National Education, Health and Allied Workers Union obo Sibanda v Dorman NO and Others (JR 3007/05) [2013] ZALCJHB 228 (25 September 2013)

REPUBLIC OF SOUTH AFRICA

LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case no: JR3007/05

Not Reportable

In the matter between:

NATIONAL EDUCATION, HEALTH AND ALLIED WORKERS

UNION obo SIBANDA .................................................................................................Applicant

and

DORMAN, B N.O. ...........................................................................................First Respondent

COMMISSION FOR CONCILIATION, MEDIATION AND

ARBITRATION ...........................................................................................Second Respondent

VAAL UNIVERSITY OF TECHNOLOGY .......................................................Third Respondent

Heard: 17 July 2013

Delivered: 25 September 2013

Summary: CCMA arbitration proceedings – review of proceedings, decision and award of arbitrator – reasonableness of award – application for postponement – legal principles re-stated – discretion of court – prejudice –

good cause – misconduct – dishonesty

JUDGMENT

MALAN, AJ

Introduction

The matter concerns an opposed application in terms of which the applicant, the National Education, Health and Allied Workers Union (‘NEHAWU’), on behalf of one of its members, Mr Bafana Jakes Sibanda (‘Mr Sibanda’), seeks to have the arbitration award dated 22 September 2005 (‘the award’) issued by the first respondent (‘the Commissioner’)

under the auspices of the second respondent (‘the CCMA’) reviewed and set aside (‘the review application’). The application is brought in terms of s 145 of the Labour Relations (‘the LRA’).1

At the commencement of the hearing of this application, Mr Pienaar, who appeared on behalf of the third respondent, namely the Vaal University of Technology (‘VUT’) applied for a postponement of the review application. The application for a

postponement was opposed by Mr Thaanyane, who appeared on behalf of NEHAWU. After hearing argument by both parties, I refused the application for a postponement. I undertook to provide reasons for such refusal in this judgment. I deal with the aforesaid hereunder.

Pursuant to the above, Mr Pienaar requested the matter to stand down in order to obtain instructions from his instructing attorneys,

namely De Klerk Attorneys, acting on behalf of the VUT. When the matter was called again, Mr Pienaar advised the Court that he had been instructed to request that he be excused from being present when argument on the merits of the application proceeded later that day. Mr Pienaar was excused but advised by the Court that he did so at his own peril, as the application would proceed in his absence. The matter proceeded accordingly.

In the premises, I first deal with the application for a postponement and my reasons for refusing such application before turning to the merits of the review application.

Third respondent’s application for postponement

At the commencement of the hearing, Mr Pienaar, on behalf of the third respondent applied from the bar for a postponement of the review application. In support of this application, he relied on an affidavit (commissioned on 16 July 2013) deposed to by Mr Oberholzer from De Klerk Attorneys, VUT’s attorneys of record. No substantive application with a notice of motion was presented to Court.

The affidavit by Mr Oberholzer starts off by stating that:

’This affidavit deals with the circumstances and reasons why the heads of argument on behalf of the third respondent were not filed timeously before the hearing of the Applicant’s application on 17 July 2013’.2

In the affidavit, Mr Oberholzer essentially states that although the notice of set down (dated 5 June 2013) by the Registrar of this Court was received by his office on 7 June 2013, due to a bona fide administrative error, the administrative assistant erroneously filed the notice of set down in another file in his office. As a result, the notice of set down only came to his attention on Friday, 12 July 2013. [He does not state the time when this came to his attention.] Mr Oberholzer states further that despite several attempts to contact the VUT’s legal advisor, his attempts were unsuccessful. He states that on Monday, 15 July 2013, he was contacted by NEHAWU’s attorneys of record enquiring whether he intended to file heads of argument at which time he explained his situation to NEHAWU’s attorneys. On Tuesday, 16 July 2013, he informed NEHAWU’s attorneys that he had still not been able to get hold of the VUT’s legal advisor and enquired whether NEHAWU would be amenable to agreeing to a postponement. NEHAWU’s attorney undertook to obtain instructions and revert. On this basis, Mr Oberholzer contends it is a bona fide administrative error and that the VUT would be extremely prejudiced in the event that the review application was to be heard on the day it was set down. Lastly, Mr Oberholzer contends that the VUT has a bona fide defence against NEHAWU’s claim and that there are reasonable prospects of success. In support of this he relies on the judgment by Pillemer AJ when on a previous occasion, a default judgment granted in the absence of the VUT, was rescinded pursuant to an application by the VUT.

It is against this factual background that the application for a postponement was considered and refused.

The legal principles that follow are applicable to applications for a postponement.

A party seeking an indulgence must show good cause for the interference with his or her opponent's procedural right to proceed

and with the general interest of justice in having the matter finalised.3

Furthermore, it is trite that a postponement is not an issue of right, but an indulgence sought by a party, and as such, must be properly substantiated and motivated. Naturally, the Court is entrusted with a discretion as to whether to grant or refuse the indulgence.4 The court is then required to exercise a judicial discretion in determining such indulgence sought.5

Mokgoro J in National Police Service Union v Minister of Safety and Security and Others6 had the following to say:

'It is necessary to emphasise that a postponement will not be granted simply because the parties agree to it. Ordinarily therefore, if an application for postponement is to be made on the day of the hearing of a case, the legal representatives for the opposing party must appear and be ready to assist the Court both in regard to the application for the postponement itself and if the application is refused, the consequences that would follow.'

It is apposite to refer to the judgment in Carephone (Pty) Ltd v Marcus NO and Others7 where the court held as follows:

‘In a court of law the granting of an application for postponement is not a matter of right. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party's prejudice or potential prejudice.…’8

In SA Transport and Allied Workers Union on behalf of Members v Comwezi Security9 the Court confirmed that an application for postponement will only be granted in exceptional and unforeseen circumstances.

The general principles applicable to postponements was aptly summarized in the judgment of Insurance and Banking Staff Association and Others v SA Mutual Life Assurance Society10, where it was held as follows by His Lordship Mr Justice Jajbhay, and which can equally be applied in this instance:

‘[44] In an application for postponement, the legal principles established in the High Court over the years apply equally in practice in the Labour Courts. For the purpose of the present application, the following principles apply:

(a) The trial judge has a discretion as to whether an application for postponement should be granted or refused. (R v Zackey 1945 AD 505; Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (Nm).)

(b) That discretion must at all times be exercised judicially. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons. (R v Zackey; Myburgh Transport; Joshua v Joshua 1961 (1) SA 455 (G) at 457D.)

(c) The trial judge must reach a decision after properly directing his/her attention to all relevant facts and principles. (Prinsloo v Saaiman 1984 (2) SA 56 (O); Johannesburg Stock Exchange & another v Witwatersrand Nigel Ltd & another 1988 (3) SA 132 (A).)

(d) An application for postponement must be made timeously, as soon as the circumstances which might justify an application become known to the applicant. However, in cases where fundamental fairness and justice justify a postponement, the court may in an appropriate case allow such an application for postponement, even though the application was not timeously made. (Myburgh Transport; Greyvenstein v Neethling 1952 (1) SA 463 (C).)

(e) The application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled.

(f) 'Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of a Court will be exercised.' What the court has primarily to consider is whether any prejudice caused by a postponement to the adversary of the applicant for a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanisms. (Herbstein & Van Winsen The Civil Practice of Superior Court in SA (3 ed) at 453; Myburgh Transport.)

(g) 'The Court should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the Applicant if it is not.'

(h) Where the applicant for a postponement has not made the application timeously, or is otherwise to blame with respect to the procedure which the applicant has followed, but justice nevertheless justifies a postponement in the particular circumstances of a case, the court in its direction might allow the postponement but direct the applicant in a suitable case to pay the wasted costs of the respondent occasioned to such a respondent on a scale of attorney and client. Such an applicant might even be directed to pay the costs of the adversary before the applicant is allowed to proceed with the action or defence in the action, as the case may be. (Van Dyk v Conradie & another 1963 (2) SA 413 (C); Tarry & Co Ltd v Matatiele Municipality 1965 (3) SA 131 (E); Myburgh Transport.)’

Also see Shilubana v Nwamitwa (National Movement of Rural Women and Commission for Gender Equality as Amici Curiae)11 where these legal principles were restated.

In considering the application for postponement, it was important for me to have regard to the long history of the matter. At the time of hearing the application, it had been some nine (9) years since Mr Sibanda’s dismissal during 2004. Aggrieved by his dismissal, Mr Sibanda referred a dispute to the CCMA pursuant to which an arbitration award was handed down as far as 22 September 2005. NEHAWU launched a review application of the arbitration award during July 2006. The VUT, despite having received the review application failed to oppose the application or file any opposing papers which resulted in a judgment being granted against it in its absence by Molahlehi J on 25 June 2008. In terms of the judgment, Molahlehi J reviewed and set aside the arbitration award, substituting the award of the Commissioner with an order that the dismissal of Mr Sibanda was substantively unfair. Following this judgment and order, the VUT successfully brought an application to have the default judgment aforementioned rescinded. On 12 August 2009, Pillemer AJ rescinded the default judgment, save for the condonation granted by Molahlehi J for the late filing of the review application.12 Pursuant to the aforesaid, the VUT proceeded to file its answering affidavits to which NEHAWU delivered a replying affidavit. Following this, the Registrar of the Court, on 7 June 2013 enrolled the application for hearing on 17 July 2013.

Having regard to the affidavit by Mr Oberholzer, I was of the view that the VUT’s inability to proceed with its opposition to the review application on 17 July 2013 has not been fully explained for inter alia the reasons that follow.

Mr Oberholzer fails to explain at what time on Friday, 12 July 2013 it first came to his knowledge that the matter had been set down the following Wednesday, 17 July 2013. No explanation is offered concerning any steps he took from Friday, 12 July 2013 until the hearing of this matter (some five (5) days later on 17 July 2013) to either bring a substantive application for a postponement or to file heads of argument with an explanation for the VUT’s failure to do it timeously, naturally accompanied by an appropriate application for condonation.

Moreover, there is no explanation provided in Mr Oberholzer’s affidavit concerning the time or stage at which he instructed Mr Pienaar to attend to the application for a postponement. Mr Pienaar submitted from the bar that he only received instructions late Tuesday evening, 16 July 2013, to bring this application for a postponement. Mr Pienaar stated that Mr Oberholzer’s affidavit was delivered to his [Mr Pienaar’s] home on Tuesday evening.

Having regard to the judgment in the rescission application as well as the answering affidavit filed in the review application,13 it is evident that Mr Pienaar had been involved in this matter previously when arguing the application for rescission of the

judgment by Molahlehi J. No explanation is provided by Mr Oberholzer why instructions were only given to Mr Pienaar on the eve before the hearing of the review application to bring the application for a postponement. Mr Oberholzer provided no explanation why he did not instruct Mr Pienaar, who had been involved in the matter previously, to prepare either heads of argument or a substantive application for postponement on the days preceding the hearing of the review application, in particular after it had come to his attention that the matter had been set down.

Mr Oberholzer, in his affidavit, states that he made several attempts to make contact with the VUT’s legal advisor. Although he does not state the reason for contacting him one can presume that it was to convey to him the situation in which he found

himself. Once again, no explanation is given why a person other than the legal advisor also in a decision-making position was not

contacted or was not contactable. It is hard to belief that the legal advisor would be the only person authorised to make a decision

in this regard, especially when circumstances arose such as these which presented in this matter.

NEHAWU and Sibanda are entitled to finality in this matter, especially given the long history of this matter referred to above.

The very purpose of the LRA is to facilitate expeditious dispute resolution without unnecessary delays. It was clear, at least in my mind, that no acceptable grounds existed for this Court to exercise its discretion in favour of granting the VUT an indulgence by postponing the application in the circumstances.

What was of serious concern to me was that at the hearing of this matter, when Mr Pienaar was offered the opportunity to present

argument in opposition to the review application in the absence of having filed any heads of argument, he informed the court that he had not even been briefed with or provided with a copy of the review application, except for the affidavit by Mr Oberholzer. No reason or explanation was provided for this failure. It appears that it was merely assumed that the court would grant the application for postponement and not a moment’s thought was spent in considering the contrary possibility. This I find unacceptable.

It is for these reasons that the application for postponement was refused.

I now turn to deal with the review application.

Synopsis of relevant factual matrix

Mr Sibanda was employed by the VUT as the International Relations Officer.

During July/August 2003, the VUT participated in a student exchange programme of twelve students from Nigeria. At the end of the programme and after having spent two months at VUT, two of the foreign students applied to study for a Masters degree in

Information Technology (‘M-Tech’) at the VUT the following academic year, 2004. They submitted their respective applications to Mr Sibanda, whom in turn forwarded their applications to the head of the department of Information Technology, Mrs Koen, for her consideration. The VUT has a Policy on Admission of International Leaners (‘the policy’). Mr Sibanda was familiar with the provisions of this policy.

Mrs Koen, after studying the application forms, informed Mr Sibanda that she was unable to accommodate these two foreign students in her department because they did not meet the necessary requirements. She was of the view that the courses they had studied previously were “very theoretical and on a much lower level than [the VUT’s] diplomas.” She concluded that their qualifications were more aligned with that of Computer Systems Engineering. In the circumstances, she returned the applications to Mr Sibanda with an explanatory memorandum to this effect. She advised that their applications should be considered by Mr Badenhorst, the head of the department of Computer Systems. Mrs Koen also sent this explanatory memorandum to Mr Badenhorst.

Some communication and interaction followed between Mr Badenhorst and Mr Sibanda concerning these two foreign students and their

respective academic records. Pursuant to the aforesaid, Mr Badenhorst advised Mr Sibanda during November 2003 that he would be

prepared to accept these two foreign students into the programme for a ‘B-Tech: Computer Systems’.14

Based on the aforesaid, Mr Sibanda addressed letters to these two students on 9 January 2004 informing them that they have been

conditionally accepted to study for a B-Tech in Computer Systems at the VUT.15 The students contacted Mr Sibanda and expressed their dissatisfaction with being accepted for a B-Tech: Computer Systems whilst they applied for participation in the VUT’s M-Tech programme. The aforesaid notwithstanding, they informed Mr Sibanda that the South African High Commission required letters from the VUT confirming that they are financially stable and could afford their

tuition.

During discussions between Mr Sibanda and Mr Du Plessis from the VUT’s finance department, Mr Du Plessis informed him that he could only issue the letters once the students have actually paid their tuition. Although Mr Du Plessis had prepared a draft letter, Mr Sibanda prepared a letter based on the letter by Mr Du Plessis and forwarded it to the South African High Commission. The letter confirmed that the VUT had received from the students an amount of R 6 032.00 “for the payment of their Masters Degree Course…”16

During February 2004, the two students attended at the International Relations Office of the VUT and expressed their dissatisfaction with the fact that they had not been accepted for the M-Tech: Information Technology they applied for and insisted that they be accepted for the aforesaid. Discussion between Mr Sibanda, Mr Badenhorst and the two students ensued in this regard. The matter was then referred to Mr Mokadi the Chancellor of the VUT who in turn referred it to Mrs Pienaar, the head of International Relations at the VUT. This lead to a meeting between Mrs Pienaar, Mrs Sibanda and the two students on 21 February 2004. In essence, the outcome of the meeting was that they could not be accepted for the M-Tech: Information Technology.

On 24 February 2004, a meeting was held between Mrs Pienaar, Mr Sibanda and Professor Du Pre concerning the two students. Mr Sibanda was accused of accepting the students without the necessary authority from the relevant head of the department, namely Mr Badenhorst. Mr Sibanda was placed on compulsory leave and subsequently suspended with effect 1 March 2004.

On 10 May 2004, the VUT levelled three charges against Mr Sibanda.17 The first charge relates to his alleged “Non-compliance with established procedure/management instructions.” In essence,

the VUT contends that insofar as the two students are concerned, Mr Sibanda: (1) failed to ensure that their application forms were adequately completed; (2) failed to obtain prior permission from the head of the department regarding their acceptance/admission; (3) issued letters of conditional acceptance without prior approval and the original forms regarding recommendations; (4) failed to submit reasons for their conditional acceptance; (5) failed to request the students to submit their respective qualifications for consideration prior to their acceptance. In terms of the second charge, the VUT alleges that his conduct infringed upon the good relationship between the VUT, its employees, students and the general public. The third charge relates to the allegation concerning wilful misrepresentation by Mr Sibanda in that he gave false information to the South African High Commission when he confirmed in a letter to them (dated on 26 January 2004) that the VUT had received from the students an amount of R 6 032.00 “for the payment of their Masters Degree Course…”

Pursuant to a disciplinary enquiry Mr Sibanda was found guilty of all the charges against him and the VUT imposed the sanction of a final written warning in respect of the first charge (with its several sub-categories) and the sanction of dismissal in respect of the second and third charges.18 Aggrieved by this decision, Mr Sibanda referred a dispute to arbitration, contending that his dismissal was unfair. Following the arbitration hearing, the Commissioner issued the award that forms the subject matter of this review application.

Grounds of review

I understand the applicant’s grounds of review to be the following. That the Commissioner committed misconduct in relation to his duties in that he misconstrued certain evidence and failed to apply his mind to the evidence properly before him.

It its supplementary affidavit, the applicant contends that the Commissioner committed a gross irregularity by allowing Mr Sibanda

to proceed with his evidence without the VUT having completed its evidence. The applicant further contends that the Commissioner

‘erred’ in various respect concerning the evidence. This basis is used for most of the supplementary grounds of review. I interpose to state that the term ‘erred’ used by the applicant usually applies to appeals rather than review

applications. Having regard to the applicant’s supplementary grounds of review, it appears that they are indeed cast as an appeal and not a review. I deal with the review test hereunder.

The review-test

The proper approach to be adopted by this court in dealing with arbitration reviews is trite. It has been clearly set out in a number of decided cases, chief amongst which is Sidumo and Another v Rustenburg Platinum Mines Ltd and Others.19 In a nutshell, the test is whether a reasonable decision-maker could reasonably arrive at the same conclusion that the decision-maker

whose decision is under review, has arrived at.20 The operation of the Sidumo test was also addressed by the Supreme Court of Appeal (‘SCA’) in Samancor Tubatse Ferrochrome v MEIBC and Others.21

The Supreme Court of Appeal has recently stated as follows in Heroldt v Nedbank Limited:

“[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by a s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.”22

The Sidumo test has been confirmed in Edcon Ltd v Pillemer NO and Others,23 where it was further held that the focal point of the enquiry into arbitration awards in review applications is the reasonableness of the award and that the Court should focus not only on the conclusion arrived at, but also on the material before the Commissioner when making the award.24

The LAC in Afrox Healthcare Ltd v Commission for Conciliation, Mediation and Arbitration and Others25 stated as follows:

‘The fact of the matter is that the reasonable decision maker yardstick crafted in Sidumo, viewed in proper context, is none other than that in the absence of a “rational objective basis” [the Carephone test] between the decision arrived at and the material placed before the decision maker, the relevant decision is clearly not one which a reasonable decision maker would have arrived at.’

It is against this background the applicant’s grounds of review and the arguments presented in this regard are considered

Evaluation of grounds of review

The Commissioner’s award comprise of approximately one and a half pages in toto. After very briefly providing a summary of the facts under the heading “The merits”, the Commissioner proceeds under the heading “Analysis” with a finding comprising a mere two sentences. The Commissioner states as follows:

‘The respondent has proved on a preponderance of probabilities that the applicant was guilty of the misconduct complained of. The applicant has not shown or demonstrated any remorse for his action, instead he seeks to blame others and accuse them of a witch-hunt against him’.

Based on these two sentences, the Commissioner concludes that Mr Sibanda’s dismissal was justified and was procedurally fair. The Commissioner in his award does not provide any proper reasoning or an analysis of the evidence that was presented for reaching this conclusion. This is of particular concern having regard to the fact that the arbitration proceedings were conducted for an entire day during which several witnesses were called to testify and documentary evidence in excess of a hundred pages were presented during the arbitration.

It is inconceivable how a Commissioner, being duty bound to apply his mind to the evidence before him and rationally reason his way to a reasonable conclusion, could make a finding of merely two sentences in these circumstances. This is clearly a serious failure by the Commissioner in his duties as an arbitrator.

Given the fact that some 9 years have lapsed since Mr Sibanda’s dismissal I am of the view that it would not be appropriate nor in line with the spirit or objectives of the LRA to remit the matter to the CCMA for determination before a different Commissioner. I consider it just and equitable to determine on the record as it stands, whether a reasonable decision-maker could still have arrived at the same conclusion to that of the Commissioner, considering all the evidence properly before the Commissioner, the absence of any proper reasoning by the Commissioner notwithstanding.

In so far as the first charge (including its various sub-categories) is concerned, it is important to appreciate that although Mr Sibanda was found guilty by the VUT of this charge, it did not carry the sanction of dismissal. He received a final written warning for this charge. In the premises, this was not the reason for his dismissal. Consequently, I deal only briefly with the evidence relating to this charge.

It is clear from the evidence of Mrs Pienaar that Mr Sibanda was familiar with the VUT’s policy on the Admission of International Learners. It was his duty to take these two foreign students through the process of admission, approval and recommendation or rejection. Part and parcel of this must be to see to it that the application forms are duly completed and accompanied by the necessary supporting documentation. The required signatures of functionaries were absent from the application forms and they

were out of line with the check list used by the department, to name but a few. In my view, Mr Sibanda failed in his duties in this regard.

In so far as the VUT contends that Mr Sibanda did not obtain the prior approval from the head of the department, namely Mr

Badenhorst, this contention is not sustainable. The letter by Mr Badenhorst clearly provides for such permission.26

What is of particular concern to me is that in Mr Sibanda’s letter (dated 26 January 2004) to the South African High Commission,

he confirmed that the VUT had received from these students an amount of R 6 032.00 “for the payment of their Masters Degree Course…” Firstly, the amount only related to one student and not both. A fact that could easily have been and indeed should have been established or verified by Mr Sibanda prior to making such a statement. Secondly, these students were not accepted to study for a Masters Degree, whether conditional or not. This is simply false and a wilful misrepresentation by Mr Sibanda. The evidence clearly indicates that Mr Sibanda knew this to be false. This relates to the second and third charges against him, which charges carried the sanction of dismissal.

Moreover, Mr Sibanda did not have the prior permission from the relevant head of the department, Mrs Pienaar, to state that these

students were accepted to study for a Masters Degree. Mr Sibanda sought to rely on the letter by Mr P Du Plessis, an accountant in the employ of the VUT, in support of his defence that he did obtain the required prior permission from VUT.27 This letter merely confirms the costs for an M-Tech in Information Technology for 2004 and the registration fee. It does not provide any support for his defence.

It is evident that on the strength of inter alia Mr Sibanda’s letter aforementioned (bearing patently false information) study permits were issued to the students to commence their studies for a Masters Degree at the VUT.

Because of this false information the VUT contended that Mr Sibanda’s conduct infringed upon the good relationship between

the VUT, its employees, students and the general public, this was the second charge. The evidence supports this contention. Mr

Sibanda’s conduct had serious implications for the VUT. Based on the false information provided by Mr Sibanda study permits were issued to the students allowing them entry into South Africa and the VUT. This made the VUT party to a criminal offence which would undoubtedly affect its reputation and could jeopardise student exchange programmes in the future. In addition to this, the VUT had serious difficulties in trying to provide accommodation for the students in the graduate quarters, which impacted on other students. The students later left the VUT.

In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others28 it was held as follows, per Conradie JA:

‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise’.

In the premises, I find that Mr Sibanda is indeed guilty of all the charges against him and that dismissal was the appropriate sanction in the circumstances.

Lastly, the applicant contended that the Commissioner committed a gross irregularity by allowing Mr Sibanda to proceed with his

evidence without the VUT having completed its evidence. The applicant does not contend for any prejudice in this regard nor does

there appear to be any prejudice suffered. In any event, the Commissioner has the power, and has a duty, to conduct the arbitration in a manner that he or she considers to be appropriate in the circumstances in order to determine the dispute fairly and quickly.

In the unreported judgment of BHP Billiton Klipspruit Colliery v NUM obo Dlamini Alexander and Others,29 Savage AJ held as follows:

'Section 138(1) of the LRA permits commissioners in the course of arbitration proceedings to "deal with the substantial merits of the dispute with the minimum of legal formalities". In undertaking such task, a commissioner is entitled to "conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly". Commissioners must however be guided by at least three considerations: the resolution of the real dispute between the parties; as expeditiously as possible; and in a manner which is fair.'

Costs

Finally, in relation to the issue of costs. In the exercise of the discretion conferred on me by s 162 of the LRA, the requirements of the law and fairness dictate that there should be no order as to costs. The reason for setting aside the award is ultimately one related to the conduct of the Commissioner, and the opposition to the application was neither vexatious nor frivolous.

Conclusion

For the reasons set out above, and despite the serious failure by the Commissioner in his duties as an arbitrator, I find that a reasonable decision-maker could arrive at the conclusion the Commissioner arrived at.

Order

In the premises, I make the following order:

The application is dismissed.

There is no order as to costs.

_______________

Malan, AJ

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Mr N Thaanyane of Thaanyane Incorporated Attorneys

For the third respondent: Mr J L Pienaar of De Klerk Attorneys

1Act 66 of 1995 (as amended).

2Affidavit by C F Oberholzer: p 2, para 4.

3Centirugo AG v Firestone (SA) Ltd 1969 (3) SA 318 (T) at 320E.

4Isaacs and Others v University of the Western Cape 1974 (2) SA 409 (C) at 411H.

5National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 945 (LC) at, para 59.

6 2000 (4) SA 1110 (CC) at para.17.

7 1999 (3) SA 304 (LAC); (1998) 19 ILJ 1425 (LAC) at para 54.

8(Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398/9).

9(2012) 33 ILJ 727 (LC).

10(2000) 21 ILJ 386 (LC) at para 44.

11[2007] ZACC 14; 2007 (5) SA 620 (CC).

12See: Judgment by Pillemer AJ, p 5, para 19.

13Record: p 94, para 46.

14Record: p 47.

15Record: p 48 – 9.

16Record: p 120 (letter dated 9 January 2004); p 122 (letter dated 26 January 2004).

17Record: p 51.

18Record: pp 66 – 9.

19 2008 (2) SA 24 (CC); also reported at (2007) 28 ILJ 2405 (CC) and also at [2007] 12 BLLR 1097 (CC)

20Ehrke v Standard Bank of SA and Another (2010) 31 ILJ 1397 (LC) at para 19 B/C-D; See also Fidelity Cash Management Service v CCMA and Others (2008) 29 ILJ 964 (LAC); also reported at [2008] 3 BLLR 197 (LAC)

21National Union of Mineworkers v Samancor Ltd (2011) 32 ILJ 1618 (SCA); Also see Samancor Tubatse Ferrochrome v MEIBC and Others (2010) 31 ILJ 1838 (LAC)

22Herholdt v Nedbank Ltd (701/2012) [2013] ZASCA 97 (5 September 2013)

23(2009) 30 ILJ 2642 (SCA)

24Ehrke v Standard Bank of SA & Another (2010) 31 ILJ 1397 (LC) at para 19F-H

25(2012) 33 ILJ 1381 (LAC); [2012] 7 BLLR 649 (LAC) at para 21.

26Record: p 47

27Record: p 132

28(2002) 21 ILJ 1051 (LAC) at 1058C-D.

29Case no JR 650/10; See CUSA v Tao Ying Metal Industries and others [2008] ZACC 15; 2009 (2) SA 204 (CC); (2008) 29 ILJ 2461 (CC)[2008] ZACC 15; ; 2009 (1) BCLR 1 (CC); s 138(1) of the LRA.