985 (2) SA 756 A at 765 EF).
Having completed the form timeously on 11 th September 2000, there was
no explanation as to why it was not delivered that day and why the
applicant had delayed its delivery. This reasoning cannot be faulted.
53. The fact that the applicant, Mr Howitz and the CCMA were separated by
long distances, was no excuse as the applicant had access to
telecommunication facilities.
54. Employed as he was as a manager, the applicant ought to have
experienced no difficulty in completing the referral to arbitration; he chose
to be represented by an attorney. He accepted the latter’s advice that the
referral should be drafted in the form of a combined summons. These
choices cannot be allowed to prejudice the third respondent.
55. The Commissioner made no finding to the effect that the negligence of Mr
Howitz caused the delay because that was not pleaded in the application
for condonation. In this regard, Mr Howitz and the applicant were less than
frank with the Commissioner.
56. A miscalculation by the applicant was, in the discretion exercised by the
Commissioner, unacceptable in the circumstances.
57. The condonation application failed therefore, on two legs i.e. the
explanation for the delay and the lack of prospects of success.
58. I turn to the issue of costs. The kind of issues that the applicant pursued is
an indication of his belief in the strength or otherwise of his case. In this
application and in the application for condonation, the applicant and his
attorney were preoccupied with technical, formal and procedural issues.
They studiously avoided having to deal with the substance of the dismissal
which, ultimately, is the heart of the matter. They must have realised
therefore that the applicant had little prospects of success.
59. Mr Horwitz raised issues that were long settled in labour jurisprudence and
referred the Court to inappropriate authority. He ignored Rule 18 of the
Rules of the Labour Court which require “concise heads of argument on
the main points” to be argued to be delivered.
60. The applicant’s plea that he should not be saddled with the costs if
unsuccessful must be rejected for these reasons.
The application for review is dismissed with costs.
Pillay D, J