IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JR 1067/03
REPORTABLE
In the matter between:
SCOPEFUL 21 (PTY) LTD T/A
MALUTI BUS SERVICES APPLICANT
And
SOUTH AFRICAN TRANSPORT AND ALLIED 1st
RESPONDENT
WORKERS’ UNION OBO MJ MOSIA
SOUTH AFRICAN ROAD PASSENGER 2 nd
RESPONDENT
BARGAINING COUNCIL
ARBITRATOR MAHUBE MOLEMELA 3 rd
RESPONDENT
REASONS FOR JUDGMENT
REVELAS,J
[1] The applicant seeks to review an award made by the third respondent
(“the arbitrator”) in favour of Mr MJ Mosia (Mr Mosia), its former
employee. In the award dated 22 May 2003, the arbitrator concluded that Mr
Mosia’s dismissal by the applicant was substantially unfair and ordered his
retrospective reinstatement.
[2] The attack on the arbitrator’s award was bifurcated. Firstly, it was
argued that the reinstatement order made by the arbitrator was outside and
exceeded her terms of reference. Secondly, it was argued that the
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conclusions reached in the award was not rationally connected to the
evidence before the arbitrator, in that she did not apply her mind to the
evidence before her.
[3] Terms of reference :
In the arbitration agreement, the terms of reference stipulated that the
arbitrator should make a finding as to whether the dismissal of Mr Mosia
was procedurally and substantially fair or unfair.
[4] The applicant argued that since the terms of reference in the
arbitration agreement was silent concerning any further orders that the third
respondent may issue (in other words any relief), the arbitrator exceeded her
terms of reference by reinstating Mr Mosia. It was submitted by the
applicant that there was “no doubt that the third respondent both understood
and was aware of his (sic) limited terms of reference”. Strong reliance was
also placed on the fact that the arbitrator, subsequent to this application
being served on her, had filed an affidavit stating that she had made an error
by reinstating Mr Mosia, adhering to a view that her terms of reference did
not empower her to grant reinstatement.
[5] At this juncture I must point out that the arbitrator’s statement or
admission that she had erred, is no more than her opinion which is not
binding or persuasive as she was not a party to the arbitration agreement or
terms of reference.
[6] To determine the merits of this ground of appeal, I have to consider
what the intention of the parties were. On the probabilities it is highly
unlikely that two parties would agree to have the fairness of a dismissal
arbitrated by an arbitrator and purposely exclude any relief in the event of a
finding of substantive and or procedural fairness. That would make no sense.
[7] If one would however conceive of such an improbable agreement,
then the probabilities would dictate that when the employee party (the first
respondent’s representative) indicated that the relief he persued on behalf of
respondent’s representative) indicated that the relief he persued on behalf of
Mr Mosia was reinstatement (as did occur in this case) there would be an
objection on record. There was none. And this was so because there could
not possibly be such an agreement.
[8] Furthermore, if parties for some particular reason wished to enter into
such an ostensibly absurd agreement they would most certainly have
recorded it in no uncertain terms, owing to the fact that it is so exceptional.
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[9] The aforesaid reasoning does not amount to writing a contract for the
parties as the applicant has argued. It is based on a simple understanding of
labour relations and the phenomena that employers and employees have
their disputes arbitrated to have it resolved with a meaningful outcome,
whether a statute regulates the referral of such a dispute or the parties
themselves resort to private arbitration, as was the case with this arbitration
and so many other instances.
[10] The arbitrator was thus empowered to determine the appropriate relied
to be awarded in the event of finding the dismissal to be unfair. The
arbitration agreement should be read to reflect that the common intention
which the parties had, namely to obtain relief commensurate with the finding
as to fairness. One could hardly imagine that an employee who refers a
dispute about an unfair dismissal would do so without any relief attached to
a finding in keeping with the dispute he or she has referred.
[11] The Merits:
It was argued by the applicant that the arbitrator did not apply her mind to
the facts before her. The facts were that Mr Mosia was dismissed for failing
to stop for an inspection. Mr Motaung (the inspector) gave evidence that he
was standing at a bus stop and waved with his board to stop the bus driven
by Mr Mosia, who did not heed to his signal. It is stated that Mr Mosia
stopped thirty five metres away from the bus stop, to permit a passenger to
alight and then drove off. Due to this, Mr Motaung did not have the
opportunity to reach the bus.
[12] Mr Mosia’s version was that he stopped at the bus stop (not 35 metres
further on) and Mr Motaung was not seen there. A vendetta by Mr Motaung
against Mr Mosia was also mentioned in the context of a bad relationship
between them. Mr Mosia said he had no problems with the other inspectors
employed by the applicant.
[13] The arbitrator concluded that the versions of the applicant and Mr
[13] The arbitrator concluded that the versions of the applicant and Mr
Mosia were “equally probable” and that “none is more probable than the
other”. Therefore she concluded, the applicant had not discharged the onus
of proving that the dismissal of Mr Mosia was fair.
[14] The arbitrator, who was steeped in the atmosphere of hearing the
witnesses in a hearing de novo, made a credibility finding, having observed
and listened to the witnesses. A review court should be very cautious before
it interferes with a finding of that nature. Paramount in such an evaluation is
the reminder that a review court is not a court of appeal. However, the
distinction between a review and an appeal may have blurred over the years
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in which the Labour Court and Labour Appeal Court have grappled over and
developed the test on review.
[15] Even if I was remiss in judging the arbitrator’s credibility findings in
relation to the evidence presented, the facts on either party’s version, does
not lend themselves to support a finding that dismissal was the appropriate
sanction in any avent.
[16] In the circumstances, the application for review must fail on both
grounds and be dismissed with costs.
[17] The first respondent has also put up a case that the review should fail
because of the alleged inordinate delay by the applicant in persuing this
award, particularly with regards to the obtaining of the record. I do not see
the need, in view of my findings above, to set out the exact manner in which
the applicant dragged its feet in getting this matter before the court. I do
however note that the applicant employed delaying tactics in this regard as
set out by the first respondent in its head of argument. The applicant’s delays
are to be of significance once again, in evaluating the diligence with which it
undertakes to comply with the granting of the first respondent’s counter
application, namely to make the arbitrator’s award an order of court, which
was granted.
_________________________
E. REVELAS
REPORTABLE: YES
DATE OF HEARING: 10 MARCH 2005
DATE OF JUDGMENT: 15 MARCH 2005
ON BEHALF OF THE APPLICANT: Adv. APJ Du Plessis
INSTRUCTED BY: JA Botha, Correspondents for
Hofmeyr, Herbstein and
Gihwala Attorneys
ON BEHALF OF THE RESPONDENT: Adv. JG van der Riet S.C.
INSTRUCTED BY: Cheadle Thompson and
Haysom Attorneys
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