IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN REPORTABLE
CASE NO D851/02
DATE HEARD 2003/04/24
DATE DELIVERED
2003/05/03
In the matter between:
SOUTH AFRICAN POST OFFICE LIMITED Applicant
and
DEVAN GOVENDER
First Respondent
COMMISSIONER SATCHI M. GOVENDER
N.O. Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION Third Respodent
JUDGMENT DELIVERED BY THE HONOURABLE MS JUSTICE
PILLAY
ON 2 MAY 2003
FOR THE APPLICANT : ADVOCATE PITMAN
INSTRUCTED BY : SHEPSTONE &
WYLIE ATTORNEYS
FOR THE RESPONDENT : ADVOCATE K NAIDU
INSTRUCTED BY : ANESH
MAHARAJ ATTORNEYS
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
JUDGMENT 2 MAY 2003
PILLAY D, J
[1] Mr Pitman referred me to the three cases discussed
hereunder in support of his submission that the applicant
had satisfied the requirement of proving that Mnyandu, the
manager of Labour Relations who deposed to the founding
affidavit, was properly authorised to launch this review.
[2] The remarks of FLEMING DJP in Eskom v Soweto City Council
1992 (2) SA 702 (W) that the regularity of argument about
the authority of the deponent was unnecessary and wasteful
must be echoed in this application. The learned Judge
observed that in the past proof of authority to bring legal
proceedings appeared to have been inspired by the fear that
a person might deny that it was a party to the litigation
carried on in its name. The later view, he said, is that if the
attorney concerned is authorised to bring an application, the
application necessarily is that of the applicant. There is no
need for any other person, whether (s)he is a witness or
someone who becomes involved, especially in the context of
authority, to be additionally authorised.
[3] In Tattersall & Another v Nedcor Bank Limited 1995 (3)
SA 222 (A) the Court found that a branch manager fell within
the class of officials having authority to bring legal
proceedings on behalf of the bank. In that case a copy of the
resolution authorising the bringing of an application was
found to be unnecessary as there was sufficient aliunde
evidence of authority. The Court further pointed out that the
appellant's denial of the deponent's authority was
"ambiguous, spare and probably tactical", and adopted the
approach in Mall Cape (Pty) Limited v Merino Koöperasie
Beperk 1957 (2) SA 347 (C), namely that when the challenge
to authority was a weak one, minimum evidence will suffice.
The use of the word, "duly" in the expression "duly
authorised" was an indication that the authority was properly
conferred, so the Court held.
[4] Similarly in Poolquip Industries (Pty) Limited v Griffin &
Another 1978 (4) SA 353 (W), COHEN AJ held that,
"It is usual and desirable for the resolution
of the board of directors of a company,
authorising the litigation, to be annexed to
and proved by the founding affidavits.
When it is not, but the probabilities
indicated by allegations in those affidavits
justify the conclusion that the company has
authorised the application, in the absence
of evidence to the contrary, the failure to
annex the resolution need not result in the
dismissal of the application."
[5] In this case the applicant is represented by attorneys. They
would hardly do so if they were not properly authorised. The
first respondent's objection is based on no more than a bare
and tactical denial. He had nothing to gainsay Mnyandu's
contractual obligations. (See also my judgment in Mould v
Rooper 2002 (23) ILJ 2076 (LC), at paragraph 24, and the
cases cited therein.) The objection in limine is dismissed.
[6] The first and principal ground of review is that the second
respondent Commissioner committed a gross irregularity
which vitiated the entire arbitration. The facts on which this
ground was based are the following:
[7] The first respondent applied to be legally represented at the
arbitration. After considering the jurisdictional facts
prescribed in section 140 of the Labour Relations Act No 66
of 1995 (the "LRA"), the Commissioner ruled against the first
respondent. In doing so, however, he added that the first
respondent's attorney could remain in the proceedings but
was precluded from "representing" the first respondent, who
was,
"entitled in the circumstances to consult
from time to time with the legal
representative."
He continued,
"There is no prohibition against that in
terms of the Act. The applicant will then
have to represent himself."
[9] The attorney remained seated next to the first respondent
during the arbitration. The Commissioner permitted the
attorney to assist the first respondent during the arbitration,
by writing him notes on how to conduct his case, the
questions to be put to the witnesses and the representations
to be made.
[10] When Mnyandu objected at the arbitration to the role being
played by the attorney, the Commissioner overruled him. His
reasoning appears from the following extract of the record,
"Commissioner No, it's not nullified
because the question is that the legal
representative doesn't represent him in
cross-examination and the argument, and
so forth. He can assist his client in terms of
areas to be questioned and so forth. Every
person has the right to consult an attorney,
that's the right in terms of the Constitution,
this prohibition, in terms of the Act, doesn't
prevent him from, consulting with a legal. I
could easily ask the legal representative to
stay outside, but he's going to say, 'Hold
on, I need to consult my legal
representative on this issue', and come
back, that's going to delay the issue.
Mr Mnyandu And then, what are the areas of prohibition, if maybe I can be
clear on this one?
Commissioner That he's not allowed to speak to, on his behalf, not allowed
to argue on his behalf.
Mr Mnyandu But he's doing that through the writings of the papers.
Commissioner He can write areas if he wants, he can cross-examine, he's
assisting him. You have an assistance of a legal representing you, you have
the right to be represented by him, it's a different concept.
Mr Mnyandu Ja, that's where I'm getting confused because, what he was,
what he actually is doing, is that he's actually representing him through
writing those questions and he’s not doing the talking, but the talking is
being done by the other party. Then, at the end of the day, he's representing
him but he's the one who is doing the talking but the guy is actually
representing him.
Commissioner The person who does the talking is the one that’s
representing. He can be assisted by anybody, he can be assisted by his wife,
is that his wife, or whatever, he can be assisted by anybody." (sic)
[11] From the extract, it appears that the Commissioner
misconceived the concept of legal representation. He
confined it to being a spokesperson for the first respondent
at the arbitration.
[12] Section 140 does not justify such a restrictive interpretation.
A legal representative who attends an arbitration usually
assists the client in analysing the issues, formulating
responses, questions and submissions and, as a
spokesperson for the client, presents the case to the
arbitrator. By preventing the applicant from being a
spokesperson, the Commissioner did not bar legal
representation altogether. That contradicted his earlier
ruling disallowing the first respondent legal representation at
the arbitration.
[13] When making that ruling, the Commissioner purposefully
took into account the criteria enumerated in section 140 of
the LRA, and found that there was insufficient public interest
to warrant legal representation. As regards the comparative
abilities of the parties, he found that the first respondent had
recourse to trade union officials. The matter was not so
complex, he said, as to warrant legal assistance.
[14] Having made his considered ruling, the Commissioner
undermined it by permitting the attorney to participate in the
process by writing notes to the first respondent to assist him
in the conduct of the case. This irregularity, which pervaded
the entire process, was compounded by the Commissioner
calling on the first respondent to submit closing arguments
which were to be prepared by his attorney. At the very least,
this disturbed the balance between the comparative abilities
of the parties. It would have affected the quality and content
of the evidence that was advanced. It also caused confusion.
Mr Mnyandu informed the Commissioner as much.
[15] Finding, as I do, that the entire process was vitiated, it is not
necessary for me to consider the further grounds of review.
[16] The order that I make therefore is to review and set aside the
award. I am not in a position to substitute my own decision
for that of the Commissioner as the evidence on the record is
not reliable, having found that the proceedings were vitiated
by the manner in which the Commissioner allowed the first
respondent to be legally represented.
[17] The order is therefore as follows:
(a) The application for review is granted.
(b) The matter is referred back to the third respondent for
arbitration by a Commissioner other than the second respondent.
(c) The first respondent is ordered to pay the costs of the review.
PILLAY D, J
21June 2003