Mystra (Pty) Ltd t/a Silverton Spar and Tops v Thoka N.O. and Others (JR 416 / 20;JR 417 / 20;JR 418 / 20;JR 420 / 20;JR 421 / 20;JR 422 / 20;JR 423 / 20) [2022] ZALCJHB 290; (2023) 44 ILJ 204 (LC) (14 October 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

REPORTABLE

Case no: JR 416 / 20

In the matter between:

MYSTRA (PTY) LTD t/a SILVERTON SPAR

AND TOPS

Applicant

and

COMMISSIONER SEGOKODI THOKA N.O.

First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Second Respondent

DIRECTOR GENERAL: DEPARTMENT OF LABOUR

AND EMPLOYMENT obo SIPHIWE PATRICIA AND

28 OTHERS

Third Respondent

Case no: JR 417 / 20

VRESTHENA (PTY) LTD t/a RIETFONTEIN SPAR

AND ARBITRATION

Second Respondent

AND EMPLOYMENT obo CHIDO AND 58 OTHERS

Third Respondent

Case no: JR 418 / 20

MYSTRA (PTY) LTD t/a WEIRDA PARK SPAR

COMMISSIONER SEGOKODI THOKA N.O.

First Respondent

DIRECTOR GENERAL: DEPARTMENT OF LABOUR

AND EMPLOYMENT obo PRUDENCE DUBE AND

48 OTHERS

Third Respondent

Case no: JR 420 / 20

EUROTAS SUPERMARKET (PTY) LTD t/a ORCHARDS

SPAR AND TOPS

Applicant

COMMISSIONER SEGOKODI THOKA N.O.

First Respondent

AND EMPLOYMENT obo SAIDI AND 55 OTHERS

Third Respondent

Case no: JR 421 / 20

EUROTAS SUPERMARKET (PTY) LTD t/a MONTANA

AND EMPLOYMENT obo GEDION SEREME AND

165 OTHERS

Third Respondent

Case no: JR 422 / 20

SPARTI (PTY) LTO t/a DOORNPOORT SPAR

AND TOPS

First Respondent

COMMISSIONER SEGOKODI THOKA N.O.

Second Respondent

AND EMPLOYMENT obo MANDISA MATETA AND

25 OTHERS

Third Respondent

Case no: JR 423 / 20

MYSTRA SUPERMARKET (PTY) LTD t/a ZAMBESI

COMMISSION FOR CONCILIATION, MEDIATION

AND EMPLOYMENT obo KASU ALISTAIR AND

137 OTHERS

Third Respondent

Heard: 8 July 2022

Delivered: 14 October 2022

Summary: CCMA arbitration proceedings - misconduct by arbitrator - test for review - s 145(2) of LRA 1995 considered

BCEA 1997 - provisions of sections 69 and 73 considered - application to CCMA to make compliance order an arbitration award - sections 69 and 73 contemplating distinct and separate dispute procedures - applicable principles considered and applied

BCEA - provisions of section 73(2) considered - section contemplates a discretion - even though qualifying provisions of section 73(2) may be complied with, arbitrator must still exercise a discretion as to whether compliance order be made an arbitration award for the purposes of enforcement

CCMA Rules - Rule 31B considered - Rule applicable to application by the Director General: Labour to make compliance order an arbitration

award - process contemplated by Rule considered - Rule contemplates opposed motion proceedings - normal principles relating to resolution of factual disputes in motion proceedings applicable

CCMA Rules - Rule 318(8) and (9) considered - even though arbitrator is entitled to determine application on papers without convening hearing, this may not be appropriate or fair where application opposed - principles considered - material disputes of fact requiring oral hearing for fair and just determination of dispute

Review of arbitration award - conduct of commissioner in failing to convene a hearing constituting misconduct- failure of audi alteram partem in this instance - arbitration award vitiated as a result - award reviewed and set aside - matter remitted back to CCMA for oral hearing de novo

JUDGMENT

SNYMAN, AJ

Introduction

[1] Each of the individual applicant parties in ALL the above cited proceedings form part of what is called the GFT Group of Companies. The applicants all conduct business as Spar Supermarkets and Tops Liquor Stores. The applications stem from compliance proceedings instituted by the Department of Labour and Employment against each of the applicants, on behalf of employees employed by the applicants in their various businesses. The Department of Labour and Employment is the third respondent in each of the applications and will be referred to in this judgment as 'the DOL'. In each individual case, the DOL issued a compliance order against the applicants as contemplated by the Basic Conditions of Employment Act (BCEA),[1] and then sought to enforce those compliance orders through the Commission for Conciliation, Mediation and Arbitration (CCMA), the current second respondent in each of the applications. These enforcement proceedings all came before the first respondent as allocated arbitrator, and the first respondent then made each of the compliance orders an arbitration award for the purposes of enforcement, by way of separate awards in each matter. Dissatisfied with this state of affairs, each individual applicant party brought an individual review application in terms of Section 145 of the Labour Relations Act[2] ('the LRA') to this Court, seeking to review and set aside all these arbitration awards by the first respondent.

[2] Prior to these individual review applications coming before me for determination, the applicants sought to consolidate all the applications into one matter, which the third respondent was agreeable to. All the individual applications were on the roll before me on 8 July 2022. AT the outset, I was asked by the applicants to consolidate all the applications into one matter. The third respondent did not oppose the request. I accept that there is proper cause and reason to consolidate all the matters, and I therefore granted an order consolidating all the review applications into one single matter. Such order will be reflected at the end of this judgment. The applicants and the third respondent parties then argued the review applications on that basis, on 8 July 2022.

[3] In the end, the consolidated review applications did not turn on the substance of the compliance orders. Rather, the applications were founded on a contention by the applicants that the first respondent committed misconduct in the proceedings which gave rise to the various compliance orders being made arbitration awards. I will deal with this later in this judgment.

[4] In deciding this matter, I will now proceed to only summarize the facts relevant to deciding the applicants' principal· review ground relating to the alleged misconduct of the first respondent.

The relevant background

[5] As touched on above, the GFT Group of Companies conduct business as Spar Supermarket and Tops Liquor retail outlets/ stores. This Group has some 31 outlets, which includes the applicants in these proceedings, as individual corporate entities being part of the Group. For ease of reference in this judgment, and considering the consolidation of all the individual applications, I will refer to all the individual applicants by way of the Group designation of 'GFT', and thus where I refer to GFT in this judgement going forward, it must be considered to be a referral to the applicants.

[6] On 31 May 2019, the DOL informed GFT that it would be conducting a simultaneous joint inspection at several of the outlets of GFT, which inspection was to take place on 6 June 2019. This multiple site inspection then indeed happened on 6 June 2019, and the inspection then culminated in GFT being issued with individual compliance orders for each of the stores / outlets forming part of this consolidated review application. These compliance orders were issued on the same date (6 June 2019) and were issued in terms of section 69(1) of the BCEA. These individual compliance orders for each such outlet / store, will be referred to jointly as 'the compliance orders'.

[7] In the compliance orders, it was recorded by the DOL that GFT had failed to comply with various provisions of Sectoral Determination 9 for the Wholesale and Retail Sector (the Sectoral Determination).[3] These alleged contraventions included the failure to pay employees the prescribed minimum wages, the failure to provide employees with written particulars of employment and pay slips, the failure to fully pay employees for overtime worked, and a failure to keep proper records of time worked and remuneration paid to employees. GFT was given 14 days to remedy these alleged contraventions. It was also demanded in the compliance orders that GFT had to pay the employees for overtime worked for the period from 1 January 2019 to 30 May 2019 but which was not paid for, in the individual sums of R1491187.50, R1298375.10, R814 918.50, R1 167 358.50, R3 722 726.70, R595 207.80, and R2 815 173.90 respectively, giving a total of in excess of R10 million.

[8] GFT complained that all the inspections giving rise to the compliance orders were orchestrated beforehand, carried out simultaneously on the same day as part of some stratagem against GFT, and was motivated

by improper motives on the part of the DOL against GFT. The DOL disputed this, contending that it was only carrying out its duties

under the BCEA, following an anonymous third party tip-off about material breaches by GFT of the Sectoral Determination, which it had a Constitutional and Statutory mandate to investigate and correct.

[9] Following receipt of the compliance orders, and in a letter dated 20 June 2019 by GFT to the DOL, it was indicated that GFT had a meeting with two senior DOL officials on 20 June 2019, in which meeting

documents were provided to the officials, however such officials were still not entirely satisfied, and required further documents. It was explained that due to employee and payroll management system changes, it was impossible to provide all requested documents at this stage, especially considering it would involve, at the instance of the DOL, in excess of 1 000 employees. The DOL was asked for three weeks' extension to comply. The DOL granted the request for extension on 2 July 2019, and the deadline for compliance was extended to 16 July 2019.

[1O] It appears there was a further meeting between the applicants and officials from the DOL on 16 July 2019. Following this meeting, and on 19 July 2019, a letter was sent by GFT to the DOL, in which it was recorded that it was explained to DOL inspectors that all the information needed by them could only be provided following the system change. It was also stated that all employees signed new contracts of employment which gave effect to all the changes prescribed by the National Minimum Wage Act[4] and effect had been given to these changes. It was stated that all pay slips would be available by the end of July 2019. The letter

stated that the DOL had been provided with proof of contribution and payment of employees' tax, UIF and Workmen's compensation, copies of all contracts of employment which included both the former and new contracts, as well as documents relating to consent by employees to a compressed working week. The letter expressed surprise that the DOL could allege there was non­ compliance on these issues.

[11] The letter of 19 July 2019 by GFT to the DOL also contained a number of further pertinent statements. It was suggested that considering more than 1 000 employees were involved in the inspection, with all the logistical difficulties associated with it, a date should be arranged where the DOL can attend at the GFT administrative offices, where all the records are kept, and then, following inspection of these records by the DOL, GFT could immediately provide the DOL with whatever copies they wanted. It was pointed out that GFT disputed that the employees had in fact worked the hours of overtime indicated and / or that they were not remunerated for overtime that was worked, as suggested by the DOL. It was also pointed that the employees

received additional paid days off work in lieu of overtime, and some employees earned in excess of the BCEA earning threshold which meant they do not qualify for overtime payment. A further extension of the deadline for compliance with the compliance orders was requested.

[12] The letter of 19 July 2019 by GFT was however preceded by what was called a 'confirmatory notice' issued by the DOL on 17 July 2019, the day following the expiry of the extended deadline. It was indicated in this notice that the matter would be referred to the CCMA without further notice, as GFT had still not complied with the compliance orders. So needless to say, no further extensions were granted, and the DOL did not even respond to the letter of 19 July 2019.

[13] GFT made one last attempt to try and resolve this matter without the need for litigation. In a letter dated 5 November 2019, the attorneys for GFT wrote to the DOL, summarizing all the background events between GFT and the DOL, following the issuing of the compliance orders, as set out above. The letter referred to the meetings that were held with DOL officials in June and July 2019, and stated that all the information and documents requested by the DOL had now been provided. It was again stated that GFT disputed that the sums claimed were owing to the employees in alleged arrear overtime payments, and

that proof had been provided to the DOL that this was not the case. Yet again, this letter solicited no response from the DOL.

[14] As it promised it would, the DOL then went over to the next step, and proceeded to make application in terms of Section 73 of the BCEA to make the compliance orders concerned, arbitration awards. This was done firstly by the service of a BCEA Form 15 on GFT, and the filing thereof with the CCMA.[5] The service and filing of this Form was then followed by a further application, containing more particularity, served and filed on 22 November 2019. It was common cause that Rule 31B of the Rules for the Conduct of Proceedings in the Commission for Conciliation, Mediation and Arbitration (CCMA Rules),[6] regulated such application under section 73 of the 8CEA. The actual contents of this application by the DOL will be dealt with later in this judgment.

[15] In response to this application by the DOL, and on 29 December 2019, GFT then proceeded to file a notice of objection in terms of Rule 318(4) and (5) of the CCMA Rules, together with an application for condonation for the late filing of such notice of objection. The objection was supported by an affidavit and supporting documents attached thereto. The contents of this objection by GFT will also be dealt with later in this judgment.

[16] GFT never referred a dispute as contemplated by section 69(5) of the BCEA, to the CCMA,[7] to challenge the compliance orders. There was also no replying affidavit filed by the DOL, to GFT's objection under Rule 318(4) and (5) of the CCMA Rules.

[17] All the matters came before the first respondent as commissioner, on the papers, on a single occasion. What was before the first respondent in each individual application, were applications submitted by the DOL as well as the objections submitted by GFT, which were virtually identical in each matter. No actual hearing was convened before the first respondent, and she decided to determine the applications on the papers. The first respondent then issued identical individual arbitration awards for each individual matter, on 13 February 2020, in which the first respondent granted the applications by GFT for condonation of the late filing of the objection. In then dealing with the substance of the applications, the first respondent commenced by quoting the provisions of section 73(2) of the 8CEA, and then followed such quotation by concluding as follows:

'Having considered the above mentioned legal principles the question is whether the respondent complied fully with the compliance order. Although the respondent contends that it has complied with the order, the Respondent did not submit any proof of compliance with the order. In the premises, it is my considered view that that the CCMA is empowered to make the compliance order an arbitration award.'

The above was the sum total of the reasoning of the first respondent, who then proceeded to make a determination that GFT was ordered to comply with the compliance orders, and pay the amounts reflected therein.

[18] According to GFT, the first respondent should not have issued the arbitration awards against it, without it first being afforded a proper opportunity to be heard, and this, according to GFT, necessitated an oral hearing to be convened by the first respondent, where both parties could appear and ventilate their respective cases as to whether there was in fact compliance with the compliance orders. It is this challenge by GFT that will now be dealt with in this judgment, which challenge was brought on the basis that the aforesaid failure constituted misconduct on the part of the first respondent in the conducting of the proceedings.

Test for review

[19] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[8] Navsa AJ held that in light of the Constitutional requirement (in section 33 (1) of the Constitution) everyone has the right to

administrative action that is lawful, reasonable and procedurally fair, said that: '... the reasonableness standard should now suffuse s 145 of the LRA .. .', and concluded that the threshold test for the reasonableness of an award was: '... Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...'.

[20] What is however clear from the judgment in Sidumo supra is that it does not contemplate that the review grounds as specifically listed in Section 145(2)(a) of the LRA are somehow obliterated or negated.[9] A review application can still succeed without a review applicant having to show that the outcome arrived at by the arbitrator is unreasonable, where the review grounds are founded on the text of Section 145(2)(a) itself.[10] For example, if an arbitrator commits misconduct in the course of conducting the arbitration, it does not matter whether the outcome

arrived at is reasonable, as the misconduct itself vitiates the proceedings, resulting in the award being set aside. Another example

would be where the arbitrator had no power or jurisdiction to conduct the arbitration, because, once again, this situation in itself

vitiates the proceedings and causes any award made pursuant thereto to be set aside on this basis alone, irrespective of whether the outcome may be reasonable. ln Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others[11] the Court considered the review test postulated in Sidumo and held:

'... Nothing said in Sidumo means that the grounds of review in s 145 of the Act are obliterated. The Constitutional Court said that they are suffused by reasonableness. Nothing said in Sidumo means that the CCMA's arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in s 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. Also if the CCMA made a decision that exceeds its powers in the sense that it is ultra vires its powers, the reasonableness or otherwise of its decision cannot arise ... '

Similarly, and in National Commissioner of the SA Police Service v Myers and Others[12], the Court said the following

'... It should be noted, however, that the standard of review as formulated by the Constitutional Court in Sidumo does not replace the grounds of review contained in s 145(2) of the LRA. The grounds of review referred to ins 145(2) still remain relevant ... '

[21] The nature of the determination where it comes to the review grounds as articulated in the text of Section 145(2), was summarized in Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others[13] as follows:

'... What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity ... '

[22] The following dictum in Naraindath v Commission for Conciliation, Mediation and Arbitration and Others[14] is also relevant, where the Court said:

' ... A failure to conduct arbitration proceedings in a fair manner, where that has the effect that one of the parties does not receive a fair hearing of their case, will almost inevitably mean either that the commissioner has committed misconduct in relation to his or her duties as an arbitrator or that the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.'

[23] Against the above principles and test, the conduct of the first respondent, as complained of by GFT, must be considered, and will now be dealt with below.

Legal Principles

[24] The proper point of departure in deciding this case involves the consideration of some historical background. Prior to the amendment of the BCEA with effect from 1 September 2014,[15] the situation was that where a labour inspector had issued a compliance order against an employer, the entitlement of an employer to challenge the same was regulated by the now repealed section 71 of the BCEA, which provided for the employer to file a written objection to the compliance order with the Director-General of the Department of Labour within a prescribed period. The Director-General would then consider the merits of the objection and would be entitled to confirm, modify or retract the compliance order. If the employer was dissatisfied with the decision of the Director-General, the employer was entitled to appeal to the Labour Court in terms of section 72 of the BCEA against the decision of the Director-General, also within a prescribed time limit.[16] The Labour Court had wide powers on appeal, and could uphold, set aside or vary the compliance order.[17]

[25] Next, and after 1 September 2014 and until the most recent amendments of the BCEA effective 1 January 2019.[18] where the DOL was faced with an errant employer that simply did not comply with a compliance order or whose challenge thereof was not successful with the employer however still not complying, the DOL would then approach the Labour Court to enforce the compliance order, in terms of section 73 of the BCEA as it then read. This approach was done in the form of an application brought to the Labour Court in terms of Rule 7 of the Labour Court Rules; which application could be opposed by the employer in terms of that Rule.[19] The Labour Court then determined these applications in the Motion Court.

[26] Any Judge sitting in the unopposed Motion Court in this Court in the past would be familiar with the flood of applications brought by the DOL to enforce compliance orders against, and impose files on, simply errant employers, often for small amounts. This was simply not an appropriate utilization of this Court's stretched resources, and took up an inordinate amount of the Court Roll. This was the kind of situation that the CCMA would be far better equipped and resourced to deal with. As a result, and as from 1 January 2019, section 73 of the BCEA was amended, by effectively substituting the CCMA for the Labour

Court where it came to the enforcement of compliance orders.[20]

[27] The 1 January 2019 amendments of the BCEA also brought in a further innovation where it comes to compliance orders. In terms of an amended section 69(5), the employer is given the right to itself refer a dispute concerning a compliance order to the to the CCMA.[21] In terms of section 69(6): 'A dispute referred to the CCMA by the employer in terms of subsection (5) must be dealt with in terms of section 73'.

[28] I must confess that I find the referred correlation between a dispute pursued by an employer under section 69(5), and the provisions of section 73, difficult to understand. First, Section 73(1) is the section that specifically provides that the Director-General may apply to the CCMA for a compliance order to be made an arbitration award if the employer has not complied with the order. This cannot be compatible with section 69(5), because in terms of that section it is a proactive challenge by the employer to the compliance order, and not a case of enforcement by the DOL. This only leaves section 73(2) to consider, which provides that the CCMA may issue an arbitration award in terms of section 73(1) requiring the employer to comply with the compliance order, only if it is satisfied that (a) the compliance order was served on the employer and (b) the employer has not referred a dispute in terms of section 69 (5). Once again, how, the case of a referral under section 69(5), can a dispute be dealt with in terms of section 73(2), if the application of that section is actually ousted by the existence of a referral by the employer under section 69(5)? In short, and in my view, it is impossible to determine a dispute referred by an employer to the CCMA in terms of section 69(5) by utilizing and applying the provisions of section 73 of the BCEA. One can only surmise that what is meant by section 69(6) is that the CCMA would have jurisdiction to finally determine the matter by way of an arbitration award, and that in the event of the dispute referred to the CCMA in terms of section 69(5) being determined against the employer, the CCMA may then make the compliance order an arbitration award under section 73. That is the only interpretation of section 69(6) that would make sense.

[29] The CCMA Rules were also amended to give effect to the duties bestowed on the CCMA in terms of section 73 of the 8CEA.[22] This led to the introduction of Rule 318. In terms of Rule 318(1)(b), the Rule applies to an application for a compliance order to be made an arbitration award in terms of Section 73(1) of the 8CEA. In terms of Rule 318(2), the process prescribed for such an application is an application in the prescribed form, which app cation must have a number of prescribed documents attached to it,[23] which includes the compliance order itself and proof of service thereof on the employer. The application must be supported by affidavit,[24] and served on all parties (including the employer).[25] Of some importance to the matter in casu, the employer is entitled to oppose this application, by filing a written objection in terms of Rule

318(4) and (5), which objection must be supported by an affidavit properly setting out all the grounds for objecting, and which must be filed within five days. There is also the opportunity provided for a replying affidavit to this written objection by the employer, which reply must be filed in three days.[26] The application must then be determined as follows, as prescribed by Rules 318(8) and (9):

'(8) The Commission must, once a reply is delivered or the time limit for delivering a reply has lapsed, whichever occurs first, appoint a commissioner to determine the application by considering the documents filed in terms of this Rule.

(9) Despite sub-rule 7, the commissioner may, if he/she considers it appropriate request allocation of a hearing date, in which event:

(a) the Commission must notify the parties of the date, time and place of the hearing of the application;

(b) the Applications may be heard on a motion roll.'[27]

[30] It is in my view clear from a proper consideration of section 73 of the BCEA as read with Rule 31B of the CCMA Rules, that what is intended is a simple and expeditious process to make a compliance order an arbitration award, for the purposes of enforcement, in all instances of simply errant employers that do not comply with the provisions of the BCEA and its associated determinations, without any cause of reason for doing so. This constitutes the bulk of the cases where the enforcement of compliance orders is needed. Section 73 itself only requires two pre-requisites to exist to enable a CCMA commissioner to be able to exercise his or her discretion to make the compliance order an arbitration award, which is proof of service of the compliance order on the employer and the absence of a dispute under section 69(5) of the BCEA having been pursued by the employer.

Provided the procedural pre-requisites under Rule 318(2) are met, a CCMA commissioner would be entitled to simply determine the matter on the application papers, and without a hearing, once the time limits for filing pleadings have expired. But where an employer has decided to oppose the application using its entitlement under Rule 318(4) and (5), the situation is quite different, and will be further addressed below.

[31] As opposed to the above process under section 73 of the BCEA (as read with Rule 31B of the CCMA Rules), where an employer seeks to raise a dispute about a compliance order in terms of section 69(5) of the BCEA, that employer must refer the dispute to the CCMA by way of the service and filing of the ordinary Form 7.11 referral form used to refer a variety of disputes to the CCMA, as contemplated by Rule 10(1) of the CCMA Rules. The Form 7.11 has been amended to contain a specific tick block for a dispute under section 69(5) of the BCEA. Such a dispute must then be first conciliated by the CCMA, and if conciliation fails to resolve the dispute, it must be finally determined by way of arbitration.[28] At arbitration, the CCMA would then have the power to determine the dispute on a basis similar to how the Labour Court would have been entitled to determine appeals under the repealed section 72 of the BCEA, namely to uphold the compliance order and then make it an arbitration award under section 73 of the BCEA, or set it aside, or vary / amend it.

[32] Therefore, and in my view, where there is a proper compliance order issued by an inspector of the D0L under section 69(1) of the BCEA, and this compliance order is sought to be disputed by an employer, the employer has two options available to it to do so. Each of these options would have its own, and separate, process. There is no obligation on the employer to follow the one process, or the other, and it remains the choice of the employer which process to follow. It must however be said that ultimately, both processes would end up with the same result.

[33] Firstly, the employer can proactively and immediately, and before the expiry of the time limit given by the DOL in the compliance order to comply with the compliance order, refer a dispute to the CCMA in terms of section 69(5) of the BCEA, which dispute is then determined by way conciliation, and failing that by way of arbitration, in the ordinary course. That gives the parties the benefit of the option of conciliation by the CCMA and the possible facilitated settlement of the matter.[29] But where conciliation fails, what follows is trial (arbitration) proceedings with viva voce evidence and the proper discovery of documents, and all the benefits associated with such kind of proceedings, especially where there may be disputed facts.[30]

[34] Secondly, and if the employer has chosen not to proactively pursue a dispute referra1 under section 69(5) of the BCEA, that employer would still be entitled to oppose enforcement proceeding brought by the D0L under section 73 of the BCEA. That would however still entail submitting a proper answering affidavit setting out all the grounds for its defence to the compliance order being made an arbitration award. These proceedings are clearly motion proceedings, in which the affidavits and supporting documents attached to affidavits would constitute the evidence upon which the matter is ultimately to be determined. And just like any other motion proceedings, factual disputes must be resolved in line with the principles as set out in Plascon Evans Paints v Van Riebeeck Paints[31].

[35] In the course of these motion proceedings, Rule 31B(9) clearly contemplates an assessment by the commissioner to whom the application is allocated for determination, as to the appropriate manner in which to determine the application. This would include directing that an oral hearing be convened where the application can then be argued by the parties.

[36] In my view, and when confronted with an opposed application under Rule 31B, it is incumbent upon an allocated commissioner to conduct a proper assessment of the affidavits and documents filed, especially where it is clear that there is a factual dispute. In the case of material factual disputes, especially where these disputes concern the very issue as to whether there was actual compliance by the employer with the compliance order, the appropriate course of action would be the convening of a hearing where these disputes of fact can be fully ventilated with the benefit of proper argument being presented by the parties. In my view, it would not be appropriate for the commissioner to determine the application only on the papers in such a case, without convening a hearing. This is especiaJly so where it may be best suited to resolve the factual dispute by referring the matter to oral evidence, which is of course one of the options that would be available to the commissioner when hearing argument.[32]

[37] The point may be illustrated by reference to the judgment in Kungwini Residential Estate and Adventure Sport Centre Ltd v Mhlongo NO and Others[33]. In that judgment, the Court dealt with the provisions of Rule 31 of the CCMA Rules, as it existed at the time, which is the Rule that dealt with applications before the CCMA. In that case, Rule 31(9) of the CCMA Rules provided that the CCMA must allocate a date for the hearing of an application, however, a proviso was built in by virtue of Rule 31(10), which provided that a commissioner allocated to deal with an application may determine the application in any manner the commissioner deems fit.[34] The Court concluded that despite the provisions of Rule 31(10), it was still incumbent upon the commissioner dealing with a rescission application in that case, to have convened a hearing on notice to the parties, with the Court saying that:[35]

'... I have already referred to rule 31(9) which requires the commission to allocate a date for the hearing of an application and to notify the parties of that date. It was common cause that that was not done in the case of the rescission application in this matter. Instead the commissioner, in the face of an objection by the applicant, and apparently at the instance of Hawyes, took it upon himself to use the occasion for which the conciliation proceedings had been set down (incorrectly, in the light of the rescission application), in order to hear and determine the rescission application. In my view, the fact that the commissioner proceeded to hear the rescission application, in the face of the objection by the appellant and without allowing his legal representative time to prepare, was an irregularity which, in itself, warranted the review and setting aside of the rescission ruling '

[38] The judgment in Kungwini supra has been applied by this Court in a number of different, but related, instances. A few examples bear specific mention. In Mokotedi v Eskom Holdings SOC Limited and Others[36] the Court said:

'The LAC in Kungwini Residential Estate and Adventure Sport Centre Limited v Mhlongo NO and Others held that where the commissioner hears and determines an application for condonation without notice to one of the parties involved in such dispute, it will amount to ignorance of the audi alteram partem rule, and if there is prejudice, meaning there must have been something that the party who was absent wanted to raise or might have brought to the attention of the commissioner '

[39] Next, and in SAMWU obo Members v Piotrans (Pty) and Others[37], the main complaint by the applicants in that case was that they were not afforded a hearing of their condonation application, because in that case the condonation application was considered on papers without being scheduling for an oral hearing.[38] The Court gave a number of reason why it considered this state of affairs resulted in the failure of audi alteram partem in that case, being:[39]

'In my view had the third respondent set the matter down for a hearing the possibility exist that the applicants may have come forward and indicated that they were preparing the replying affidavit. This is so when regard is had to the fact that the applicants submitted the replying affidavit three days late. In this circumstances the Commissioner may possibility have directed the applicants to file condonation for the late filing of their replying affidavit. ...

The same applies once the matter was placed before the Commissioner for consideration. In the circumstances of this matter the Commissioner faced with the absence of a replying affidavit and a dispute of facts on the papers before him ought to have directed that the matter be set down for oral submission.

It is apparent from the papers that the parties had representatives who assisted them in the condonation application. It therefore means that the other approach that the Commissioner could have adopted was to direct that the parties should make written submissions which in my view would have satisfied the audi rule.

[40] In Satinsky 128 (Pty) Ltd tla Just Group Africa v Dispute Resolution Centre and Others[40] the Court dealt with an opposed rescission application that was determined on the papers without a hearing being convened, and had

the following to say:

'A further concern I have in this matter is the absence of a rescission hearing before the second respondent made his ruling. Whilst I accept that the DRC Rules dictate that the first respondent can determine applications in the manner its deems appropriate, and it thus can be argued a rescission hearing is not required, my concern remains that in certain instances, it is simply not appropriate to just deal with rescission applications on the documents filed. There seems to be a blanket approach by the CCMA and the bargaining councils to determine all rescission applications just on the documents filed, which approach in my view cannot be correct. In certain instances, fairness and the requirements of the principle of audi alteram partem dictates that a hearing to determine the issue of rescission must be convened, no matter what the Rules of the CCMA or bargaining council may provide as to conducting proceedings in a manner deemed appropriate '

The Court in Satinsky supra then dealt specifically with the issue when the convening of a hearing may be considered to be appropriate and necessary, and held:[41]

'Of course, there can be no hard and fast rules as to when such a hearing should be convened. This must be determined on a case by case basis, by the arbitrator to whom the determination of the rescission application is allocated. In my view, the following can however serve as guidelines when the decision should rather be made to convene a hearing to determine the rescission application:

47.1. The determination of a rescission application only on the papers should principally be reserved for instances where the rescission application is unopposed;

47.2. Where the rescission application is opposed, a rescission hearing should be convened. This situation will leave parties with the view that justice is not only done, but is actually seen to be done in their presence. There may be instances however where even an opposed rescission would not necessitate a hearing. An example would be where it is clear from the documents filed that the default arbitration award was indeed erroneously made, as in such a case, it is not even necessary to determine the issue of willful default and prospects of success. Another example would be where the explanation for the default is not contested, and only the issue of prospects of success is contested, because of the manner in which the issue of prospects of success must be determined…’

[41] From the above exposition of cases, it appears that the prevailing view in opposed application proceedings in the CCMA under Rule 31, is that the application of the audi principle and the convening of a hearing for the parties to make oral submissions is the preferable course of action, even where the option of deciding the matter on the papers is provided for and available to the commissioner. There is in my view no reason why this same position should not hold true where it comes to proceedings under Rule 31B, which is after all application proceedings, has similar procedural provisions to Rule 31, and also affords the commission the option to convene a hearing or deal with the application only on papers. The problem of course is that if there is a failure of the audi principle, the entire proceedings are vitiated and must be conducted de novo, irrespective of whether the application may have substance on the merits. As held in Sasol lnfrachem v Sefafe and Others:[42]

'... The hearing must not only be fair, but must also be seen to be fair. Anything less than that would not suffice. The remedy employed must cure the irregularity; it must restore the right. Generally, nothing less than a complete rehearing would be required.'

[42] It would also be appropriate to compare the provisions of section 73(2) to the provisions of section 158(1)(c) of the LRA. Section 158(1)(c) reads: 'The Labour Court may - ... make any arbitration award or any settlement agreement an order of the Court. Similarly, section 73(2) of the BCEA reads: 'The CCMA may issue an arbitration award in terms of subsection (1) requiring the employer to comply with the compliance order'. What is immediately apparent from this comparison is the use of the word 'may', which in my view clearly contemplates the exercise of a discretion, which, like any other discretion, must be judicially exercised. It has been consistently held in this Court that section 158(1)(c) of the LRA contemplates a discretion which must be judicially exercised,[43] and I can see no reason why this would not equally apply to the power given to a commissioner under section 73(2) of the BCEA. Therefore, the commissioner, even if all the requirements of section 73(2) are met, must still exercise a discretion in order to decide whether to make the compliance order an arbitration award, and is not compelled to do so, as there may be facts or circumstances that nonetheless mitigate against doing so.[44]

[43] The judgment in SA Post Office Ltd v Communication Workers Union on behalf of Permanent Part-time Employees[45] clearly illustrates the point. In dealing with the Labour Court exercising its powers under section 158(1)(c) of the LRA, the Court recognized that the Labour Court would be entitled to make an arbitration award or settlement agreement an order of Court where the agreement or award is clear, the defaulting party is aware of it, and the defaulting party has not complied with it.[46] However, and even where the Labour Court would be entitled to grant the order, the Court nonetheless held:[47]

'Once the Labour Court is satisfied with all of the above then it must, nevertheless, exercise its discretion whether to grant or refuse the order. In exercising the discretion, the court must take relevant facts and circumstances into account, such as are necessary to satisfy the demands of the law and fairness. Necessarily, each case must be decided on its own facts and circumstances. There is, otherwise, no closed list of factors to be taken into account. ... Finally and most crucially it must be remembered that the purpose of making an agreement or award an order of the Labour Court is to compel its enforcement, or enable its execution and not for some other purpose.'

[44] Therefore, and applying the lessons learnt where it comes to the exercising of a discretion in the case of the Labour Court making an arbitration award or settlement agreement an order of Court in terms of section 158(1)(c) of the LRA, for the purposes of the enforcement thereof, it must follow that any commissioner fulfilling the same function where it comes to making a compliance order an arbitration award in terms of section 73 of the BCEA, must exercise his or her discretion in a similar fashion. This means that when exercising the discretion, the commissioner must account for all the relevant facts,

in a manner that can be considered just and fair. I would venture to say that to exercise such a discretion in the case of opposed

proceedings where there is a material factual dispute concerning whether there is compliance, without convening a hearing, would not be just and fair, and may well not account for the relevant facts.

[45] In sum, the fact remains that enforcement proceedings before the CCMA are application (motion) proceedings in the course of which the audi principle must be observed and be given effect to as far as possible. This is especially so, considering that when deciding to make a compliance order an arbitration award, the commissioner exercises a discretion, which must be judicially exercised. Even though Rule 318(8) makes it possible to determine a section 73 enforcement application on paper without a hearing, it is a power that must be carefully exercised by the commissioner tasked to determine the application when faced with opposed proceedings. The consequence if the commissioner decides the application without a hearing, and this is seen as a violation of the audi principle, is that it would constitute misconduct by the commissioner in the conducting of the proceedings, and would vitiate the entire proceedings, rendering it reviewable. The risk that this would be the case is exponentially increased where the proceedings are opposed and where a material dispute of fact is apparent, especially with regards to the issue as to whether there was compliance or not with the compliance order. Common sense dictates that the simple act of convening a hearing in such cases would be the appropriate course of action. In the end, the right to fair hearing, and the fact that justice must not only be done, but be seen to be done, must always be the yardstick.

[46] I understand and accept the need for expedition and minimal effort in enforcement proceedings under section 73 of the BCEA, especially

considering the potential (and actual) volume of such proceedings. But expedition and ease of finalization can never trump the right of a party to have a fair hearing, where that party had properly voiced its objections and provided evidence in support of those objections. Audi alteram partem dictates, in my view, that the right to fair hearing must always prevail or at least given preference, and a commissioner should rather err on the side of caution and convene a hearing where this may be at stake.[48] Of course, this consideration will rarely arise if there is no opposition, which would be the bulk of these kind of cases, in which

event the application could be readily and legitimately be determined by a commissioner in terms of Rule 318(8), without convening a hearing in terms of Rule 318(9).

Analysis

[47] Applying the above principles to the facts in casu, what we have is the enforcement and corresponding challenge, of compliance orders, under section 73 of the 8CEA, as read with Rule 318 of the CCMA Rules. It must therefore be determined if the arbitration awards of the first respondent pass muster by considering the dispute resolution process applicable to having such awards issued, in order to decide whether the conduct of the first respondent in applying that process violated the audi principle and this constituted misconduct.

[48] In the applications by the DOL on 22 November 2019, it was stated that the DOL acted upon an anonymous third party complaint that GFT was committing gross violations of employment law, at several stores/ outlets in the Gauteng, Kwa-zulu Natal, and North West Provinces, which was complaint was received on 5 May 2019. This complaint was then investigated by what was called a 'blitz inspection' on 6 June 2019, and it was discovered that GFT did not comply with several of the provisions of the Sectoral Determination, as listed earlier in this judgment, and owed substantial amounts in overtime, also as set out above. Reference was made to the compliance orders and these orders were attached to the applications. The DOL also made reference the letter by GFT to the DOL of 20 June 2019, and the fact that an extension until 16 July 2019 to comply was granted as a result. The

applications extensively dealt with the issue of the service of BCEA Form 15 on GFT. It was then simply stated in conclusion that GFT had still not complied with the compliance orders. As to the BCEA Form 15 submitted on 8 November 2019 by the DOL, it simply records, in handwritten manuscript, that compliance orders were issued on 6 June 2022 and that to date GFT had failed to comply with those orders, in that GFT did not pay the prescribed minimum wage and amounts claimed, and still failed to comply with the prescripts of the Sectoral Determination.

[49] GFT, as said, properly objected to the applications, as contemplated by Rule 318(4) and (5). Importantly, the objections filed by GFT intimated that the case was far more complex than it seemed at face value, and there was some history to it which would require proper ventilation at arbitration proceedings. It was also further intimated that GFT would illustrate its prospects of success at arbitration. It was clear that GFT contemplated that there would be an oral hearing

in this case.

[50] According to GFT, and following the receipt of the compliance orders, it diligently attended to all the issues raised in those orders over the next two weeks. It was stated that discrepancies that were found to exist were rectified, and all documents requested by the DOL was ultimately forwarded to it. Specific reference was made to the letter of 19 July 2019 to the DOL, which made it clear that for all intents and purposes, there was material compliance with the compliance

orders, save for the demand for the payment of overtime, which was disputed as being due in the first place. It is specifically said that 'Consequently, it is respectfully submitted that the employer in this instance complied fully with all the items contained in the

compliance order dated 6 June 2019'. Reference was also made to the letter of 5 November 2019 as to further confirming compliance with the compliance orders. It was stated on several occasions throughout the objection that there had been full compliance by GFT, by the time the applications were brought by the DOL.

[51] Considering all the issues and facts raised by GFT in the written objections, I believe it was necessary for the DOL to engage further in the proceedings and file a replying affidavit to properly deal with the same. However, the DOL never filed such a replying affidavit, which effectively left, at the very least, the content of the objecting affidavits by GFT as uncontested. Applying the principles in Plascon Evans, those answering affidavits then constituted the evidence before the first respondent upon which her discretion in terms of section 73 of the BCEA had to be based. In simple terms, again at the very least, what was before the first respondent was prima facie evidence by GFT of compliance. In my view, this necessitated the first respondent, upon considering the papers before her, to have convened an oral hearing where the parties could argue their respective cases, which is the best and proper way to deal with this material factual dispute that goes to the heart of the case. Justice and fairness dictated this course of action.

[52] In addition, and as part of objecting affidavit, GFT provided the correspondence with the DOL as discussed above, in which it was made clear that all the necessary records kept by GFT that wou1d prove compliance was extensive, comprising thousands of pages, and that GFT always tendered to make all this documentary evidence available if required. The availability of such evidence, as well as the tender by GFT to provide that eV1dence, was never contradicted by the DOL in a replying affidavit. It was dearly appropriate that in such circumstances, GFT be afforded the opportunity to produce this evidence at a hearing of the matter, so the issue of compliance could be properly and fairly ventilated, and it then only be established if this was in fact the case. After all, section 76 of the BCEA placed the duty on GFT to provide such records, and it must be given the opportunity to do so, before the first respondent proceeded to exercise her discretion under section 73 of the BCEA. This evidence would clearly form an important part of any determination as to the issue of compliance, and whether it would be just and fair for the first respondent (or any commissioner for that matter) to exercise a discretion in terms of section 73 of the BCEA in favour of making the compliance orders arbitration awards.

[53] The compliance orders involve a significant sum of money with regard to the issue of overtime pay allegedly due (in excess of R10 million). This claim was substantiated by way of simple spreadsheets attached to the applications by the DOL, without any supporting (source) documents in support of those spreadsheets. This is important, because GFT specifically disputed, in the correspondence to the DOL and in the objecting affidavits, that this overtime was due and payable, and provided an explanation why it was not due and payable. The correspondence also recorded that proof had been provided to the DOL that this overtime was not due. In these circumstances, it is in my view simply neither fair nor just that such a liability be determined by the first respondent simply on the basis of unsubstantiated spread sheets attached to the applications by the DOL, in the face of a specific dispute raised by GFT in this regard, without at least affording GFT a hearing. There simply has been no fair hearing on this issue.

[54] As I have quoted above, the first respondent simply, by way of a bald statement in a few lines, concluded that GFT had provided no evidence that it had complied with the compliance orders. How the first respondent can say in her award that there was no evidence presented by GFT as to compliance with the various compliance orders is in my view beyond comprehension. What the first respondent had before her, as far as evidence goes, is a bald statement in the affidavits by the DOL that the compliance orders had not been complied with. In contradiction of this, what the first respondent was then presented

with by GFT, are a number of clear statements supported by documents that this was simply not true. There was specific reference to the correspondence sent to the DOL which explained why there had been compliance. All of this surely also constitutes evidence before the first respondent. The first respondent can only exercise her discretion based on evidence. It follows that she must have considered the application by the DOL as evidence. Yet she does not regard the objecting affidavit by GFT as evidence. It is an untenable proposition, and is tantamount to depriving GFT of a fair hearing. At the very least, the first respondent should have evaluated all the evidence, and then decided what evidence to prefer / accept and provide at least short reasons for such a decision,[49] which the first respondent simply never did. This is clearly reviewable conduct as contemplated by section 145(2)(a)(i) of the

LRA. Apposite to the matter in casu is the following dictum in Mathosi and Others v Kintetsu World Express (Pty) Ltd and Another,[50] where the Court, in declining to exercise its powers under section 158(1)(c) of the LRA, had the following to say, which in my view

illustrates how the first respondent should at the very least have handled the matter:

'In this matter, the contention of the applicants is that there has been non­ compliance, in that, in its view the fact finding and the determination had not occurred. As pointed out earlier the respondent is of the view that it had complied. It therefore means that there is a material dispute of fact and if it is to be resolved on the papers it has to be resolved on a basis of admitted facts and what the respondents contend '

[55] In casu, and no matter how one may cut it, what actually happened is that the first respondent never determined whether GFT had complied with or remedied the alleged transgressions of the Sectoral Determination as described in the compliance orders, based on a proper, rational and reasonable conspectus of all the facts placed before her in all the affidavits. In short, she effectively never decided and determined the facts. I am convinced that she followed an approach of simply deciding whether the qualifying circumstances in section 73(2) existed, and then as a matter of course simply made the compliance orders arbitration awards, considering herself entitled to do so. She thus failed to exercise any discretion. It is also clear that the first respondent should have convened a hearing so the substantial volume of evidence tendered by GFT could be placed before her, and be ventilated by the parties. For the first respondent under all these circumstances to have determined the applications on the papers, without convening an oral hearing, is in my view a failure of audi alteram partem. This constitutes misconduct and must result in the arbitration awards being vitiated as a result, and consequently being reviewed and set aside.

[56] One last issue remains. GFT contends that the manner in which the inspections in this case came about, if considered in conjunction with the conduct of the DOL following on these inspections (which included making media statements), showed malice on the part of the DOL, and that the inspections and compliance orders were thus ma/a fide. According to GFT, and for this reason as well, the arbitration awards fell to be reviewed and set aside. In my view, however, there is no substance in this contention. To seeks to attack the fulfilment of legitimate functions by functionaries such as the inspectorate of the DOL, on the basis of alleged ma/a fides, is a very slippery slope indeed. This in my view brings an undue amount of subjectivity into the equation, based on what the recipients of attention from the DOL believe to be bad faith conduct. I accept that the inspectorate of the DOL fulfil administrative functions that must meet the threshold of fair administrative action, and this includes being impartial. That being said, it is my view that where a functionary legitimately performs a duty prescribed to that functionary by a Statute, it should not be questioned whether it is done in a ma/a fide manner, unless a proper case is made out that the conduct is such that it would interfere with a party's right to fair administrative action. In casu, there was nothing to suggest that the DOL overstepped the mark by itself acting in contravention of the BCEA in carrying out the inspections, and issuing the compliance orders. On GFT's own version, some of the complaints were justified and had to be, and were, remedied. At worst, it can possibly be said that the DOL was over-zealous and bombastic, but this is not the kind of conduct that can be seen to be in contravention of the BCEA, or an infringement of the right fair administrative action.[51] The DOL should be allowed to do its job without undue interference, or criticism, and if it makes mistakes in issuing compliance orders, that should be resolved in the CCMA on the merits of the issue.

[57] In the end, I am satisfied that it was incumbent upon the first respondent in this case to have convened an oral hearing in terms of Rule 318(9), where the parties could argue their respective cases, and could deal with the factual disputes and how these disputes should be resolved. This would have opened the way for the first respondent to have rationally, reasonably and fairly determined the evidence before her, in a manner where justice could also be seen to be done. The failure by the first respondent to have convened such a hearing, in my view, is tantamount to a failure of audi alteram partem, and constitutes misconduct by the first respondent as arbitrator as contemplated by Section 145(2)(a)(i) of the LRA, which vitiates the entire proceedings. The effect of this is that all the arbitration awards issued by the first respondent fall to be set aside.

Conclusion

[58] The final question to determine is what to do next, with the arbitration awards of the first respondent having been reviewed and set aside. In this regard, this Court has broad powers as contemplated by section 145(4) of the LRA. That being said, the simple reality in this case is that the applicants did not receive a fair hearing. It was the conduct of the first respondent that gave rise to such situation. Added to this, I believe that this is case where the evidence must be properly presented to and ventilated before the CCMA, which simply has not been done as yet. The CCMA itself must be given a proper opportunity to discharge its functions under section 73 of the BCEA. As a result, I believe it would be inappropriate and unwarranted to substitute the awards of the first respondent with awards that I would consider to be appropriate, and the matter needs to be conducted again in the CCMA, de novo, before another commissioner.[52] I shall therefore remit this matter to the CCMA for determination de novo before another commissioner, with the proviso that an oral hearing be convened, considering all I have set out above.

[59] The applicants have suggested that I make an order referring this matter to oral evidence. I do not accept that such an order is appropriate. This would usurp the functions of the arbitrator ultimately tasked by the CCMA to deal with the matter at an oral hearing as contemplated by Rule 31B(9), once this matter is referred back to the CCMA. It should be left up to such arbitrator to properly determine the factual disputes between the parties, in line with legal principle, which may include that arbitrator deciding that the best course of action to resolve the factual disputes would be to refer it to oral evidence. However, that is a call the arbitrator must make. I thus decline the applicants' invitation to make such an order, and shall simply refer this matter back to the CCMA for an oral hearing under Rule 31B(9).

Costs

[60] Both parties have asked for costs against the other. But this does not mean that costs would follow the result. It has been said that even if both parties are ad idem that costs follow the result, it is still up to the presiding Judge to decide whether a costs order is appropriate, exercising the wide discretion bestowed on the Judge in terms of section 162(1) of the LRA.[53] I refer to what the Court said with regard to costs in employment disputes in Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[54] which is that when making a costs order in a labour matter, a Judge is required to consider that costs are not ordinarily awarded, the principle of fairness must be considered, and due regard must be had to the conduct of the parties. In casu, I do not believe any of the parties acted unreasonably in bringing this application, or in opposing the same. The matter does concern some novel issues of law, and justified proper ventilation before this Court. In addition, it is the first respondent as arbitrator that failed in this case, and this should not be imputed on any of the parties where n comes to costs orders. I also consider that this matter is far from over, with further proceedings in the CCMA undoubtedly to follow, and in such circumstances, mulching either party with a costs order would simply not be appropriate. I can see no reason why the ordinary principle as set out above that costs do not follow the result should carry the day. Therefore, I am satisfied in this case that no order as to costs is appropriate and fair.

[61] In the circumstances, I according1y grant the following order.

Order

1. The applications under case numbers JR 416 / 20, JR 417 / 20, JR 418 / 20, JR 420 / 20, JR 421 / 20, JR 422 / 20 and JR 423 / 20, are consolidated into one application for the purposes of determination of all these applications by way of this judgment.

2. The applicants' review applications under case numbers JR 416 / 20, JR 417 / 20, JR 418 / 20, JR 420 / 20, JR 421 / 20, JR 422 / 20 and JR 423 120 are granted.

3. The arbitration awards of the first respondent under case numbers GATW 2402 - 20, GATW 2417 - 20, GATW 2415- 20, GATW 2418-20, GATW 2409 - 20, GATW 2423 - 20, and GATW 2420 - 20, all dated 13 February 2020, are reviewed and set aside.

4. The entire dispute is remitted back to the second respondent, as a single consolidated dispute encompassing all these cases, for an oral hearing de novo, on the merits thereof, before an arbitrator other than the first respondent.

5. There is no order as to costs.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicants:

Advocate B M Jackson

Instructed by:

Erlank Attorneys

For the Third Respondent: Advocate N Mathe-Ndlazi

Instructed by:

The State Attorney

[1] Act 75 of 1997 (As amended).

[2] Act 66 of 1995 (As amended).

[3] Sectoral Determinations are issued under section 55(1) of the BCEA and determine basic conditions of employment in a particular sector.

[4] Act 9 of 2018.

[5] The BCEA Form 15 is the prescribed Form under Rule 318(2) in terms of which an application under Rule 31B must be brought.

[6] As published under GNR1448 in GG 25515 dated 10 October 2003, subsequently amended on several occasions, with the most recent

amendment introducing Rule 31B being brought about by GN194 as contained in GG 43038 dated 20 February 2020. This amendment was

effective 1 March 2020.

[7] Section 69(5) reads: 'An employer must comply with the compliance order within the time period stated in the order, unless the employer refers a dispute concerning the compliance order to the CCMA within that period'.

[8] (2007) 28 ILJ 2405 (CC) at para 110. See also Herholdt v Nedbank Ltd and Another (2013) 34 ILJ 2795 (SCA) at para 25; Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others 2014) 35 ILJ 943 (LAC) at para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 - 17.

[9] Section 145(2) reads: 'A defect referred to in subsection (1), means- (a) that the commissioner- (i) committed misconduct in relation to the duties of the commissioner as an arbitrator; (ii) committed a gross irregularity in the conduct of the arbitration proceedings; or (iii) exceeded the commissioner's powers'.

[10] See Premier Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 658 (LC) at para 14.

[11] (2008) 29 ILJ 964 (LAC) at para 101.

[12] (2012) 33 ILJ 1417 (LAC) at para 41.

[13] (2014) 35 ILJ 1528 (LC) at para 18. See also Chabalala v Metal and Engineering Industries Bargaining Council and Others (2014) 35 ILJ 1546 (LC) at para 13.

[14] (2000) 21 ILJ 1151 (LC) at para 27.

[15] Section 12 of the Basic Conditions of Employment Amendment Act 20 of 2013 repealed sections 71 and 72 of the BCEA.

[16] Mondi Packaging (Pty) Ltd v Director-Genera/: Labour and Others (2010) 31 ILJ 2558 (LAC) at paras 5-6.

[17] See Calvinia Lande BK v Department of Labour and Another (2013) 34 ILJ 359 (LC) at para 8.3.

[18] These amendments were brought about by section 15 of the Basic Conditions of Employment Amendment Act 7 of 2018.

[19] Rule 7(4)(a) of the Labour Court Rules provides that: 'A notice of opposition and an answering affidavit may be delivered by any party opposing the application'.

[20] As said in Director-General: Department of Employment and Labour and Another v Green Secure Group (2020) 41 ILJ 189 (LC) at para 3: '... In essence, the process for the enforcement of compliance orders has been shifted from this court to the CCMA .. .'.

[21] Section 69(5) reads: 'An employer must comply with the compliance order within the time period stated in the order, unless the employer refers a dispute concerning the compliance order to the CCMA within that period'.

[22] See fn 6, supra.

[23] These documents are listed in Rule 31B(2)(a) to (f).

[24] Rule 31B(2)(d).

[25] Rule 318(3).

[26] Rule 318(6) and (7).

[27] The reference to subrule (7) is clearly a typographical error, as subrule (7) prescribes a limitation as to what may be dealt with in the replying affidavit.

[28] In terms of section 135(1) of the LRA, when a dispute has been referred to the CCMA, the CCMA must appoint a commissioner to

attempt to resolve it through conciliation. If conciliation fails, and in terms of section 136(1) of the LRA, the CCMA must appoint a commissioner to arbitrate that dispute. The arbitration would then be conducted in terms of section 138 of the LRA, as read with the applicable CCMA Rules.

[29] The CCMA is quite successful in settling all kinds of disputes, settling the majority of disputes referred to it.

[30] Under section 76 of the BCEA, the employer effectively has the onus to prove compliance with the BCEA.

[31] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C. These principles are, in sum, that in the absence of a referral to oral evidence, the facts as stated by the respondent party together with the admitted or facts that are not denied in the applicant party's founding affidavit constitute

the factual basis for making a determination, unless the dispute of fact is not real or genuine or the denials in the respondent's

version are bald or not creditworthy, or the respondent's version raises such obviously fictitious disputes of fact, or is palpably

implausible, or far-fetched or so clearly untenable, that the court is justified in rejecting that version on the basis that it obviously stands to be rejected. See also Jonsson Workwear (Pty) Ltd v Williamson and Another (2014) 35 ILJ 712 (LC) at para 10.

[32] See the summary in Jonsson Workwear (supra) at paras 13 -16, as to when such a course of action would be appropriate, and what the applicable principles to consider are.

[33] (2006) 27 ILJ 953 (LAC).

[34] See para 13 of the judgment.

[35] Id at para 19.

[36] (JR450/16) [2019] ZALCJHB 61 (29 March 2019) at para 25.

[37] (JR1095/15) [2016] ZALCJHB 2 (6 January 2016).

[38] See para 25 of the judgment.

[39] Id at paras 32 - 35.

[40] (JR 1479/2012) (2013] ZALCJHB 38 (26 February 2013) at para 45.

[41] Id at para 47.

[42] (2015) 36 ILJ 655 (LAC) at para 54.

[43] See National Education Health and Allied Workers Union on Behalf of Vermeulen v Director-General: Department of Labour (2005) 26 ILJ 911 (LC) at para 24; Food and Allied Workers Union and Others v Foodtown Incorporated (Pty) Ltd t/a Travenna (1999) 20 ILJ 354 (LC) at para 14; Kgaditse v Pep Stores (Pty) Ltd (1999) 20 ILJ 617 (LC) at para 6; Banking Insurance Finance and Assurance Workers Union v Zurich Insurance Co Ltd (2014) 35 ILJ 2146 (LC) at para 15.

[44] Compare Khumalo and 50 Others v Emfuleni Municipality (J 1242/2020) [2022] ZALCJHB 260 (19 September 2022) at para 8, where the Court held: '... What is significant about the wording of section 158 (1) (c) is that it does not oblige this court to make any settlement agreement an order of court. In other words, even if the agreement satisfies the criteria set out in the subsection, the court retains a discretion to determine whether to make the agreement an order of court. In other words, there may well be facts or circumstances that militate against making a settlement agreement an order of court .. .'.

[45] (2014) 35 ILJ 455 (LAC).

[46] See para 21 of the judgment.

[47] Id at para 22.

[48] In National Director of Public Prosecutions and Another v Mohamed NO and Others 2003 (4) SA 1 (CC) at para 3, it was said that: '... It is well established that, as a matter of statutory construction, the audi rule should be enforced unless it is clear that the Legislature has expressly or by necessary implication enacted that it should not apply or that there are exceptional circumstances which would justify a court not giving effect to it .. .'. Similarly, and in Minister of Defence and Military Veterans v Motau and Others 2014 (5) SA 69 (CC) at para 83 it was held: '... It suffices to note that our law has a long tradition - which was endorsed by this court in Mohamed - of strongly entrenching audi alteram partem ('hear the other side?, which attains particular force when prejudicial allegations are levelled against an individual'. See also ZA One (pty) Ltd t/a Naartjie Clothing v Goldman No and Others (2013) 34 ILJ 2347 (LC) at para 61.

[49] See Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008) 29 ILJ 2189 (LAC) at para 8.

[50] (2008) 29 ILJ 2785 (LC) at para 13.

[51] Compare Comtech Networking Solutions CC v Director-General of Department of Labour and Another (2010) 31 ILJ 600 (LC) at para 25.

[52] See ZA One (supra) at para 81; Premier Foods (supra) at para 45.

[53] See Long v South African Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC) at para 30.

[54] (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of Kwa-Zulu Natal and Others (2018) 39 ILJ 523 (CC) at para 25.