Strategic Liquor Services v Mvumbi NO and Others (CCT 33/09) [2009] ZACC 17; (2009) 30 ILJ 1526 (CC); 2010 (2) SA 92 (CC) ; 2009 (10) BCLR 1046 (CC) ; [2009] 9 BLLR 847 (CC) (18 June 2009)

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[2009] ZACC 17
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Strategic Liquor Services v Mvumbi NO and Others (CCT 33/09) [2009] ZACC 17; (2009) 30 ILJ 1526 (CC); 2010 (2) SA 92 (CC) ; 2009 (10) BCLR 1046 (CC) ; [2009] 9 BLLR 847 (CC) (18 June 2009)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 33/09
[2009] ZACC 17
STRATEGIC
LIQUOR SERVICES
Applicant
versus
MVUMBI,
T NO
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second
Respondent
REDGARD,
WESLEY
Third
Respondent
Decided
on : 18 June 2009
JUDGMENT
THE
COURT:
The
applicant (the employer) seeks leave to appeal against a judgment
of the Labour Court dated 20 February 2007, which dismissed
with
costs an application to review a Commission for Conciliation,
Mediation and Arbitration (CCMA) award in favour of Mr Wesley

Redgard, whom it had employed as a merchandising supervisor and
then regional manager from October 2003 until February 2004.

Despite the fact that Mr Redgard had tendered his resignation, the
CCMA held that he had been constructively dismissed, and,

notwithstanding the short period of employment, granted him
compensation equivalent to ten months’ salary (R121 500).

Incensed by this outcome, the employer brought review proceedings
in the Labour Court, but failed. It unsuccessfully sought
leave to
appeal to the Labour Appeal Court, and then petitioned the Supreme
Court of Appeal for special leave to appeal. That
application,
too, was dismissed with costs.
The application to this
Court has scant basis and can be disposed of quite briefly.
According to the CCMA’s award, Mr Redgard
was the only witness to
testify. Although the employer’s case was conducted by its
manager, Mr Jason Sellars, who was involved
in the events leading
up to Mr Redgard’s departure, he did not testify under oath, but
proffered only arguments and submissions.
The result was that Mr
Redgard’s evidence was the only version before the tribunal. His
evidence was not disputed in cross-examination
and the CCMA
commissioner (Mr Mvumbi) accepted it. Mr Redgard testified that
after one of the employer’s biggest customers
complained about
him, Mr Sellars gave him a choice between resigning (with one
month’s salary and a good reference), and
being warned and placed
on a poor work performance programme with training. Mr Redgard
testified that the complaints were
unfairly instigated and false,
but that management was against him. After consideration he told
Mr Sellars that he accepted
management’s “offer” that he
should resign “because what is the point of staying if I’m
gonna get fired anyway.”
Shortly after, he initiated proceedings
for unfair dismissal.
Section 185(a) of the
Labour Relations Act
1
confers “the right not to be unfairly dismissed”. Section
186(e), defines “dismissal” as including a situation where
“an
employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable
for the
employee”. This definition gives statutory embodiment to the
jurisprudence of constructive dismissal that preceded
it. The CCMA
concluded that Mr Redgard had been constructively dismissed. In
its application to this Court, the employer
contends that the CCMA
– and the Labour Courts in refusing to review its determination –
misconceived the jurisdictional
prerequisites for constructive
dismissal, since on Mr Redgard’s own version he had a choice
whether to resign or be subjected
to poor performance procedures.
It asks this Court to step in.
There are two reasons why
the invitation cannot be accepted. The first is that the
employer’s submission overlooks Mr Redgard’s
uncontested
evidence to the effect that his work situation had become
intolerable and that the alternative to resignation was
a sham
since the employer would find a reason to dismiss him anyhow. This
means there was no “choice”. The second is
that it
misconceives the test for constructive dismissal, which does not
require that the employee have no choice but to resign,
but only
that the employer should have made continued employment
intolerable.
2
There are no grounds for
disturbing the CCMA’s finding that this was the case, (and no
independent attack on the amount of
compensation awarded). The
employer’s quest to overturn the award was therefore misconceived
and its application to this
Court must be dismissed.
But there are troubling
features of this case. The one is the severe delay that beset it.
The other is that the Labour Court,
despite repeated requests,
failed to furnish written reasons for its decision. To elucidate
it is necessary to set out some
of the litigation history.
The CCMA proceedings took
place on 8 October 2004. The Commissioner’s award was handed
down three months later on 19 January
2005. The employer’s
review application was lodged promptly in the Labour Court in
February 2005, but was set down for hearing
only two years later,
on 20 February 2007. On that day, the employer states, an
ex
tempore
judgment was handed down by the presiding judge, Nel
AJ, dismissing the review application. No written reasons were
forthcoming.
The employer therefore filed a formal request for
written reasons on 11 April 2007. Still no reasons were
forthcoming. The
employer had in the meanwhile filed an
application for leave to appeal, reserving its rights to supplement
once written reasons
were received. Still they did not come.
Instead, a letter from the Labour Court’s legal administration
officer communicated
a directive from Nel AJ requiring the parties
to deliver written submissions on the application for leave to
appeal. The employer
complied with this in October 2007. Nel AJ
dismissed the application on 20 December 2007. Again he furnished
no reasons.
Against this
extraordinary background, the employer petitioned the Labour Appeal
Court for leave to appeal. This it did promptly
in January 2008.
The Labour Appeal Court took nearly twelve months to determine the
application, which it dismissed on 8 December
2008. Again, no
reasons were furnished.
The employer’s
subsequent approach to the Supreme Court of Appeal failed, but the
Court dealt with it speedily (less than
two months from lodging to
order). But the judges considering the application, Van Heerden
and Cachalia JJA, were troubled
by the poor judicial service meted
out to the employer. By long-standing practice of the Supreme
Court of Appeal, reasons
are not furnished when applications for
leave to appeal are disposed of without oral argument.
3
Exceptionally, the Supreme Court of Appeal gave reasons in this
case. It did so because “we have not had sight of a copy
of the
judgment of the Labour Court, which is the subject of the
petition”. The Supreme Court of Appeal reasons record that
the
tapes of Nel AJ’s
ex tempore
judgment could not be
located, and that the Labour Appeal Court struck off the employer’s
petition for leave to appeal because
no copy of Nel AJ’s judgment
was annexed. This – through no fault of the employer –
necessitated the lodging of a fresh
petition, contributing to the
delay already mentioned.
For the benefit of the
employer, the Supreme Court of Appeal recorded that the test for
review of CCMA determinations was narrow,
and that, having
carefully studied the papers, it was “satisfied that it has not
been shown that the arbitrator has made
himself guilty” of a
reviewable breach. It added that the threshold for granting leave
to appeal to it from the Labour Appeal
Court was high.
4
These were the first
written reasons the employer received for the failure of its
challenge to the CCMA award.
Some comment is
necessary. First, the delay. It is lamentable that so many delays
occurred, some (though not all) attributable
to judicial management
of the employer’s case. The Supreme Court of Appeal has recently
(in not incomparable circumstances,
where the Labour Appeal Court
took more than fifteen months to deliver judgment) deplored what it
called “systemic delays”
in the Labour Courts. It pointed out
that:
“
The
entire scheme of the LRA and its motivating philosophy are directed
at cheap and easy access to dispute resolution procedures
and
courts. Speed of result was its clear intention. Labour matters
invariably have serious implications for both employers
and
employees. Dismissals affect the very survival of workers. It is
untenable that employees, whatever the rights or wrongs
of their
conduct, be put through the rigours, hardships and uncertainties
that accompany delays of the kind here encountered.
It is equally
unfair that employers bear the brunt of systemic failure.”
5
This Court has recently
dealt with a matter where the Labour Appeal Court delivered
judgment more than two and a half years
after oral argument was
concluded before it,
6
and the comments of the Supreme Court of Appeal must be endorsed.
Second, the failure by
the Labour Court to supply written reasons for its decision was
equally lamentable. That the tapes recording
the
ex tempore
judgment went missing did not excuse the lapse. The employer,
being minded to appeal, was entitled to written reasons, and
when
it requested them, they should have been given. When the employer
applied for leave to appeal, the first-instance judge
was presented
with a further opportunity to remedy the deficiency, since the
challenge to his judgment gave him the opportunity
to reconsider
it. He should at that stage, at the latest, have supplied reasons.
It is elementary that
litigants are ordinarily entitled to reasons for a judicial
decision following upon a hearing, and, when
a judgment is
appealed, written reasons are indispensable. Failure to supply
them will usually be a grave lapse of duty, a
breach of litigants’
rights, and an impediment to the appeal process. In
Botes and
Another v Nedbank Ltd
,
7
Corbett JA pointed out that “a reasoned judgment may well
discourage an appeal by the loser”:
“
The
failure to state reasons may have the opposite effect. In
addition, should the matter be taken on appeal, as happened in
this
case, the Court of Appeal has a similar interest in knowing why the
Judge who heard the matter made the order which he
did.”
That the Labour Appeal
Court considered the employer’s application for leave to appeal
without requiring Nel AJ to supply
reasons, and without in their
absence furnishing its own, is most regrettable. The application
before that Court gave to it
the opportunity that Nel AJ let slip
through his fingers, namely to give the employer reasons for its
failed attempt to review
the CCMA outcome.
In
Mphahlele
,
8
this Court noted that there is no express constitutional provision
requiring the judges to furnish reasons for their decisions
(and on
this basis upheld the long-standing practice of the Supreme Court
of Appeal not to furnish reasons when determining
applications for
leave to appeal). We add that there is likewise no express
statutory provision requiring judges who have
given judgment
ex
tempore
to furnish written reasons when later required.
Nonetheless, as this Court pointed out in
Mphahlele
, a
reasoned judgment is indispensable to the appeal process. Judges
ordinarily account for their decision by giving reasons
– and the
rule of law requires that they should not act arbitrarily and that
they be accountable. Furnishing reasons—
“
explains
to the parties, and to the public at large which has an interest in
courts being open and transparent, why a case is
decided as it is.
It is a discipline which curbs arbitrary judicial decisions. Then,
too, it is essential for the appeal
process, enabling the losing
party to take an informed decision as to whether or not to appeal
or, where necessary, seek leave
to appeal. It assists the appeal
Court to decide whether or not the order of the lower court is
correct. And finally, it
provides guidance to the public in
respect of similar matters.”
9
The Court in
Mphahlele
added that it may well be that where a decision is subject to
appeal it would ordinarily be a violation of the constitutional

right of access to courts, if reasons were to be withheld by a
judicial officer. Although that opinion was tentatively expressed,

there is much to support it. It is not necessary to decide the
point generally, since we have not had the benefit of hearing
oral
argument in this matter. However, the failure by Nel AJ to furnish
his reasons, when requested for the appeal process,
cuts right
across the employer’s right of access to courts.
10
It is a grave matter when
courts themselves infringe rights in the Bill of Rights and it must
be hoped that this occurrence
is and will remain extremely rare.
The application for leave
to appeal is dismissed with costs.
Langa CJ, Moseneke DCJ,
Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Skweyiya
J, Van der Westhuizen J and Yacoob
J.
1
66 of 1995.
2
Compare
Murray v Minister of Defence
[2008] ZASCA 44
;
[2008]
3 All SA 66
(SCA);
[2008] 6 BCLR 513
(SCA) at paras 12 and 67.
3
See
Mphahlele v First National Bank of South Africa Ltd
[1999]
ZACC 1
;
1999 (2) SA 667
(CC);
1999 (3) BCLR 253
(CC).
4
Applying
National Union of Metalworkers and Others v Fry’s
Metals (Pty) Ltd
[2005] ZASCA 39
;
2005 (5) SA 433
(SCA).
5
Shoprite Checkers (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[2008] ZASCA 24
;
2009 (3)
SA 493
(SCA) at para 34.
6
Netherburn Engineering CC t/a Netherburn
Ceramics v Mudau and Others
[2009]
ZACC 10
, as yet unreported
.
7
1983 (3) SA 27
(A) at 28.
8
Above n 3.
9
Id at para 12.
10
Section 34 of the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal
or forum.
”