IPP Mining and Materials Handling (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration and Others (JR 1209/2020) [2024] ZALCJHB 294 (2 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1209/2020

In the matter between:

IPP MINING AND MATERIALS

HANDLING (PTY) LTD

Applicant

and

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

SIFISO NGALA N.O

Second Respondent

PHILEMON MOTSATSI

Third Respondent

Heard: 30 July 2024

Delivered: 2 August 2024

This judgment was handed down electronically by consent of the parties’ legal representatives by circulation to them via email. The date for hand-down is deemed to be 2 August 2024.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award dated 20 July 2020 wherein the Second Respondent (arbitrator) found that the Third Respondent’s (Respondent) dismissal was substantively unfair and was awarded compensation equivalent to six

months’ remuneration.

Background facts

[2] The Applicant employed the Respondent as a supervisor in February 2014. He was charged with misconduct relating to an incident in November 2019 and the charges related to dereliction of duty and being untrustworthy. Following a disciplinary hearing, the Respondent was found guilty and dismissed in February 2020.

[3] The Respondent subsequently referred an unfair dismissal dispute to the First Respondent (CCMA) and the dispute was arbitrated on 9 July 2020. After an analysis of the evidence, the arbitrator concluded that the Respondent’s dismissal was substantively unfair and he was awarded compensation.

[4] The arbitration award is the subject of this application for review.

[5] Before I deal with the grounds for review and the merits of this application, I deem it prudent to set out the relevant principles

applicable to review applications.

General principles

[6] Affidavits filed in review applications serve two primary purposes: to define the issues between the parties and to place the essential averments and evidence before the other parties and the Court. Rule 7A of the Labour Court Rules[1] (the Rules) in terms of which this application was brought, provides for the delivery of four sets of affidavits in review applications namely a founding, supplementary, answering and replying affidavit.

[7] Rule 7A(2)(c) of the Rules provides that the notice of motion must be supported by an affidavit, setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside. As to the requirement of setting out the legal grounds upon which the applicant relies in the founding affidavit, this requires the applicant to set out, with sufficient precision and detail, the grounds for review and the bases on which such grounds are relied upon.

[8] In recognition of the fact that the record obtained by an applicant in a review application may reveal that averments made in the founding affidavit were erroneously made or necessary averments were omitted, Rule 7A(8)(a) permits the applicant to deliver a supplementary affidavit within 10 days after the record is made available. This affords the applicant the opportunity to supplement and/or amend the factual and legal grounds upon which he or she relies in light of the record. A weak founding affidavit can be augmented by a supplementary affidavit.[2]

[9] As a general principle, the applicant in a review application must make out his or her case in the founding affidavit, as may be supplemented by a supplementary affidavit, if necessary, after the transcribed record becomes available.

[10] The role of the reviewing Court is limited to deciding issues that are raised in the applicant’s founding (and supplementary) affidavit. This was confirmed by the Constitutional Court in Commercial Workers Union of SA v Tao Ying Metal Industries and Others[3] (Tao Ying) where it was held that:

‘…the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. There is much to be said for the submission by the workers that it is not for the reviewing court to tell a litigant what it should complain about. In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application. A litigant may not on appeal raise a new ground of review. To permit a party to do so may very well undermine the objective of the LRA to have labour disputes resolved as speedily as possible.’

[11] A party who seeks to review an arbitration award is bound by the grounds for review contained in the review application, subject to one qualification namely that the Court is obliged to deal with a point of law apparent from the papers.[4]

[12] In short: it is critical that the factual foundation of the review application, including the relevant evidence or reference thereto, be canvassed in the founding or supplementary affidavit and that it be linked to the applicant’s grounds for review.

[13] Grounds for review cannot be formulated for the first time in heads of argument. In Northam Platinum Ltd v Fganyago NO and others[5] it was held that:

‘In my view the law is very clear that a ground for review raised for the first time in argument cannot be sustained. The basic principle is that a litigant is required to set out all the material facts on which he or she relies in challenging the reasonableness or otherwise of the commissioner's award in his or her founding affidavit.’

[14] The test to be applied on review as set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[6] is whether the decision reached by the arbitrator is one that a reasonable decision maker could not reach is well known and established.

[15] The review test is a stringent and conservative test of reasonableness. The applicant must show that the arbitrator arrived at an unreasonable result. The mere allegation that the outcome is unreasonable, is not sufficient.

[16] It is within the ambit of the aforesaid principles and the test to be applied on review, that the Applicant’s application for review is to be considered.

This application

[17] In casu, the Applicant filed a founding affidavit and no supplementary affidavit was filed. The grounds for review as set out in the Applicant’s founding affidavit are as follows:

17.1 The arbitrator committed misconduct in that he totally misconstrued the evidence and the nature of the inquiry in relation to the issue in question; and

17.2 The arbitrator failed to conduct a proper appraisal of critical portions of the evidence and argument.

[18] This is the sum total of the grounds for review raised by the Applicant.

[19] I will deal with the difficulties in the Applicant’s grounds for review.

[20] The first difficulty relates to the test to be applied. The test to be applied in casu is the one of reasonableness. The Applicant must show that ultimately, considering the evidence placed before him, the arbitrator arrived at an unreasonable result.

[21] There is not a single averment in the Applicant’s founding affidavit to the effect that the arbitrator’s findings or the ultimate outcome of the arbitration proceedings were unreasonable. ‘Unreasonableness’, the test to be applied in casu, does not feature in the Applicant’s pleaded case and the arbitration award is not attacked on the ground that it is unreasonable. In fact, there is not a single averment made to support a case on the basis that the outcome was unreasonable.

[22] The Applicant has failed to make the necessary allegations to sustain an application where a case has to be made out that the arbitration award and the ultimate outcome were unreasonable.

[23] Secondly, the grounds for review are extremely vague, unsubstantiated, not supported by any evidence and bereft of any detail. The attack on the arbitration award as set out in the founding affidavit, is evidently one which little thought went into.

[24] I already alluded to the fact that it is required that the Applicant sets out, with sufficient precision and detail, the facts and the bases relied upon in support of its grounds for review. There is not a single factual averment made to enable this Court to comprehend or assess the Applicant’s grounds for review. There is not one statement to support the grounds for review.

[25] In Tao Ying, it was confirmed that the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. This Court, sitting as a review Court, is not to embark on a fact-finding mission in order to find facts or evidence to support the Applicant’s grounds for review. It is the Applicant’s duty to tell this Court why the arbitration award is unreasonable, what evidence was misconstrued and which critical portions of the evidence adduced were not properly appraised.

[26] The Applicant did no more than launch a vague and unsubstantiated attack on the arbitrator’s findings and make bald allegations

which were not linked to the evidence or substantiated at all.

[27] The Applicant failed to set out the factual foundation of the review application, with relevant evidence or reference thereto, in the founding affidavit and as such, failed to make out a case on the grounds for review raised in its papers.

[28] The Applicant dismally failed to make out a case for review and it follows that the application for review has to fail.

Costs

[29] In so far as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness.

[30] The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a costs order.

[31] In Zungu v Premier of KwaZulu-Natal and Others[7], the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[32] Mr Khanya for the Respondent submitted that a cost order should be awarded in favour of the Respondent as the Applicant came to Court with an application without any substance as to why the arbitration award is to be reviewed. He further submitted that the Respondent has suffered prejudice and has to pay his lawyers from his own pocket in order to defend a meritless application.

[33] Mr Jordaan for the Applicant on the other hand submitted that there should be no order as to costs as the arbitrator made an error and the Applicant had no choice but to bring this application for review.

[34] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The generally accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[8], it was emphasized that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[35] In my view, this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success.

[36] The Applicant was required to set out, with sufficient precision and detail, the grounds for review and the bases on which such grounds are relied upon, to lay the factual foundation of the review application and to link the relevant evidence to the grounds for review.

[37] The Applicant is indeed within its rights to bring an application to review an arbitration award, but this right cannot be divorced from the obligation to set out the factual foundation of the review application and the relevant evidence linked to the grounds for review, supported by the evidence adduced at the arbitration proceedings. The Applicant dismally failed in this regard and presented grounds for review which are too vague and unsubstantiated, without any factual averment made to enable this Court to comprehend or to assess the grounds for review.

[38] Fairness dictates that the Respondent cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in when the Applicant approached this Court to review the arbitration award. The interests of justice will be best served by awarding a cost order in favour of the Respondent.

[39] In the premises, I make the following order:

Order

1. The review application is dismissed;

2. The Applicant is to pay the costs of the application, on a party and party scale.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant: Mr G Jordaan, union official from Employer’s Organisation of Mzanzi

On behalf of the Third Respondent: Mr S Khanya from Ismail & Dahya Attorneys

[1] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court.

[2] A Myburgh, C Bosch, ‘Reviews in the Labour Courts’, LexisNexis at pp 438 – 441.

[3] [2008] ZACC 15; (2008) 29 ILJ 2461 (CC) at para 67.

[4] Tao Ying supra at para 67.

[5] [2009] ZALCJHB; (2010) 31 ILJ 713 (LC) at para 27.

[6] [2007] ZACC 22; (2007) 28 ILJ 2405 (CC) at para 110.

[7] [2018] ZACC 1; (2018) 39 ILJ 523 (CC) at para 24.

[8] [2012] ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.