Mashigo v Safety and Security Sectoral Bargaining Council and Others (JR 269/2020) [2022] ZALCJHB 141; (2022) 43 ILJ 2042 (LC) (1 June 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JR 269/2020

In the matter between:

RICHARD MOSOTENGE MASHIGO

Applicant

and

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL

First Respondent

DUMISANE NGWENYA N.O

Second Respondent

SOUTH AFRICAN POLICE SERVICES

Third Respondent

Heard: 26 May 2022

Delivered: 01 June 2022

(In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 01 June 2022.)

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award issued on 4 December 2019 wherein the Second Respondent (arbitrator) found his dismissal to be fair. The application for review was filed late and for this, the Applicant seeks condonation.

[2] The Third Respondent (SAPS) opposed the application for review, but the condonation application is unopposed.

[3] I have considered the application for condonation and applying the applicable legal principles, I am satisfied that a case has been made out for condonation to be granted.

Brief history

[4] The Respondent employed the Applicant on 17 July 1991 and at the time of his dismissal, he held the rank of warrant officer. The Applicant was dismissed on 6 March 2012, pursuant to the outcome of a disciplinary hearing. He was charged with misconduct and found guilty on charges relating to assault and attempted murder, following a shooting incident on 24 September 2010.

[5] The Applicant filed an internal appeal and on 16 July 2012, the Appeals Authority confirmed the finding of guilty as well as the sanction of dismissal. In August 2012, the Applicant referred an unfair dismissal dispute to the First Respondent (bargaining council). The presiding arbitrator found his dismissal substantively unfair and ordered the Applicant’s retrospective reinstatement with effect from 31 July 2012 and with backpay up to 4 May 2015.

[6] The Respondent approached this Court to review the arbitration award, which application was successful. The arbitration award was reviewed and set aside and the matter was remitted to the bargaining council for a hearing de novo. The Applicant appealed against the Labour Court judgment and on 31 May 2018, the Labour Appeal Court (LAC) dismissed the appeal.

[7] The dispute was remitted to the bargaining council for a hearing de novo and an arbitration award was issued on 4 December 2019. The Applicant’s dismissal was found to be substantively fair. The aforesaid arbitration award is the subject of this review application.

The arbitration proceedings

[8] Pursuant to the Court order which remitted the matter for a hearing de novo, the bargaining council had set the matter down for arbitration.

[9] On 12 August 2019, the legal representatives of the Applicant and the Respondent signed a pre-arbitration minute. They agreed on inter alia the common cause facts and the issues the arbitrator has to decide. The parties specifically agreed to a common bundle, they admitted the correctness of the contents of the documents to be used as documentary evidence, that the parties would submit written submissions and that the record of the disciplinary hearing and previous arbitration proceedings ‘must be admitted as evidence of the arbitration’. The parties further agreed that no witnesses will be called.

[10] In SA Breweries (Pty) Ltd v Louw,[1] the LAC was required to, inter alia, determine a complaint by the appellant that the Court a quo decided the case on factual issues not properly put before it on the pleadings, nor as refined in the pre-trial conference minute. On the issue of a pre-trial minute the LAC held that:[2]

‘The relationship between the pleadings and the pre-trial conference minute has been the subject of several judicial pronouncements[3]. In short, a minute of this sort is an agreement from which one cannot unilaterally resile. Also, a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a minute; if it does, it is necessary that that change go hand in hand with a necessary amendment. The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Properly applied, a typical minute – cum – agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.’

[11] It is common cause that in the first arbitration hearing the Applicant testified, as well as the four witnesses called by the Respondent.

[12] In the arbitration award, the arbitrator recorded that the parties elected not to lead evidence, but tendered a joint bundle of documents consisting of the disciplinary hearing record and the first arbitration proceedings, which they agreed would constitute the record of this arbitration. The parties also filed written closing arguments.

The review application

[13] The Applicant seeks to review the arbitration award wherein the arbitrator found that his dismissal was fair. He seeks an order that the matter be remitted for a hearing de novo before another commissioner and the relief sought by the Applicant is premised on the fact that he ‘never testified in the arbitration proceedings’.

[14] The main ground for review is that notwithstanding the fact that the Labour Court remitted the matter for an arbitration de novo, the arbitrator allowed the use of the record of the previous arbitration proceedings, which included the transcript and the bundle of documents. The arbitrator did not deal with the arbitration de novo as no witness testified in the arbitration hearing to deal with the documents before the arbitrator.

[15] The Respondent’s case is that the common bundle the parties agreed to included the LAC bundle and the oral evidence of the Applicant and the Respondent’s witnesses. The Applicant’s attorneys of record represented him at all material times, from arbitration to the LAC and given the involvement of the parties and the long history of the matter, it was agreed that only legal issues would be addressed, based on the oral evidence that was already adduced. The parties agreed to admit the oral evidence

contained in the LAC record, without recalling any of the witnesses. The parties were familiar with the facts of the matter up to the level of the LAC and the decision to admit the available oral evidence as evidence in the second arbitration, was an informed and practical decision.

[16] In short, the Applicant’s case is this: the arbitrator committed a gross irregularity by not dealing with the arbitration as an arbitration de novo, but instead merely considered previous evidence and the record of the arbitration. The arbitration should have taken place de novo in its entirety and not merely based on the ‘old evidence’ of the previous arbitration. The main bone of contention is the fact that the Applicant did not testify and other witnesses were not called during the second arbitration hearing.

The arguments

[17] In argument, Mr Nysschens for the Applicant submitted that an arbitration can proceed in one of two possible ways: either by presenting and hearing oral evidence or in the absence of evidence, by way of a stated case.

[18] Authority for this proposition is SA Social Security Agency v National Education Health and Allied Workers Union on behalf of Punzi and others[4] (SASSA) where the Court considered the scenario where fairness was to be decided in the absence of a stated case and without parties giving

oral evidence. In SASSA, the parties submitted written submissions and the Court made it clear that such a process does not allow for a due and proper arbitration

of the dispute and concluded that:

‘In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed.’

[19] The Court further held that although there was nothing per se wrong with the aforesaid manner of conducting proceedings, it should not be agreed to or condoned where the question to be decided calls for evidence or where major disputes of fact exist.

[20] Mr Nysschens referred to the definition of a stated case, as was considered in National Union of Mineworkers and others v Hartebeestfontein Gold Mining Co Ltd[5]:

‘Provision is made in Rules of Court and in a number of statutes for the submission to a Court of questions of law "in the form of a special case". See for example, Rule 49(10) of the Uniform Rules of Court; proviso (i) to Appellate Division Rule 5(4)(c); s. 3(3) of the Admission of Persons to the Union Regulation Act 22 of 1913; s. 26(1) of the Workmen's Compensation Act 30 of 1941; s 20 of the Arbitration Act 42 of 1965; and s 30(1)(b) of the Stamp Duties Act 77 of 1968. In none of them is "special case" defined, presumably because the expression has an accepted meaning. Mozley & Whiteley's Law Dictionary 7th ed says sv "special case" that it is:

"1. A statement of facts agreed to on behalf of two or more litigant parties, and submitted for the opinion of a court of justice as to the law bearing upon the facts so stated."

Stroud's Judicial Dictionary 4th ed states that:

"A special case is a written statement of the facts in a litigation, agreed to by the parties, so that the court may decide these questions according to law ... It is also known as a case stated. "

This meaning is reflected in Rule 33 of the Uniform Rules of Court. It provides in subrule (1) that the parties to any dispute may, after institution of proceedings, agree upon a written statement of facts in the form of a special case for the adjudication of the Court, and in subrule 2(a) that:

"such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties and their contentions thereon".

It is, therefore, implicit in the expression "in the form of a special case" that there should be a statement of the facts

agreed by the parties.’

[21] Reference was also made to Arends and others v SA Local Government Bargaining Council and others[6] (Arends), where the LAC held that:

‘When parties desire to proceed without oral evidence in the form of a special case, it is imperative that there should be a written

statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. Alternatively, without such a statement, the question put is in danger of being abstract or academic. Courts of law and arbitration tribunals dealing with disputes of right exist for the settlement of concrete controversies

and not to pronounce upon abstract questions or to give advice upon differing contentions about the meaning of an agreement. Where a question of legal interpretation is submitted to an arbitrator, the parties must set out in the stated case a factual substratum which shows what has arisen and how it has arisen. The stated case must set out agreed facts, not assumptions. The purpose of the rule is to enable a case to be determined without the necessity of hearing the evidence.’

[22] The Applicant’s case is that in the absence of oral evidence, there must be a stated case and in casu, there was no stated case, wherefore the arbitrator’s conduct by considering old evidence of previous hearings, in the absence of a stated case, is irregular and constitutes misconduct which is reviewable.

[23] Ms Mofokeng for the Respondent submitted that the transcribed record of the disciplinary and arbitration proceedings was placed before the arbitrator and as such there was oral evidence. This is not a case where no evidence was adduced and there was no need for a stated case to be filed.

Analysis

[24] In SASSA, the Court remarked that it failed to comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case) without parties giving oral evidence. I share the same view.

[25] The issue to be decided in casu is whether the fairness of the Applicant’s dismissal was decided without oral evidence and whether it was required of the parties to file a stated case.

[26] In Hillside Aluminium (Pty) Ltd v Mathuse and others[7] (Hillside), this Court considered the status of evidence and held that:

‘[56] In litigation parties would prepare bundles of documents and the documents included in the trial bundles, would be included as documentary evidence which the parties intend to rely on in support of their respective cases. It is a common practice for parties to agree on the status of the documents to be included in the trial bundle.

[57] In my view there are three possible scenarios.

[58] The first scenario is where there is no agreement on the authenticity or status of documents or where the authenticity is disputed. In such instances the party wishing to produce a document and wants to rely on the document as evidence, has to prove the authenticity of the document by leading evidence and if the authenticity is not proved or admitted, the document is inadmissible, may not be used in cross-examination and cannot be considered as evidence.

[59] The second scenario is where parties agree that documents are what they purport to be. This means that the party wishing to rely on the document, does not have to prove the authenticity of the document but may lead evidence and rely on the document on the basis that it is what it purports to be. In this instance documents must be introduced as evidence and cross-examination on such documents is permissible. The presiding officer can accept the document as evidence insofar as it was properly introduced by witnesses. Where a document is agreed to be what it purports to be, but no evidence is adduced on the document, the presiding officer cannot mero motu consider such document as evidence merely because it is included in a trial bundle.

[60] The third scenario is where the parties agree that the documents in the bundle should be regarded as evidence. In this instance the presiding officer is entitled to accept the contents of the documentary evidence as if it were evidence adduced before him or her and even if no witness testifies about it, it can be considered as relevant and admissible evidence.

[61] Where the document is a transcript or record of another proceeding, the same principles apply. Where the parties agreed that the transcript is what it purports to be and a true reflection of what purports to be recorded, it means that the record is authentic and correctly reflects that the proceedings indeed took place. In this scenario contradictions in testimony could be canvassed during cross-examination. The presiding officer is entitled to consider the portions of the transcribed record that were introduced by witnesses, either in evidence in chief or cross-examination, as evidence. The presiding officer cannot merely accept the entire record as evidence, but can accept as evidence those portions introduced by witnesses.

[62] Where the parties agreed that the entire transcript should be regarded as evidence before the presiding officer, the entire record could be considered and accepted as if it was evidence that was adduced before the tribunal where it was introduced, without the need for evidence to be adduced on it. In this scenario the evidence given at the disciplinary hearing is regarded as evidence at the arbitration. This is an extraordinary scenario and requires an explicit and clear agreement between the parties.’

[27] In casu, the parties specifically agreed that the record of the disciplinary hearing and previous arbitration proceedings must be admitted as evidence of the arbitration and that no witnesses will be called. This agreement is in accordance with the third scenario, as set out in Hillside. The effect of the agreement is that the entire record, which included the transcript of the evidence previously adduced by the Applicant and the Respondent’s witnesses, could be considered and accepted as if it was evidence adduced before the arbitrator.

[28] The transcript of evidence, where witnesses were sworn in and testified under oath, where they adduced evidence and were cross-examined and where the parties’ cases were ventilated, constitutes evidence. The fact that the evidence is typed, instead of being orally presented, is of no moment as it remains evidence adduced by witnesses.

[29] The Applicant’s argument that absent a witness testifying in the flesh before the arbitrator, no evidence was adduced and only documents were placed before the arbitrator, wherefore a stated case was required, is unsustainable.

[30] The Applicant relied on SASSA and Arends in support for his contention that a stated case was required. In my view, reliance placed on the said authorities is misplaced. In SASSA and Arends the Court was faced with a scenario where the parties decided to proceed without any oral evidence. The Court held that when parties desire to proceed without oral evidence, it was imperative that there should be an agreed stated case, put differently, absent a stated case, oral evidence should be led on the material facts in dispute at the arbitration.

[31] In casu, oral evidence was presented and the transcript of the evidence so adduced was agreed to be evidence before the arbitrator. The effect of this is that, whatever the witnesses testified at the previous arbitration hearing became evidence before the arbitrator. The evidence was adduced under oath, it was based on the facts as presented by the witnesses, and it reflected the versions of the respective parties as evidence which was subjected to the scrutiny of cross-examination. The fact that the matter was remitted for an arbitration de novo, did not mean that the evidence was to be adduced all over again when it was already adduced and recorded.

[32] If the Applicant’s argument that a stated case was required is to be accepted, it would require of parties to agree to a stated case in all arbitrations where evidence is adduced.

[33] The transcribed record of the evidence previously adduced was properly placed before the arbitrator, it constituted evidence as if presented in the second arbitration and there was no need to file a stated case. The arbitrator did not commit misconduct, nor did it constitute an irregularity in the proceedings when the evidence so adduced was considered in the determination of the fairness of the Applicant’s dismissal.

[34] The ground for review raised by the Applicant has no merit and this application has to fail.

[35] In the premises I make the following order:

Order

1. The late filing of the review application is condoned;

2. The review application is dismissed;

3. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: J Nysschens from Johan Nysschens Attorneys

For the Third Respondent: Advocate A Mofokeng

Instructed by:

State Attorney

[1] (2018) 39 ILJ 189 (LAC)

[2] Ibid at para 8.

[3] See: Price N.O. v Allied - JBS Building Society 1980 (3) SA (AD) 874 at 882 D-E; Zondo v St Marks Church (2015) 36 ILJ 1386 (LC) at [10] – [11].

[4] (2015) 36 ILJ 2345 (LC) at para 8.

[5] 1986 (3) SA 53 (A) at 56G – J and 57A – C.

[6] (2015) 36 ILJ 1200 (LAC) at para 15.

[7] (2016) 37 ILJ 2082 (LC) at paras 56 – 62.