Member Of Executive Council: Police Roads and Transport (Free State Provincial Government) v General Public Service Sectoral Bargaining Council and Others (JR1151/19) [2024] ZALCJHB 278 (26 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1151/19

In the matter between

THE MEMBER OF THE EXECUTIVE COUNCIL:

POLICE, ROADS & TRANSPORT

(FREE STATE PROVINCIAL GOVERNMENT)

Applicant

And

GENERAL PUBLIC SERVICE

SECTORAL BARGAINING COUNCIL

First Respondent

LUFUNO RAMABULANA, NO

Second Respondent

PUBLIC SERVANTS ASSOCIATION (PSA)

OBO R BOTHA & L DUNN-RADILE

Third Respondent

Heard: 11 April 2024

Delivered: 26 July 2024

JUDGMENT

HITCHINGS, AJ

Introduction

[1] This is an application by the applicant employer to review and set aside an award of an arbitrator who had found that the employees in question had been procedurally and substantively unfairly dismissed at an internal disciplinary hearing and had ordered their

reinstatement.

[2] The applicant is the MEC: Police, Roads and Transport of the Free State Provincial Government. The applicant was represented before me by Adv. A B Omar.

[3] The first respondent is the General Public Service Sectoral Bargaining Council (bargaining council). The bargaining council

participated in these proceedings only for the limited purpose of opposing the applicant’s contention that the arbitrator had not been properly accredited to conduct the arbitration. The bargaining council was represented by Mr D Masher.

[4] The second respondent is Mr L Ramabulana (arbitrator) who is cited in his capacity as arbitrator acting under the auspices of the bargaining council. The arbitrator did not participate in these proceedings.

[5] The third respondent is the Public Servants Association (PSA), a registered trade union acting on behalf of two of its members who are employees of the applicant, Mr R Botha and Ms L Dunn-Radile (collectively, the employees). At the relevant time, Mr Botha was a Director: Fleet Management and Ms Dunn-Radile was the Chief Financial Officer: Fleet Management. Adv. W van Aswegen appeared for the PSA.

[6] The history of this matter is largely common cause.

Background

[7] The charges relate to two submissions which contained certain recommendations, both ostensibly drafted and submitted by the

employees jointly during January 2011 and December 2011, respectively.

[8] The introductory paragraph of the January 2011 submission read as follows:

‘To seek approval for the placement and upgrade of personnel within Fleet Management according to the approved organisational structure of the Department of Police, Roads and Transport.’

[9] The stated “purpose” of the January 2011 submission was ‘To obtain approval for the placement and upgrade of personnel within Fleet Management according to the approved organisational structure of the Fleet Management.’

[10] The recommendation of the January 2011 submission was framed as follows:

‘It is recommended that approval be granted for the employment of the current incumbents of the posts in the upgraded posts above effective from 1 February 2011 as outlined in the attached Annexure A and B.’

[11] On the face of it (for reasons which will in due course appear, I use this phrase advisedly) the January 2011 submission was recommended for approval by Adv MS Msibi, Head: Fleet Management and thereafter approved by the then MEC responsible for the Department, Mr Manyoni.

[12] The January 2011 recommendation was partly implemented. However, soon after the commencement of the implementation, in a letter dated 16 February 2011, the then-former Acting HOD, Mr Mokhesi reversed the process on the basis that the upgrading of positions had not been preceded by a job evaluation process.

[13] The second submission, that is the December 2011 submission, reflected its purpose as follows:

‘To seek approval for the implementation of the placement and upgrade of the personnel within the Fleet Management according to the approved Organisational Structure of Fleet Management as per the approval dated the 0

[14] The “recommendations” were set out as follows:

‘It is recommended that approval be granted for the implementation of the upgrading and placement of Fleet Management staff is approved by the previous MEC responsible for the portfolio of Police, Roads and Transport and that the job evaluation be proceeded with

simultaneously with the process of cleaning the Persal as per the approved rollout plan.’

[15] It appears (again, I use the word advisedly) from the December 2011 submission that it was recommended by Adv MS Msibi as “Head: Government Garage”, Mr K Mhetoa as “Chief Director: Corporate Services” and Mr SJ Msibi as “HOD: Police, Roads & Transport”.[1] It was approved by Mr B Khomphela as “MEC: Police, Roads and Transport”.

[16] On 13 December 2011, that is the day following the approval of the December 2011 submission, Mr SJ Msibi gave instructions that the upgrading of posts was not to be implemented because a proper job evaluation process had not been carried out.

[17] On 18 June 2013, the PSA referred a dispute concerning the interpretation or application of clause 4.3 of Chapter XXXVI of the PSCBC Resolution 3 of 1999 to arbitration. The respondent was the Free State Department of Police, Roads and Transport. In essence, the dispute related to the Department’s failure to implement the approved December 2011 submission.

[18] The ensuing arbitration award in favour of the PSA was made on 31 October 2013[2]. This award, which I will refer to as “the van Aarde award” prompted the then HOD, Mr SJ Msibi, to instruct the then Director: Labour Relations, Mr Bangani towards the end of 2013 to investigate the circumstances surrounding the Department having committed itself to upgrading the posts. The investigation began in April 2014. It is uncertain when the investigation ended, and no written report was submitted.

[19] The initial charge sheets were served on Ms Dunn-Radile in June 2015 and on Mr Botha in December 2015. Both employees were suspended on full pay in October 2015.

[20] The internal disciplinary proceedings against the employees were finalised during January 2017. The outcome of these internal

disciplinary proceedings was a finding that the employees were guilty of misconduct and they were dismissed.

[21] The PSA, acting on behalf of the employees, referred a dispute to the bargaining council.

[22] At the arbitration proceedings, the applicant led the evidence of three witnesses, none of whom had personal knowledge of the facts and circumstances to which the charges related. The applicant’s case is characterised more by the witnesses that it did not call than by the witnesses that it did call. I will return to this issue later in this judgment.

[23] The PSA led the evidence of the two employees and that of Adv. MS Msibi, who had been the head of fleet management at the relevant time when the submissions were made. All three witnesses called by the PSA were involved and accordingly had personal knowledge of the facts and circumstances which gave rise to the charges.

[24] The arbitration proceedings commenced on 27 August 2018 and were concluded on 6 November 2018. As set out above, the arbitrator eventually held that the dismissal had been procedurally and substantively unfair, and ordered the reinstatement of the employees. The arbitrator’s award dated 28 February 2019 was published on 16 April 2019 – approximately a month later than the 14-day period provided for in sections 138 (7) (a) of the Labour Relations Act[3] (LRA).

[25] The guiding principles for the adjudication of reviews in terms of section 145 of the LRA have been set out in a number of judgments. The judgment in Head of the Department of Education v Mofokeng and Others[4] is one of them. I will for the sake of completeness highlight the principles which apply to the present application for review.

[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However … before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.

[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds … The court must nonetheless

still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably

reached in the light of the issues and the evidence.

[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to “defects” as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. … Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.

[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. [Footnotes omitted]

The charges

[26] The following dicta of Murphy AJA in the well-known case of EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[5] bear repetition:

‘One of the key elements of fairness is that an employee must be made aware of the charges against him. It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them.’

[27] The charges against each of the employees were essentially the same.

[28] The respective charge sheets certainly did not meet the test of being “precisely formulated”. The charges were all couched with unnecessary legal formalism and tautology which made them read more like a charge sheet in a criminal trial. The draughtsman clearly attempted to cover as many factual permutations as he or she could contrive. This approach resulted in the formulation of the charges being calculated to obfuscate rather than to precisely formulate their essence.

[29] The charge sheet consisted of “charge one” which was headed “gross of (sic) misconduct: gross dishonesty”, and an alternative charge headed “gross misconduct: gross negligence”. There was no “charge two”. The charge

sheets spanned some six pages each. I will refer to the charge relating to gross dishonesty as “the main charge”, and

the alternative charge relating to gross negligence as “the alternative charge”. I will not burden this judgment with a reproduction of the charge sheets, but will simply summarise the essential allegations and quote certain germane portions thereof.

[30] Charge one comprised two counts of gross dishonesty based on an allegations that the respective employees had made fraudulent

misrepresentations to various superiors in their two joint submissions.

[31] Count one related to the joint submission made in January 2011 and count two related to the joint submission made in December 2011.

[32] Paragraph 1.1.1 of the charge sheet related to count one, whilst paragraph 1.1.2 related to count two.

[33] In paragraph 1.1.1 (a) of the charge sheet the misrepresentation complained of was expressed as being that:

‘… there was an approved organisational structure of the Fleet Management and accordingly recommended that the former MEC should approve the placement and upgrade of personnel within Fleet Management.’

[34] The relevant portion of paragraph 1.1.1 (b), which as already stated, relates to count one, read as follows:

‘(b) At the time when you and Ms Laura Dunn Radile made the aforementioned fraudulent misrepresentations and/or allow (sic) the aforesaid

fraudulent misrepresentations to be made you well knew or you ought reasonably to have known that there had not been any newly approved organisational structure of Fleet Management and/or finalised job evaluation, and that the former MEC therefore could not approve ‘the placement and upgrade of personnel within Fleet Management’ without the positions having been evaluated.’

[35] Paragraph 1.1.2 (a), which related to count two, set out allegations of fraudulent misrepresentation in the employees’ joint submission dated 12 December 2011. Unlike the allegations relating to count one, the allegations set out in count two included certain further allegations relating to the results which flowed from the joint submission of 12 December 2011, and in particular, alleged in paragraph 1.1.2 (b) that on 13 December 2011 the submission had been supported by Adv. Msibi as the Head of Fleet Management and by the late Mr SJ Msibi as HOD of the Department, and had thereafter been approved by Mr B Komphela as MEC.

[36] Paragraph 1.1.2 (c) proceeded with allegations which were repetitive of what was set out in paragraph 1.1.1 (b) quoted above, but added a further allegation that:

‘Furthermore, you well knew or ought reasonably to have known that you could not rely on the previous approval of upgrading of positions of employees by the previous MEC, Mr Manyoni, because the latter’s approval was equally unlawful and irregular.’

[37] Paragraphs 1.2, 1.3 and 1.4 all related to both counts. Paragraphs 1.2 and 1.4 set out the alleged breaches committed by the employees in making the respective submissions of January and December 2011. These breaches were described as follows:

37.1. a breach of the Free State Provincial Government: Job Evaluation Implementation Strategy, the Public Service Regulations and Chapter XXXIV of the PSCBC Resolution 3 of 1999;

37.2. the conduct complained of constituted a breach of

‘… your duty of good faith and honesty towards the Department as your employer in terms of common law, clauses C.1.3, C.1.4 and C.4.8 of the Code of Conduct in the Public Service, your contract of employment and items 1, 6, 8, 27 and 28 of Annexure “A” to Chapter 7 of the Senior Management Service Handbook… Financial misconduct as well as unauthorised expenditure, irregular expenditure and fruitless and wasteful expenditure in terms of the relevant provisions of the PFMA.’

[38] Paragraph 2.1 of the alternative charge set out the following allegation:

‘You are charged with gross misconduct, to wit, gross negligence based on all the facts and/or circumstances set out in paragraphs 1.1.1 and 1.1.2 of Charge One above.’

[39] In paragraph 2.2 the allegation was made that

‘Your aforementioned conduct or omission is prejudicial to the administration, discipline and efficiency of the Department. The Department suffered the aforementioned prejudice in circumstances whereby a reasonable official occupying the position of a Director:

Transport (Fleet Management) in the public service and therefore part of senior management of the Department would, by exercising

reasonable care, due diligence and acting in the best interest of the Department, have avoided and/or prevented prejudice or potential

prejudice or loss to the Department.’

[40] Paragraph 2.3 contained the allegations that

‘Furthermore, your conduct or omission as set out under this charge is in breach of items 4, 6, 8 and 28 of Annexure “A” of Chapter 7 of the Senior Management Service Handbook as well as in breach of clauses C.4.8 and C.4.11 of the code of Conduct for the Public Service.’

[41] In summary, the main charge of “gross misconduct: gross dishonesty” related to an allegation that the submissions and recommendations made by the employees in the January 2011 and December 2011 submissions contained fraudulent misrepresentations to the effect that the precondition for the placement and upgrade of personnel within Fleet Management had been met. This precondition was that a job evaluation which resulted in an approved organisational structure of Fleet Management had been conducted. The alternative

charge of “gross misconduct: gross negligence” was that the submissions had been made with gross negligence.

[42] I need not dwell on the unnecessarily complicated formulation of the main charges levelled against the employees, because at the hearing before me, Mr Omar indicated, wisely in my view, that he would not be pressing for a finding that the employees had made fraudulent misrepresentations, but rather that they had made negligent misrepresentations – whether grossly or otherwise. Mr Omar did however emphasise that the applicant did not concede that the employees’ conduct had not been fraudulent.

Grounds of review

[43] In a verbose and tautologous founding affidavit spanning some 177 pages – 55 pages of affidavit and 124 pages of annexures – the applicant raised 19 grounds of review. His 64-page heads of argument, which had not been drawn or signed by Mr Omar, were similarly merciless in their tautology and verbosity.

[44] The applicant expressed the 19 grounds of review in wide general terms contending that the award should be set aside “on various grounds including gross irregularity, gross misconduct, gross unreasonableness or lack of rationality, biasness (sic) as well as the [arbitrator’s] misdirection and failure to apply his mind to the facts and evidence presented before him during arbitration proceedings”. This shotgun approach has been deprecated by this Court and suggests a lack of appreciation of the principles applicable to review

applications as opposed to appeals.[6]

[45] I will accordingly not approach this review application in a piecemeal fashion, dissecting each and every facet of the arbitrator’s award. The test remains whether, on a conspectus of all the material before him, the arbitrator’s decision falls within the band of decisions which a reasonable arbitrator could have made in the circumstances.

[46] The grounds of review can be grouped into three categories: the first category relates to the question of whether the arbitrator was legally competent to act as such, the second category relates to procedural fairness and the third category to substantive fairness.

The first category: accreditation of the arbitrator

[47] The issue dealt with in this category was raised by the applicant as his nineteenth ground of review. Because it may be dispositive of the whole matter, I will deal with it first. It is to the effect that the arbitrator had not been accredited by the Commission for Conciliation, Mediation and Arbitration (CCMA) and was therefore not empowered to perform the duties of an arbitrator to resolve disputes in terms of the LRA. Similar to questions of jurisdiction, this issue must be dealt with on an objective basis in order to establish whether the arbitrator was properly empowered. The test is one of correctness as opposed to fairness.

[48] This issue arose after the applicant’s attorney, unhappy with the manner in which the arbitration had been conducted and with the award itself, had made enquiries into the arbitrator’s competence to conduct the arbitration. His enquiries led to him establish that, at the time of the arbitration, the arbitrator had not been accredited by the governing body of the CCMA to conduct arbitrations for the bargaining council. This much was common cause between the parties[7].

[49] It was also common cause between the parties that the applicant and the employees were parties to the bargaining council in terms of section 51 (1) (a) read with section 51 (2) (a) (ii), that the arbitrator had been appointed by the bargaining council and that he had accordingly acted under its auspices. It was also not in dispute that the bargaining council (as opposed to the arbitrator) had been accredited by the governing body of the CCMA to conduct dispute resolution functions.

[50] The applicant contended that the arbitrator was required to have been personally accredited by the governing body of the CCMA to arbitrate the dispute. Both the bargaining council and the employees disputed this contention.

[51] The applicant furthermore contended that since the arbitrator had not been so accredited, the entire arbitration proceedings were rendered null and void. The bargaining council and the employees disagreed with this contention.

[52] It seems to me that the applicant is correct in its contention that, if it were to be found that the arbitrator had not been entitled to act as such, the arbitration proceedings would be rendered null and void.[8]

[53] The question then, is this: Must an arbitrator appointed to arbitrate a dispute under the auspices of a bargaining council be personally accredited by the governing body of the CCMA to do so, and if so, under what circumstances?

The employer’s contentions

[54] As I understood Mr Omar, his argument was as follows. The discretion of an accredited bargaining council to confer the powers of a commissioner contemplated in section 142 could only, so his argument ran, be exercised by a person who, firstly, had been accredited by the governing body of the CCMA to do so and, secondly, had been appointed by a bargaining council in terms of its constitution to resolve disputes.

[55] The applicant’s reasoning underpinning this contention commenced with section 128 which is headed “General provisions

relating to accreditation”.

[56] Section 128 (3) (a) (i) reads as follows:

‘An accredited council may confer on any person who is accredited by the governing body and appointed by the council to resolve a dispute, the powers of a commissioner in terms of section 142, read with the changes required by the context.’

[57] Mr Omar then referred to the Department of Labour Notice 732 of 2017, published in Government Gazette 41132 on 22 September 2017, which applied at the time when the arbitrator acted as such in the present matter.

[58] This notice was headed “Terms of accreditation for conciliation, arbitration and enquiry by arbitrator”. I will refer to it as “the accreditation notice”.

[59] He emphasised the following sentence in paragraph 2 of the notice which is headed “Powers of accreditation”:

‘Only those persons who are accredited by the CCMA, or are part-time Commissioners appointed by The Governing Body of the Commission in Terms of Section 117 (2) of the Labour Relations Act, may perform the accreditation functions of the council for the Council.’

[60] He did not refer to the sub-paragraphs which follow this paragraph. I will do so later in this judgment.

[61] Mr Omar referred me to the reported judgment of National Union of Metalworkers of SA & another v Wainright NO & Others[9] (NUMSA) in which Venter AJ stated:

‘As it is a requirement for bargaining councils and the commissioners who conduct dispute-resolution processes at the bargaining councils to be accredited by the CCMA, I am of the view that the CCMA’s Mission and Vision Statement and Code of Conduct for Commissioners (the code) are applicable not only to the commissioners of the CCMA but all commissioners exercising their functions as such in the CCMA and bargaining councils.’ [Own emphasis]

[62] Thus, so the argument ran, since the arbitrator in casu had not been accredited by the CCMA, there had been a reviewable irregularity which, in accordance with the judgment in Gurriah[10], vitiated the proceedings in toto.

The bargaining council’s contentions

[63] Mr Masher agreed that the arbitrator had not been “accredited by the CCMA” but argued that there had been no requirement for him to be so accredited. He referred to sections 51 (1) to (3) and 52 (1) which provide as follows:

‘51 Dispute resolution functions of council

(1) In this section, dispute means any dispute about a matter of mutual interest between –

(a) on the one side –

(i) one or more trade unions;

(ii) one or more employees; or

(iii) one or more trade unions and one or more employees; and

(b) on the other side –

(iv) one or more employers' organisations;

(v) one or more employers; or

(vi) one or more employers' organisations and one or more employers.

(2) (a)(i) The parties to a council must attempt to resolve any dispute between themselves in accordance with the constitution of the council.

(ii) For the purposes of subparagraph (i), a party to a council includes the members of any registered trade union or registered employers' organisation that is a party to the council.

(b) Any party to a dispute who is not a party to a council but who falls within the registered scope of the council may refer the dispute to the council in writing.

(c) The party who refers the dispute to the council must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(3) If a dispute is referred to a council in terms of this Act and any party to that dispute is not a party to that council, the council must attempt to resolve the dispute –

(a) through conciliation; and

(b) if the dispute remains unresolved after conciliation, the council must arbitrate the dispute if –

(i) this Act requires arbitration and any party to the dispute has requested that it be resolved through arbitration; or

(ii) all the parties to the dispute consent to arbitration under the auspices of the council.

52 Accreditation of council or appointment of accredited agency

(1) With a view to performing its dispute resolution functions in terms of section 51 (3), every council must –

(a) apply to the governing body of the Commission for accreditation to perform those functions; or

(b) appoint an accredited agency to perform those of the functions referred to in section 51 (3) for which the council is not accredited.’

[64] Mr Masher argued that section 52 (1) (a) makes it clear that accreditation by the governing body of the CCMA is required only if section 51 (3) applies – that is, only when any party to the dispute is not a party to the bargaining council in question. Since both the applicant and the employees were parties to the bargaining council, section 51 (2) (a) (i) applied, and the parties were required to “attempt to resolve any dispute between themselves in accordance with the constitution of the council”. (Own emphasis added)

[65] The constitution of the bargaining council was attached to the bargaining council’s answering affidavit filed in response to the applicant’s supplementary affidavit which introduced the issue of accreditation. In terms of clause 15.9 (c) of the bargaining council’s constitution, it must hold an annual general meeting at which, amongst other things, the following must be dealt with:

‘the appointment of a panel of conciliators and the panel of arbitrators for purposes of conducting dispute resolution…’

[66] With reference to paragraph 8 of Annexure A to the bargaining council’s constitution relating to the appointment of panellists contemplated in clause 15.9 (c) of its constitution, Mr Masher argued that persons appointed to its panel of arbitrators need not be accredited by the governing body of the CCMA. I will deal with paragraph 8 of Annexure A in more detail hereunder.

[67] The bargaining council’s response to the applicant’s reliance on sections 127 and 128 was essentially that these sections did not apply in the present circumstances because, in terms of section 51 (2) (a), the bargaining council did not require

accreditation to resolve disputes between persons who were parties to it (that is, to the bargaining council).

[68] Thus, so the bargaining council’s argument continued, the accreditation notice had to be interpreted in light of sections 51 and 52 and therefore, the condition contained in paragraph 2 of the accreditation notice was not applicable where all parties to the dispute in question were parties to the bargaining council.

Discussion on accreditation

[69] The point of departure is Part F of Chapter III of the LRA, which is headed “General provisions concerning councils (ss 49-63)”.

[70] The dispute resolution functions of bargaining councils are set out in section 51 which I have recorded above.

[71] The accreditation of bargaining councils is dealt with in section 52, which I have also recorded above.

[72] Essentially, section 51 requires bargaining councils to attempt to resolve any disputes of mutual interest in two scenarios, namely:

72.1. in terms of subsection (1), where all the parties to the dispute are parties to the bargaining council;

or

72.2. in terms of subsection (2) (b), where any party to the dispute is not a party to the bargaining council, but who falls within the registered scope of that bargaining council may refer the dispute to such bargaining council in writing.

[73] In the former case, that is, where all the parties to the dispute are also parties to the bargaining council, the bargaining council must, in terms of section 51 (2) (a) (i) attempt to resolve dispute in accordance with its constitution.

[74] In the latter case, that is where any party to the dispute is a third party, the bargaining council must in terms of section 51 (3) attempt to resolve the dispute through firstly conciliation, and if conciliation fails, then by arbitration if the requirements set out in section 51 (3) (b) have been met. In order to perform conciliation and arbitration functions in these circumstances, the bargaining council must, in terms of section 52 (1) (a), apply to the governing body of the CCMA for accreditation to perform them.[11]

[75] Section 127 provides for the accreditation contemplated in section 51 (3). Section 127 is contained in Part B of Chapter VII of the LRA which is headed “Accreditation of and subsidy to councils and private agencies”.

[76] The accreditation notice referred to above relates to the period 1 June 2017 to 31 May 2020. It applies to various bargaining councils, of which the GPSSBC is one.

[77] The arbitration proceedings to which this review application relates commenced on 27 August 2018 and the award was published on 16 April 2019, although it is dated 28 February 2019.

[78] It appears to me that the validity of the appointment of the arbitrator to act as such must accordingly be determined with

reference to the legislative matrix as it pertained at the date that arbitration proceedings commenced. I make this point because section 127 (1) was amended with effect from 1 January 2019, that is, after the commencement of the arbitration proceedings but before the arbitrator had made his award. However, as it turns out, the amendment related only to private agencies and did not affect the accreditation of bargaining councils. The amendment thus had no bearing on the present dispute.

[79] Prior to its amendment with effect from 1 January 2019[12], section 127 (1) read as follows:

‘(1) Any council or private agency may apply to the governing body in the prescribed form for accreditation to perform any of the following functions –

(a) resolving disputes through conciliation; and

(b) arbitrating disputes that remain unresolved after conciliation, if this Act requires arbitration.’

[80] Section 127 (5A) requires the governing body of the CCMA to annually publish a list of accredited councils and accredited agencies.

Although not expressly so stated in the notice itself, the accreditation notice referred to earlier in this judgment appears to

have been published in terms of section 127 (5A). The accreditation notice describes its purpose in the following introductory sentence:

‘Please find set out below a list of bargaining councils that have been accredited by the CCMA in terms of the provisions of the Labour Relations Act 66 of 1995 (as amended) for conciliation and/ or arbitration and/ or inquiry by arbitrator, with the terms of accreditation attached for the period 01 June 2017 to the (sic) 31 May 2020.’

[81] The third page of the notice reflects that the “General Public Service Sectoral Bargaining Council” (which is the bargaining council in casu) was:

‘Accredited for conciliation and arbitration (including enquiry by Arbitrator) from 01 July 2017 until 30 June 2020 on condition that the settlement rate, postponement/adjournment rate efficiencies are improved upon, equitable distribution of work across different races and genders is met and that all sections 198 and 198A to 198C-matters are allocated to only those part-time Commissioners who have been successfully trained by the CCMA on sections 198 and its insertions.’

[82] Page 5 of the accreditation notice sets out the powers that the accredited bargaining councils reflected in the notice are entitled to exercise. These powers are expressed as follows

‘2. POWERS OF ACCREDITATION

Only those persons who are accredited by the CCMA, or are part-time Commissioners appointed by the Governing Body of the Commission in the terms of section 117 (2) of the Labour Relations Act, may perform the accreditation functions of the council for the Council.

The following provisions of the LRA, as amended apply to Councils accredited for conciliation and arbitration”

(a) For the purpose of this paragraph any reference in Part C of Chapter VII of the LRA[13] to:

“Commission” must be read as a reference to the Council;

“Commissioner” must be read as a reference to a conciliator or arbitrator appointed by the Council

“Director” must be read as a reference to the Secretary of the Council

(b) The provisions of the sections contained in Part C of Chapter VII (section 127(6)[14]) of the LRA shall apply to the Council in the performance of its accredited functions subject to the Council's Constitution and/or Collective Agreements. For the purpose of this sub-paragraph the following applies:

(i) The provisions of section 133 to 136;

(ii) The provisions of section 138 to 142, S142A S143, S144 and S145;

(iii) The provisions of section 146 unless the Collective Agreement of the Council provides that the Arbitration Act, Act 42 of 1965 applies to any arbitration conducted under its accredited function and which Collective Agreement is binding on the parties to the disputes: and

(iv) The provisions of section 148.’ [Own emphasis added]

[83] In line with the provisions of the LRA set out in the accreditation notice, the notice differentiates between “accreditation functions” on the one hand and “dispute resolution functions” on the other. Some, but not all dispute resolution functions[15], may be performed by an accredited bargaining council. No accreditation functions may be performed by bargaining councils: only

persons who have been accredited by the CCMA or part-time commissioners may perform accreditation functions of the council for

the council.

[84] Having set out the general framework of accreditation, I turn to the facts of this case. Both the applicant and the employees (that is, the parties to the dispute) are parties to the bargaining council. The bargaining council was accordingly enjoined in terms of section 51 (2) (a) (i) to attempt to resolve their dispute in accordance with its constitution. The bargaining council’s dispute resolution accreditation, as reflected in paragraph 2 (b) at page 5 of the accreditation notice[16], reflects this position.

[85] The arbitrator was appointed by the bargaining council in accordance with clauses 15.9(c) of its constitution and paragraph 8 of Annexure A to its constitution.

[86] I could find no provision in the LRA, and nor could counsel point me to any, which provides that an arbitrator acting in circumstances

such as the present is required to be accredited by the governing body of the CCMA.

[87] Simply by way of contrast, I point out that section 128 (3) (a) (i) specifically provides for accreditation by the governing body of the CCMA of a person appointed by a bargaining council. This section reads

‘An accredited council may confer on any person who is accredited by the governing body and appointed by the council to resolve a dispute, the powers of a commissioner in terms of section 142, read with the changes required by the context.’

[88] Section 142 in the main refers to a commissioner’s right (and by virtue of section 128 (3) (a) (i), an authorised arbitrator’s

right) to subpoena witnesses, including those who are not parties to a bargaining council or directly interested in the dispute. The obvious reason for requiring in these circumstances that an arbitrator appointed by a bargaining council should also be accredited by the CCMA is that the legislature wished to protect third parties from being subjected to wanton invasions of their rights.

[89] I turn to deal with the NUMSA judgment[17] to which Mr Omar referred me, the relevant portion of which I have already quoted in full. It will be recalled that the relevant portion of this judgment by Venter AJ reads that:

‘… as it is a requirement for bargaining councils and the commissioners who conduct dispute resolution processes at the bargaining councils to be accredited by the CCMA…’[18]

[90] The matter came before the learned judge as an application to review and set aside an arbitrator’s award in which he had held that the dismissal of the applicant-employee had been fair. The learned judge characterised the grounds for review as being that the arbitrator had

‘… committed gross irregularities in the conduct of the arbitration proceedings and committed gross misconduct in inter alia proceeding with the arbitration proceedings in the absence of [the employee’s] representative and in coming to a finding in absence of [the employee’s] version.’ [19]

[91] The issue before the learned judge did not relate to the requirements of accreditation as in the present matter, but rather to the manner in which commissioners and arbitrators should conduct themselves in the exercise of their functions in resolving disputes. I respectfully align myself with the views expressed by the learned judge in this regard. The learned judge criticised the conduct of the arbitrator and reviewed and set the award aside on the strength of such conduct.

[92] Not surprisingly, given the nature of the dispute that was before him, Venter AJ did not refer to, and by inference did not consider sections 51, 52, 127 or 128 of the LRA. These provisions were simply not relevant to the issue before him. In my respectful view, the learned judge’s statement that “it is a requirement for bargaining councils and the commissioners who conduct dispute resolution processes at the bargaining councils to be accredited by the CCMA” was not essential for his findings concerning the standards of conduct which apply to arbitrators in the performance of their dispute resolution functions in terms of the LRA. I therefore consider this statement to be obiter dictum which, although of persuasive value, I am not bound to follow. If this statement was not made obiter, I am, for the reasons set out above, unable to agree with the learned judge.

[93] In short, I disagree that that the NUMSA judgment can be relied upon to support the applicant’s argument that the arbitrator ought to have been accredited by the governing body of the CCMA.

[94] In further support of his argument that CCMA accreditation of all arbitrators was required, the applicant also referred me to the following passage in Gurriah[20], which because of his strenuous reliance on this passage, I need to set out in full:

‘Turning to the question of the Commissioner’s qualification as an arbitrator, it was contended on behalf of the First Respondent

[employer] that the Commissioner had at the time, yet to complete “the conciliation arbitration course” but that he had been accredited for both “conciliations and arbitrations” for a period of one year. It is difficult to understand this reasoning. If the Commissioner had yet to complete the course, he surely would not have been accredited to perform the functions of a commissioner. The ground upon which it was submitted that the Commissioner exceeded his powers relates only to the lack of

accreditation in respect of the functions of an arbitrator. Therefore, and supported by the First Respondent [bargaining council]’s contention, the Commissioner is found not to have been accredited to arbitrate disputes at the time. Although reference was made to the Third Respondent’s Policy document in regard to the appointment, review and re-appointment of its panel of Conciliators and Arbitrators at page 27 of the Applicant [trade union]’s Indexed documents, no evidence was presented as to whether the Commissioner falls within the ambit of Clause 3 or Clause 4 thereof. In summary, Clause 3 of the document relates to the Third Respondent’s criteria for the initial appointment of a candidate, whereas Clause 4 deals with the re-appointment of a panelist. It is a requirement in terms of Clause 3 that the candidate must be accredited by the CCMA as a “conciliator/arbitrator”.

Clause 4 however, contains no such requirement. However, as the Commissioner’s status as an arbitrator was placed in issue and as it was not disputed that such an issue existed, it may therefore be concluded that the Commissioner was in the initial stages of his appointment to the Third Respondent’s “External Panel”. It is unfortunate that the Third Respondent did not respond to the court’s invitation to make submissions on the matter. In any event, no evidence was presented either as to whether the Commissioner was aware or could reasonably have been aware of his lack of accreditation in respect of arbitration hearings. In this regard, the Third respondent must surely take responsibility for having allocated a matter for adjudication to a Commissioner who did not have the necessary qualification at the time. Section 52 (1) of the LRA provides as follows:

…

In my view, the LRA places the duty on the council, therefore the Third Respondent, to apply to the Commission for accreditation to perform the functions that its external panelists (sic) perform as conciliators and arbitrators. In the ordinary course of events, the matter had been allocated to the Commissioner; he had simply done what was required of him as an external panelist of the Third

Respondent. However, in view of the finding that the Commissioner did not have the necessary qualification at the time to perform the duties of an arbitrator, by arbitrating the matter he had exceeded his powers. Therefore the application stands to be granted on this further ground.’

[95] Two things need to be noted from this extract from Pather AJ’s judgment. Firstly, in order to determine whether the arbitrator had been properly accredited to conduct arbitrations, the learned judge referred to the bargaining council’s “Policy document” (and not to any provision in the LRA requiring accreditation by the CCMA) “in regard to the appointment, review and re-appointment of its panel of Conciliators and Arbitrators”. Secondly, the learned judge pointed out that in terms of the bargaining council’s policy it “is a requirement in terms of Clause 3 that the candidate must be accredited by the CCMA as a “conciliator/arbitrator”.

Clause 4 however, contains no such requirement.” Clause 4 dealt with the re-appointment of panellists. Panellists who fell within the scope of Clause 4 of the policy did not require CCMA accreditation. On the facts before him, the learned judge found that the arbitrator in question had been a panellist contemplated in clause 3 of the bargaining council’s policy and therefore that he ought to have been accredited by the CCMA. The corollary of this finding is that, had the arbitrator been a panellist contemplated in clause 4, he would not have required CCMA accreditation. The reasoning is clear: before a panellist contemplated in clause 3 could be re-appointed in terms of clause 4, he would have been previously have been accredited by the CCMA, thus ensuring the proverbial quality check. Clause 4 did not require that the panellist’s

accreditation should be current; it simply contemplated that the relevant panellist had previously been accredited by the CCMA to conduct dispute resolution functions.

[96] Pather AJ’s reference to section 52 (1) and to “external panelists” demonstrates that he was dealing with a situation contemplated in section 51 (3), that is, where one or more of the parties before the arbitrator were not parties to the bargaining council.

[97] In the present matter, as already pointed out, it was common cause that all the parties involved in the arbitration proceedings were parties to the bargaining council. Thus section 52 (1) did not apply the arbitration proceedings in casu.

[98] Therefore, the judgment in Gurriah does not assist the applicant – indeed, it supports the principle that not all panellists appointed by a bargaining council are required to be accredited by the CCMA to perform dispute resolution functions. The required qualifications are, in terms of section 51 (2) (a)(i), to be found in the bargaining council’s constitution.

[99] This then brings me to the bargaining council’s constitution. Clause 15.9 (c) of the constitution requires the bargaining council to annually appoint a panel of conciliators and a panel of arbitrators for purposes of conducting dispute resolution. Annexure A to the constitution is headed “Dispute Resolution Procedures of Council”. Paragraphs 8.1 and 8.2 read as follows:

‘8.1 The Council must, in terms of clause 15.9(c) of the constitution, at its Annual General Meeting appoint from the nominations received from the parties for a period of one year –

(a) a panel of conciliators to conciliate disputes, and

(b) a panel of arbitrators to arbitrate disputes.

8.2 In making such appointment the Council must ensure that the panels –

(a) are drawn from each of the 9 provinces having regard to the anticipated number of disputes that are likely to arise in each province and the number of employees employed in national and provincial departments in the various provinces;

(b) have skill and experience in labour relations, knowledge about the public service and knowledge or experience in conciliation and/or arbitration; and

(c) are broadly representative of South African society.’

[100] The constitution does not require that panellists must be accredited by the CCMA.

[101] The difference between sections 51 and 52 as far as the present matter is concerned needs to be emphasised. Viewed holistically,

section 51 relates to the resolution of disputes where all the parties to the dispute are parties to the relevant bargaining council. Section 52 relates to those instances where one of the parties to the dispute is not a party to the relevant bargaining council. In the former case, that is section 51, the bargaining council must appoint panellists in terms of its constitution. In the latter case, that is section 52, the bargaining council must apply to the CCMA for accreditation.

[102] It was not in dispute that the arbitrator in casu had, in terms of the bargaining council’s constitution, been duly appointed by the bargaining council to act as an arbitrator in the dispute between the parties. No accreditation by the CCMA was required.

[103] In the result, I find that the arbitrator was properly appointed to act as such.

The second category

[104] The second category is comprised of process-related grounds.

Exclusion from the proceedings

[105] The first and second grounds of review relate to the rather startling proposition that the arbitrator committed an act of “misconduct” and a “gross irregularity in the conduct of the arbitration proceedings” by declining the applicant’s application to exclude Ms Dunn-Radile from the hearing during Mr Botha’s testimony.

[106] It is an undeniable basic tenet of our jurisprudence that a person who stands accused of wrongdoing has the right to face his accuser and witnesses testifying for or against him.[21] I have had regard to the authorities cited by the applicant in support of his novel contention that employees charged with misconduct are not entitled to be present during the testimony of his or her co-accused employee. These authorities do not support the applicant’s

contention. Thus, by way of example, the principle in S v Nkomo[22] cited by the applicant in his heads of argument, has no bearing on the present matter. The passage relied upon by the applicant reflects the following:

‘It is necessary at this stage to make the following comments. In the first place, there is no obligation whatsoever upon an accused person to testify before his witnesses are called. He is perfectly entitled to say “I wish my witnesses to testify before I give evidence”, or even to say “I wish them to testify before I elect whether or not I will give evidence or make an unsworn statement or myself remain silent”. Secondly there is no obligation upon an accused person to tell the court what his witnesses will say in evidence.’

[107] On the contrary, it would, to my mind, be highly prejudicial and constitute a gross irregularity impinging on the rules of natural justice if an accused-employee were to be denied the opportunity to be present during the testimony of his or her co-accused.

[108] To his credit, Mr Omar did not press the applicant’s contention that an employee was not entitled to be present during the testimony of his or her co-accused employee.

[109] I accordingly find that there is no merit in the applicant’s objection to Ms Dunn-Radile not having been excluded from the proceedings whilst Mr Botha was testifying.

Excessive delay

[110] The third ground of review relates to the applicant’s argument that the arbitrator had committed a reviewable irregularity by finding that there had been an excessive delay in disciplining the employees.

[111] As appears from the common cause facts, which I have outlined above, the conduct complained of took place in January and December 2011. The initial charge sheets were served on Ms Dunn-Radile in June 2015 and on Mr Botha in December 2015. Both employees were suspended on full pay in October 2015. This suspension has remained in place since then, (effectively depriving the State of their services whilst it paid them their full salaries for nearly eight years).

[112] As far as Ms Dunn-Radile is concerned, the delay in instituting the disciplinary proceedings against her was some four and a half years in respect of count one and four years in respect of count two. The delay in Mr Botha’s case was approximately four years in respect of count one and nearly five years in respect of count two.

[113] As reluctantly conceded by Mr Omar, all the facts and circumstances necessary to charge the employees with the misconduct reflected in the charge sheet were known, or ought to have been known, to the applicant and his co-signatories (all of whom were the employees’ superiors) when the submissions were submitted to them. The irony is inescapable. The very facts and circumstances that the employees stand accused of misrepresenting, were facts and circumstances which the co-signatories to the submissions ought to have been aware of. Indeed, as I will discuss later in this judgment, the very persons who were alleged to have been the victims of the misrepresentations were parties to the genesis of the submissions.

[114] It will be recalled that the applicant’s decisions to approve and implement each of the submissions were reversed shortly after such approval had been given. In the circumstances, the applicant was in a position to institute the misconduct proceedings against the employees in January 2011 and in December 2011 when the submissions were approved. If one has regard to the dates when the implementation of the approved respective submissions was stopped, the applicant was in possession of all the necessary information to charge the employees as far as the January 2011 submission is concerned on 16 February 2011 when the Acting HOD, Mr Mokhesi stopped the further implementation and on 13 December 2011 when Mr Msibi gave the instruction not to proceed with the implementation of the December 2011 submission. The reasons given by both Mr Mokhesi and Mr Msibi for the suspension of the implementation of the respective submissions was the fact that job evaluations had not been carried out – the very misrepresentation that the employees stood accused of.

[115] None of the players who were involved in causing this delay were called to testify at the arbitration proceedings. Mr Mojai, the only witness who did testify about the cause of the delay simply expressed his own speculative opinion, which even if it had been first-hand evidence, was palpably insufficient to justify the delay. In response to a question as to why there had been such a delay, Mr Mojai simply responded:

‘Maybe the matter was complex, Commissioner.’

[116] The applicant also attempted to explain the delay away on the basis that the van Aarde award had triggered an investigation which ultimately resulted in the employees being charged. The van Aarde award was made in November 2013. It added nothing new to what the applicant had already known during January and December 2011. The investigation itself was directed at establishing how it had come about that the Department had committed itself to upgrading the posts. Then followed an unexplained further almost two-year delay before the employees were charged.

[117] I now turn to deal with the principles relating to what would constitute an unreasonable delay.

[118] A delay does not per se constitute unfairness.[23] The principles in relation to delays in cases such as the present were detailed in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others[24] (Stokwe).

[119] For present purposes the following principles espoused in Stokwe[25] bear emphasis:

119.1. “There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case”.

119.2. For a delay to be characterised as unfair it must be unreasonable. The longer the delay, the more likely it is that it would be unreasonable.

119.3. “… the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness”.

119.4. “It must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process”.

119.5. “Did the delay cause material prejudice to the employee?”

119.6. “The nature of the alleged offence must be taken into account … [T]he nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable”.

119.7. “All the above considerations must be applied, not individually, but holistically”.

[120] If one has regard to each of these factors holistically, it seems clear to me that the arbitrator’s finding that there had been an unreasonable delay in taking disciplinary action against the employees falls within the band of reasonable findings.

Forfeiture of right to discipline

[121] The fifth and sixth grounds of review relate to the arbitrator’s finding that the excessive delay in charging the employees had resulted in the applicant forfeiting its right to discipline them. The arbitrator found as follows:

‘106 I conclude that the applicants are on point when they claimed that the employer delayed in instituting disciplinary actions against them and potentially lost the right to charge them. Their right to a fair disciplinary process was tempered (sic: the word should be “tampered”) with to their prejudice.

107 I conclude that the employer forfeited the right to subject the applicants to disciplinary processes, this in effect means the

applicant (sic) are successful in the case and are entitled to a relief. I however believe it is appropriate to also deal with the merits of the case as presented to me.’

[122] The arbitrator appears to have confused procedural fairness with substantive fairness because an unreasonable delay in instituting disciplinary action affects procedural fairness and not substantive fairness. Thus for example, in Stokwe[26] the Constitutional Court held that the unreasonable delay in instituting the disciplinary action against the employee rendered the proceedings procedurally unfair. It then went on to find that the employee’s conduct had been so egregious that it rendered her dismissal substantively fair. The Court remitted the matter to the Labour Court to determine an appropriate sanction.

[123] Of course, as the arbitrator indicated that he would, he went on to examine the issue of substantive fairness and ultimately concluded that the employees’ dismissal had been substantively unfair. The arbitrator’s error in finding that the applicant had forfeited his right to discipline the employees does not go to the root of his award, and certainly does not vitiate it.

Bias

[124] The eleventh and eighteenth grounds of review deal with the applicant’s contention that the arbitrator was biased. The relevant principles as they apply to this matter were detailed by the Labour Appeal Court in Impala Platinum Ltd v Jansen and others[27]. I do not propose to analyse the applicant’s complaints, suffice it to state that on a proper reading of the transcribed record, I could find no evidence of bias on the part of the arbitrator.

[125] In any event, in so far as the applicant was legally represented at the arbitration it ought to have applied for the arbitrator’s recusal as soon as he believed that the arbitrator was biased.[28] He failed to do so. One is forced to conclude that the applicant included his allegations of bias as a makeweight to add to his long list of alleged reviewable misconduct.

Waiver

[126] The fifteenth ground of review related to the arbitrator’s finding in relation to the issue of whether or not the applicant had waived its right to discipline the employees. The employees argued that it could correctly be assumed that the applicant had waived its right to dismiss the employees. The applicant argued that there was no proof of a waiver. Apart from the fact that there appears to me to have been insufficient evidence to support a finding of waiver, this issue falls to be resolved in accordance with the principles set out by Whitcher J in Cibane and Another v Premier of the Province of Kwazulu-Natal and Another:[29]

‘But, more importantly and decisively, there is eminent authority that no public entity may renounce a right introduced not only for its own benefit, but in the interests of the public as well; waiver is not possible where performance by a state official is invested with any substantial degree of public interest; and no public entity can renounce a right which its duty to the public.’

[127] I accordingly agree with the applicant that the PSA failed to prove that the employer had waived its right to discipline the employees. On a holistic view of the arbitrator’s award, this finding is however not dispositive of the review application.

Section 138 (7)

[128] The seventeenth ground of review is to the effect that the arbitrator “breached his statutory duty in terms of section 138 (7) and (8) of the Act thereby committing a gross misconduct in relation to the duties of the commissioner as the arbitrator”. The applicant does not appear to argue that the approximately one month’s delay in the arbitrator furnishing his award of itself vitiated his award. However, if this were to be his argument, it is without merit. The following dicta of Molahlehi J in Mosome v General Public Service Sectoral Bargaining Council (GPSSBC)[30] are apposite:

‘[16] … The applicant contends in this respect that the arbitration award was handed down after 14 days contrary to the provisions of section 138 (7) (a) of the LRA. This issue received attention in a number of judgements of the Labour court.

[17] In AA Ball (Pty) Ltd v Kolisi, the applicant contended that a proper interpretation of section 138(7) of the LRA was that once the 14 days have expired the Commissioner was no longer competent to issue an award. In dealing with this issue the court held that:

'The above directions seem to be imperative. The Act is however silent on what the consequences are if the Commissioner does not comply with the time provisions set out in section 138 of the Act or if no extension is granted on good cause shown. I do not understand non-compliance with section 138 of the Act to constitute a "defect" as envisaged in section 145 of the Act. In my view, an award which is handed down a few days late cannot amount to misconduct in relation to the duties of the Commissioner (section 145(2)(a)(i)). Neither can it be construed as a "gross irregularity"(section 145(2)(a)(ii)) or conduct equal to the Commissioner exceeding the commissioner's powers (section 142(2)(a)(iii)).'

17] In State Mining Association Ltd t/a Alpha Farm v SACCAWU & Another, the court held that:

'It is quite clear that having regard to human nature, an arbitrator may not always be able to sign and issue an award within the 14-day period. If a arbitrator were to sign or to issue the award after that period, it would not be in accordance with the aims of this Act to visit such an omission with invalidity. If that were to be done it would simply mean that the dispute had not reached finality and the arbitration proceedings would have to take place de novo. This could not have been intended. There may, of course, be circumstances where an award is issued so late that different consequences may follow.'

[18] I align myself with the above authorities and find that although the delay in issuing the award was regrettably excessive it would not be in the interest of justice to visit it with invalidity. [Footnotes omitted]

[129] In the result, the delay in publishing the arbitrator’s award does not ipso facto visit it with invalidity. In the present case, I see no reason why it should.

[130] Taking an overall view, and despite my disagreement with the arbitrator on certain issues, I believe that his decision that the proceedings were procedurally unfair is one which falls within the band of reasonable decisions which he could have made on the material before him.

The third category

[131] The third category of grounds relied upon by the applicant relates to the issue of substantive fairness.

[132] I will not fall into the trap of dealing with each of the grounds of review raised as if this were an appeal.[31] I will adopt an holistic view of the evidence that was presented to the arbitrator and decide, not whether I agree with his reasoning or even his ultimate award, but rather whether his award was one which fell within the band of awards that a reasonable arbitrator could make taking account of the material before him.

[133] It goes without saying that the applicant was required to prove all the elements of the misconduct with which the employees had been charged. It should at least have led evidence to prove that the submissions and recommendations made by the employees had been made negligently and that those to whom the representations were made were misled by them.

[134] It will be recalled that charge one had two counts.

[135] The alleged misrepresentation in count one was to the effect that the submission of 20 January 2011 related to the contention that various superiors and “any official/s or person/s” who read the submission “that there was an was an approved organisational structure of the Fleet Management in place in place”. The charge proceeded to allege that each of the employees “well knew or ought reasonably to have known that there had not been any newly approved organisational structure of fleet management and/or finalised job evaluation…”[32], and that therefore, the recommendations could not be approved.

[136] Mr Botha was a Director: Fleet Management; Ms Dunn-Radile held the position of Chief Financial Officer: Fleet Management. No evidence was led to support the allegation that officials in the position of the employees ought to have had the specialised knowledge relating to human resource requirements applicable to their submissions.

[137] The applicant also produced no evidence as to whether the persons to whom the submissions and recommendations were circulated for approval (or disapproval, for that matter) were misled by the alleged misrepresentations. The applicant’s contention that the charge sheets were in any event wide enough to cover misrepresentations to “any official/s or person/s” who read the submission does not bear scrutiny. No person testified, let alone was identified, as having been misled by anything stated in the submissions. The applicant furnished no explanation for its failure to call any one of the persons to whom the alleged misrepresentations had been made. This fact must be read with the evidence of Adv. Msibi, the former Head of Fleet Management and the person who during the arbitration proceedings testified that he (and not the employees) had drafted two submissions and that he had prevailed upon them as their superior, to sign the submissions. He testified as follows during his cross-examination:

‘MR MSIBI: That is the standard practice and maybe I must also venture to say I am not too sure of these misrepresentations, because I had an opportunity to engage with the two MECs and all of them still confirm that they have never been misled and they wondered why they were not called, because I had to ask them that I am coming to testify on something and you guys know what happened and as late as yesterday MEC Khompela said I am available to be called, as well as Thabo Manyoni, and I think we can confirm with them.

MR LEBEA: When you say we confirm with them, I do not know what do they say, but all I am just simply saying to you that the document, what the, this document, I am saying that if the document is a misrepresentation it is not what I asked you, that if the document contains

misrepresentation of fact or it is slanderous to some people then the submitter of the document is as guilty as the author of the document.

MR MSIBI: Unfortunately there is no misrepresentation and I am unable to speculate on it.’

[138] He also testified as follows:

‘MR GREEF: Mr Msibi or Advocate Msibi, the contention of the employer in the cases against the two applicants, is that including you on page 168 and then eventually Mr Thabo Manyoni which is the, was at that stage the MEC for Police, Roads and Transport, that you were misled by Mr Botha and Ms Dunn-Radile in to believe or to exclude processes and so forth. Were you at any stage or did you feel or do you still now and maybe at that stage as well, were you misled or did you feel that you were misled?

MR MSIBI: I find it inconsistent with the decision taken. That was a decision of mine and if it was MEC wise, HOD wise, I was (indistinct) and the executives, all of (inaudible) as well as Chief Directors and Deputies were in that meeting. That is a decision of the meeting and the resolution that was taken. I think if the Department can give the minutes thereto, they will also see that there was a resolution taken. So you cannot be misled on the resolution taken.

MR GREEF: Mr Manyoni, was he also in that meeting?

MR MSIBI: Yes, the MECs, it is the Executive Managers meeting.

MR GREEF: So and he signed. Do you feel that he was also misled in any way?

MR MSIBI: It is after the presentation was made. In that (indistinct) presentation in the executive (indistinct) resources, I think it was (Inaudible) at that time and you will have the DGD of Roads, (inaudible) Trosky, you will have the Legal (Inaudible), you will have Finance, you will have (inaudible). That is how we composed the management (indistinct). That meeting was normally chaired by the MEC.’

[139] The upshot of this evidence was that the persons whom the employees were alleged to have misled were themselves part of the

decision-making process which had led to the submissions being made. Indeed, the applicant himself chaired the meetings at which the relevant resolutions were passed. These resolutions led to the submissions being drafted.

[140] It is clear that the arbitrator accepted the evidence of Adv. Msibi. I see no reason why he ought not to have done so. Adv. Msibi’s evidence is important in a number of respects. Firstly, he confirmed that he was the author and driving force behind both submissions. Secondly, he confirmed that the employees were not out on a frolic of their own, but were carrying out the instructions of their superiors to whom the submissions were addressed. Thirdly, he confirmed that the submissions did not constitute misrepresentations to the intended recipients. Fourthly, and perhaps most importantly, he confirmed that both MEC Khompela and Thabo Manyoni (both of whom were alleged to have been misled by the submissions) denied having been misled by the submissions and furthermore, confirmed their availability and willingness to testify.

[141] The obvious inference to be drawn from the applicant’s failure to call these two witnesses was that their evidence would be contrary to its case. In this regard the following passage in Tshishonga v Minister of Justice and Constitutional Development and Another[33], is instructive:

‘The failure of a party to call a witness is excusable in certain circumstances, such as when the opposition fails to make out a prima facie case. But an adverse inference must be drawn if a party fails to testify or produce evidence of a witness who is available and able to elucidate the facts, as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him, or even damage his case. That inference is strengthened if the witnesses have a public duty to testify.’ [Footnotes omitted, own emphasis added]

[142] In short, the evidence of Adv. Msibi sounds the death knell of the applicant’s case against the employees.

[143] On an overall conspectus of the evidence presented to the arbitrator one thing is clear: the submissions did not emanate from the employees. They were drafted by their superior, Adv. Msibi who requested them to sign the submissions for onward consideration by their superiors.

[144] The remaining separate grounds of review can be summarised as being directed at the applicant’s submission that the arbitrator’s decision was not one which fell within the band of reasonable decisions which could have been made in the light of the evidentiary material which was before him. None of them persuade me that the arbitrator’s finding that the applicant’s dismissal had been substantively unfair did not fall within the band of decisions that a reasonable arbitrator could have made on a conspectus of the material placed before him.

[145] I have considered the issue of costs. There is to my mind no reason why I should not apply the usual principle that, particularly where there will be an ongoing employment relationship, there should be no order as to costs.

[146] I accordingly make the following order:

Order

1. The application is dismissed.

5. There is no order as to costs.

BD Hitchings

Acting Judge of the Labour Court of South Africa

Appearances: For the applicant: Adv A B Omar Instructed by: Lebea & Associates, Johannesburg For the first respondent: Mr M Masher Instructed by: Edward Nathan Sonnenbergs Inc, Johannesburg For the third respondent: Adv W A Van Aswegen Instructed by: Haarhoffs Inc, Kimberley

[1] Mr SJ Msibi passed away before the commencement of the arbitration proceedings.

[2] This Court subsequently reviewed and set aside the award and referred the dispute back to the bargaining council for determination de novo. On 5 October 2017 the PSA withdrew its referral.

[3] 66 of 1995, as amended.

[4] [2014] ZALAC 50; (2015) 36 ILJ 2802 (LAC).

[5] [2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC) at para [15].

[6] See Nemukhovhani v General Public Service Sector Bargaining Council and Others (JR80/2021) [2023] ZALCJHB 88 (23 March 2023) at para [63].

[7] Interestingly enough, the arbitrator had previously been accredited by the CCMA to conduct dispute resolution functions, but his accreditation was no longer current when he conducted the arbitration in question.

[8] See: Independent Municipal and Allied Trade Union obo Gurriah v Ethekwini Municipality and Others (D350/09) [2012] ZALCD 23 (14 April 2012) (Gurriah).

[9] [2015] ZALCJHB 48; (2015) 36 ILJ 2097 (LC) at para [32].

[10] Supra fn 8.

[11] It may in terms of section 52 (1) (b) choose to “appoint an accredited agency to perform those of the functions referred to in section 51 (3) for which the council is not accredited”.

[12] Section 127 (1) in its present form reads: ‘Any council or private agency may apply to the governing body in the prescribed form for accreditation and for accreditation of the persons to perform any of the following functions – (a) resolving disputes through conciliation; and (b) arbitrating disputes that remain unresolved after conciliation, if this Act requires arbitration.’

[12] Section 127 (1) in its present form reads:

‘Any council or private agency may apply to the governing body in the prescribed form for accreditation and for accreditation of the persons to perform any of the following functions –

(a) resolving disputes through conciliation; and

(b) arbitrating disputes that remain unresolved after conciliation, if this Act requires arbitration.’

[13] Sections 133 to 150D.

[14] Section 127 (6) provides: ”The terms of accreditation must state the extent to which the provisions of each section in Part C of this Chapter apply to the accredited

council or accredited agency”.

[15] Section 127 (1) and 127 (2). See paragraph 1 of the accreditation notice headed “Scope of Accreditation”.

[16] See paragraph 64 above

[17] NUMSA supra fn 9.

[18] Ibid at para [32].

[19] Ibid at para [20].

[20] Supra at para [22].

[21] There are limited exceptions to this rule, none of which find application in the present matter. For a criminal law perspective,

see the useful article by F Cassim, "The Accused's Right to be Present: A Key to Meaningful Participation in the Criminal Process", Comparative and International Law Journal of Southern Africa, vol. 38 no. 2, 01 Jul 2005.

[22] 1975 (3) SA 598 (N) at 601H.

[23] Stokwe v member of the Sierra Council: Department of Education, Eastern Cape and Others [2018] ZACC; (2019) 40 ILJ 773 (CC) at para [70].

[24] Ibid at paras [71] - [74].

[25] Ibid para [72]. See also Moroenyane v Station Commander of the South African Police Services - Vanderbijlpark (J1672/2016) [2016] ZALCJHB 330 (26 August 2016) at para [42].

[26] Supra at fn 26.

[27] [2017] 4 BLLR 325 (LAC) (Impala) at paras [21] - [30].

[28] Cf Impala supra at para [30].

[29] [2023] ZALCD 19; (2024) 45 ILJ 533 (LC) at para [36]. The learned judge also cited Die Suider-Afrikaaanse Kooperatiewe Sitrousbeurs Beperk v Die Direkteur-Generaal: Handel en Nywerheid and another [1997] ZASCA 6; 1997 (3) SA 236 (SCA) in which this principle was enunciated.

[30] (JR1495/09) [2012] ZALCJHB 91 (31 August 2012).

[31] See: Mapyane v South African Police Service and Others [2023] ZALCJHB 344; (2024) 45 ILJ 564 (LC) at para [36] and the judgments referred to by the learned Judge.

[32] The charge sheet confusingly alleges fraud, but in the same breath alleges negligence in the charge of fraud.

[33] 2007 (4) SA 135 (LC) at para [112].