IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C34/2003
DATE: 24-11-2004
In the matter between:
SACHAL & STEVENS (PTY) LTD Applicant
and
D J F CAROLUS First Respondent
MARIO WANZA Second Respondent
THE COMMISSION FOR CONCILIATION, Third Respondent
MEDIATION AND ARBITRATION
J U D G M E N T
______________________________________________________________________________________
TODD, AJ:
1. This is an application for review of an arbitration award of the second
respondent, a commissioner of the Commission for Conciliation, Mediation and
Arbitration ("CCMA"). An award was made in favour of the first respondent, who was
found to have been dismissed unfairly and was awarded certain compensation.
2. The application is plagued by a number of procedural irregularities and other
technical points, which have bedeviled not only its conduct in this Court, but which
ultimately lie at the heart of the applicant's contentions in the application before me. The
case also demonstrates a regrettable lack of administrative precision on the part of the
CCMA, to which I will refer in due course.
3. The first respondent was employed, he said, by an entity which he cited when he referred a
dispute to the relevant Bargaining Council (I was not provided with a copy of that dispute referral
in these papers, but can discern this by reference to a certificate of outcome which I am left to
assume reflects the name of the employer as it was cited in the referral) as "Sachal & Stevens".
There is no reference to whether that entity is a company, a firm or any other form of corporation,
a situation which is all too common in matters of this nature, in particular where individuals
prosecute employmentrelated claims in the CCMA and, indeed, in this Court.
4. The matter was not successfully conciliated and was referred to arbitration. At the
commencement of the arbitration proceedings, a Mr Mark Stevens, who attended the arbitration
proceedings on behalf of the applicant, indicated to the second respondent that the first
respondent had in fact been employed by a company known as Sachal Polyships (Pty) Ltd. The
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record shows that his actual words used were the following "it is actually Sachal Polyships is the
name of the company who employs him." Mr Stevens, it is apparent from the papers before me,
is the director both of Sachal & Stevens (Pty) Ltd (the applicant in these proceedings) and of
Sachal Polyships (Pty) Ltd (the company which he advised the commissioner at the
commencement of the arbitration proceedings was the employer of the first respondent). It is
further apparent from the papers before me that those companies conduct business from the
same premises and that they have common membership and may properly be described as
forming part of a “group”.
5. In simple terms they appear to be sister companies closely related in terms of their commercial
identity, but the precise nature of their relationship and the extent to which they conduct the same
business has not been disclosed to me for reasons which are far from clear. I may say that it seems to
me that the person most obviously in a position to articulate the interrelationship between the
companies' business so that a proper understanding could be gained of the significance of Mr Stevens'
contention at the outset of the proceedings (that Sachal Polyships was the first respondent's employer)
was Mr Stevens himself.
6. Nevertheless, at the outset of the arbitration proceedings, as I have indicated, Mr Stevens
informed the arbitrator that the employer was Sachal Polyships. The first respondent did not at
the time dispute that statement of Mr Stevens and the arbitration proceedings took place on that
basis. Mr Stevens did not suggest to the arbitrator that he had no jurisdiction to arbitrate the
dispute on the basis which Mr Rautenbach, who appeared for the applicant, submitted to me,
namely that there had been no proper referral of a dispute as between the first respondent and
Sachal Polyships, the relevant dispute referral forms having related to Sachal & Stevens. I make
that point because it seems to me to be clear from a consideration of the transcript that Mr
Stevens continued to participate in the arbitration on the basis that he was there as a
representative of Sachal Polyships, of which it is apparent also from the papers before me, he is
the sole director and which has the intimate commercial or ownership relationship with Sachal
Stevens that I have described. The arbitration proceedings continued on the basis that the
employer in the arbitration proceedings was Sachal Polyships (Pty) Ltd.
7. An arbitration award was issued on or about 10 April 2002 which cited the respondent as "Sachal
& SevensThe Manager". The arbitration award then went on to describe the respondent's
representative as "Sachal Polyships (Pty) Ltd". Reference in the award to the respondent as "Sachal &
Sevens The Manager" appears to me quite apart from the typographical error in relation to the name
Stevens to have been an obvious error and on a proper consideration of the award it seems clear to
me that the arbitrator intended to make an award against Sachal Polyships (Pty) Ltd. To the extent that
there is any doubt about that, the arbitration award filed with the record of proceedings clearly reflects
Sachal Polyships in relation to the arbitration award, though this time with what perhaps is by now a not
unexpected further typographical error in relation to the name. That award, as Mr Rautenbach pointed
out, bears one difference to the award issued on or about 10 April 2002 and that is that the date by
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which the applicant is to be paid the compensation he was awarded is stated as being 30 April 2002, as
compared to the date of 25 May 2002 in the other copy of the award.
8. These discrepancies are unexplained, but it seems to me that the differences in date are
not material for the purposes of my decision in this matter. I mention that both versions of the
award appear to have been signed and it would, in my view, have been appropriate for the CCMA
or the second respondent (the arbitrator) to have explained the discrepancies in the award and
the manner in which they came about. Nevertheless, it seems to me clear that the employer party
cited in the award is Sachal Polyships (Pty) Ltd and in the light of the portion of the record to
which I have referred, there is no reason to doubt that this was the conclusion that the
commissioner had reached on the basis of the evidence before him.
9. That has two material consequences in relation to the applications that have been brought before
me. The first is that Sachal Polyships (Pty) Ltd is not a party in these proceedings, has not been joined
as an applicant in this application, and is not seeking in these proceedings to challenge the arbitration
award or have it set aside. Insofar as the applicant (Sachal & Stevens) seeks to review and set aside
the award, it is not the employer party ordered in the award by the arbitrator to pay the compensation
which the arbitrator awarded and it has, on the papers before me, no basis for seeking to review and set
aside the award.
10. The applicant’s primary concern arises from the fact that the first respondent has procured, in an
endeavour to enforce the award, a writ of execution (preceded, I should say, by a certification of the
award by the director of the CCMA), in which the applicant (Sachal & Stevens (Pty) Ltd) is cited as the
respondent. It seems to me on the papers before me that the applicant is entitled to relief in relation to
the writ of execution.
11. Before I turn to the orders that I propose to make in the matter, I make the following further
observations in relation to the facts as they appear before me. Firstly, insofar as Sachal Polyships is
concerned, efforts to resist compliance with the award on the basis that there was no proper referral of a
dispute to the Bargaining Council for conciliation seem to me to be doomed to failure. I mention this only
because it was suggested in these proceedings that in the event that Sachal Polyships is found to be the
employer party in relation to the arbitration award, it would be necessary for the first respondent to start
afresh with a referral of a dispute citing Sachal Polyships as the employer.
12. The kinds of arguments that were advanced in this regard before me have been dealt with
in other judgments of this Court. I refer by way of example to Lambrecht v Pienaar Bros (Pty) Ltd
[1998] 6 BLLR 608, a judgment of the Labour Court by Tipp, AJ . There, an employer resisted
enforcement of an arbitration award on the grounds that it alleged that it had been mistaken for a
similarlynamed but separate legal entity. Tipp AJ stated at paragraph 6 of the judgment:
"In general, when it comes to the correction of parties, a distinction falls to be drawn between
instances where a party has been incorrectly described and those where an entirely different party
has been cited. On the face of it, two legal entities are involved in the present matter; the one is
Pienaar Bros (Pty) Ltd and the other is Pienaar Bros (Pty) Ltd t/a Pienaar Bros North. However,
the facts must be placed in context and the substance of the matter must be examined. When that
is done, I am satisfied that the existence of two entities plays no material role in the present case.
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All transactions relevant to this dispute have been directed to the personnel and the establishment
which de facto employed the applicant. That establishment, particularly through the person of Mr
Kobus Steyn, has been fully informed of the steps taken towards resolution of the dispute. Up to
a point, there was active participation by it qua employer in those steps. At no time before the
opposing papers in this application has there been any complaint about the identity of the persona
which has been cited."
And further, after considering the powers of the Labour Court, which include, in terms of the
provisions of section 158(1)(a)(iii), the power to make any appropriate order, including an order
directing the performance of any particular act which order, when implemented, will remedy a
wrong and give effect to the primary objects of this Act, the learned Acting Judge concludes at
paragraph 15:
"In my view, the effect of these various provisions is to vest this Court with sufficient power to
bring about in relation to the CCMA arbitration award the same correction that it has effected in
respect of the proceedings before the Court. If it were not so an absurd result would follow, being
an unnecessary, timeconsuming and costly remission to the CCMA in order to effect a correction
that this Court had already determined is to be made."
13. I refer to that judgment not so much because it is material to my decision, but because it is
apparent that the sentiments there expressed would be equally apposite here. Mr Stevens has
been the recipient of all relevant dispute referrals and documents relating to this dispute. An
argument that the referral had not been directed to Sachal Polyships (Pty) Ltd and that on that
basis the arbitration award in relation to that entity should be set aside would, in my view, apart
from being excessively late, be spurious, the true dispute between the parties having, in my view,
properly been referred to the CCMA and conciliated in the manner contemplated by the Act. As to
what that entails I refer also to the decision of the Labour Appeal Court in the matter of Numsa v
Driveline Technologies (Pty) Ltd [2000] 1 BLLR 20 (LAC). Although that case concerned a
different question, that is whether a particular ground of the dispute in issue had been dealt with at
conciliation, it nevertheless seems clear to me from the judgment that the Court was concerned
primarily with the question whether as a matter of substance the parties had properly been
brought together in a process of conciliation at the CCMA and that that is the jurisdictional
prerequisite. Similar considerations are evident in the judgments of the Labour Appeal Court in
Fidelity Guards Holdings (Pty) Ltd v Epstein & Others [2000] 12 BLLR 1389 (LAC); in the decision
of the Labour Court in that matter reported at [2000] 3 BLLR 27, which was upheld on appeal; and
in the decision of the Labour Court on similar questions in BHT Water Treatment v CCMA &
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Others [2002] 2 BLLR 173. Those decisions show, in my view, that this Court and the Labour
Appeal Court will be concerned primarily with questions whether as a matter of substance
jurisdictional prerequisites have been met. Quite apart from that, it seems to me that a challenge
by Sachal Polyships (Pty) Ltd on the basis of the alleged nonreferral of a dispute in relation to
that entity to the relevant bargaining council, will fail on the grounds that it was brought too late
and on the grounds that the point was not taken at arbitration. Although at arbitration Mr Stevens
identified the correct employer, there was no suggestion that the dismissal dispute then being
arbitrated had not been referred to conciliation and the principle that then becomes applicable is
that expressed in the maxim omnia praesummuntur rite esse acta .
14. The time for Sachal Polyships to take the point, it seems to me, has long past. I make a
further observation in that regard. Not only was the point not taken in the arbitration, but there is
no reference to it in the letter dated 30 May 2002 addressed by Mr Stevens to the CCMA following
his initial receipt of the CCMA award. His letter is addressed to the CCMA on a letterhead of
Sachal Polyships (Pty) Ltd, and raises a number of complaints about the arbitration award which
are articulated in the form of an appeal.
15. These comments are, of course, not directly material to the present application. I have not
been asked to deal with any such application by Sachal Polyships and they are therefore,
needless to say, obiter.
16. On the question of costs, before I turn to the award that I make, it seems to me that the
applicant will have been successful in this matter insofar as it will have succeeded in relation to
the writ of execution that has been issued, but in relation to the remainder of the application the
effect of my order is that the application was misconceived I refer to the rview application
brought by the applicant to review and set aside the arbitration award to which the applicant on its
own contentions was not a party. Appropriate declaratory relief may have been sought but the
applicant need, in my view, only have sought relief in relation to execution.
17. I am mindful of the fact that the CCMA commissioner (second respondent) might and perhaps
should have been more articulate in describing the nature of the entity in respect of which the arbitration
was conducted. This inaccuracy may have contributed to what, in my view, is a course of litigation that
is not warranted when one has regard to the essence of the award that is ultimately at the heart of this
matter; in fact, I have a very real fear that the parties' respective legal costs will by now far have
exceeded the compensation ordered in the award, a situation which, in the light of the purpose of the
Labour Relations Act, is entirely regrettable. Nevertheless, in the light of the view I take of this matter, I
think it appropriate that costs should lie where they fall at the moment and that each party should bear
its own costs.
18. In those circumstances I make the following order:
1. Sachal Polyships (Pty) Ltd is declared to be the respondent in respect of the arbitration award
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made by the second respondent under case number WE8176/01. To the extent that two separate
dates are referred to in the two copies of the awards before me, the applicable date is declared to
be 25 May 2002.
2. The certification of the award in relation to the applicant is set aside.
3. The writ of execution in relation to the applicant and any attachments in terms
thereof, are reviewed and set aside.
4. There is no order as to costs.
_
TODD, AJ
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