National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR370/04) [2007] ZALC 158 (1 March 2007)

IN THE HIGH COURT OF SOUTH AFRICA

HELD AT JOHANNESUBRG

CASE NO : JR370/04

In the matter between:

NATIONAL UNION OF MINEWORKERS 1ST APPLICANT

PETRUS KHUNOU 2ND APPLICANT

AND

COMMISSION FOR CONCILIATION, 1ST RESPONDENT

MEDIATION AND ARBITRATION

TEFFO JOWIE, N O 2ND RESPONDENT

SHIPILANA JONAS, N O 3RD RESPONDENT

RUSTENBURG PLATINUM MINES LTD 4TH RESPONDENT

(AMANDELBULT SECTION)

J U D G E M E N T

LEEUW AJ:

Introduction:

[1] The Applicants have approached this Court on Review seeking an order in the following terms:

“1. REVIEWING and setting aside the ruling issued by the Second Respondent dated 24th April 2003.

2. REVIEWING and setting aside the ruling by the third Respondent dated 4 December 2003 and served on the Applicants on 15 January 2004.

3. A ruling by the above Honourable Court substituting the ruling of the second Respondent that the Applicant’s case is dismissed.

4. A ruling by the above Honourable court substituting the ruling of the third Respondent to the effect that the Applicants have made out a case rescinding the ruling of Commissioner Jonas Shipalana, N O dated 4 December 2002 and served on the Applicants on 15 January 2004.

5. DIRECTING that the matter be referred back to the first Respondent for arbitration before a Commissioner or other (sic) than the Second Respondent and Third Respondent.

6. DIRECTING that such of the Respondents who oppose the relief sought herein be ordered to pay the costs of the application, jointly and severally,

the one paying the other(s) to be absolved.

7. GRANTING the Applicants further or other relief.

[2] The Second Applicant (“Khunou”) was an employee of the Fourth Respondent and was dismissed after a Disciplinary Tribunal convicted him of misconduct. His internal appeal against the conviction was not successful.

[3] He referred the dispute to the First Respondent (CCMA) for conciliation and when the dispute could not be resolved, a Certificate of Outcome was issued with the directive that the dispute be referred to arbitration. The matter was set down for hearing at the CCMA on 24 April 2003.

[4] According to Sehlabaka Machili (Machili) the Regional Control Union Officer of the First Applicant (“The Union”), Khunou was present at the arbitration hearing, but because of the fact that neither his Union Representative nor Attorney were present, “he could not represent himself.” He referred this Court to his affidavit on the Application for Rescission, wherein he gave a detailed explanation for the Attorney’s and Union Representative’s failure to attend the arbitration proceedings.

Reasons for Refusal of Application for Rescission

[5] The Third Respondent (Commissioner Shipalana) noted in his ruling that “the Second Applicant appeared at the arbitration hearing.” This fact is apparent from Machili’s affidavit on the Rescission Application where he states in paragraph 22 thereof that:

“The purpose of this application is to rescind the ruling granted by the Commissioner in the absence of the representative of Applicant who was present at the CCMA but could not represent himself.” He goes further to state in paragraph 23 that: “It was not Mr Khunou’s fault that there was no representative from either the Union and or the Attorney’s offices for the hearing ……”

[6] The Commissioner Shipalana referred to the provisions of section 144 (a) of the Labour Relations Act, which provides that an award or ruling may be varied amongst others, on application of the party effected if the award or ruling was “erroneously sought or erroneously granted in the absence of any party affected by the award.”

[7] He went further to state that if indeed Khunou was present at the arbitration hearing, there is nothing to suggest that he requested a postponement in order to arrange for representation. He also held the view that the Union and the Attorney were not diligent in the execution of their duties.

[8] Furthermore, Machili failed to state in detail whether he had a “bona fide solid to (sic) case to present at arbitration.”

Analyses of Issues:

[9] In this case, Machili, who was not present at the arbitration proceedings, states in his Founding Affidavit that Khunou was in attendance. Khunou deposed to a Confirmatory Affidavit which confirmed that fact.

[10] Martinus Dawid de Klerk (De Klerk) in his Answering Affidavit made on behalf of the Fourth Respondent, the Employer, states that Khunou was not present at the arbitration hearing, but that he saw him in the CCMA premises after the dispute was dismissed by the Second Respondent (Commissioner Teffo).

[11] The fact that Khunou was not present when the matter was called is also confirmed by the Commissioner Teffo in her “Explanatory Affidavit.” The record of proceedings which included the Referral Forms, Notifications and the Ruling could not be traced.

[12] The Union, through the affidavits of Machili and others, insist that Khunou was in attendance. If that is the position, section 144 (a) of the Labour Relations Act can not be applicable, because it only applies where the ruling was granted in the absence of the party who seeks the rescission.

[13] The arbitration hearing was held on 24 April 2003. According to Machili, the Attorney had arranged a consultation with Khunou for the 22 April 2003. Messages were left for the Union Official dealing with this matter to attend the hearing on 24 April 2003 and several attempts were made to contact Mr Radibotseng (Radibotseng), the Union Regional Co-ordinator, to arrange for a postponement and contact the Applicants’ Attorneys. Radibotseng did not attend the proceedings and does not in his Confirmatory Affidavit, explain why he failed to attend the arbitration hearing.

[14] These issues are apparent from the Founding Affidavit of Machili. Commissioner Shipalana was not given any reasonable explanation for the Union’s failure to attend the hearing. As far as Khunou is concerned, it is alleged that he was present, but there is nothing on record to substantiate this fact, save for the fact that he was seen in the CCMA premises by De Klerk.

[15] I am of the view that the Applicants have failed to show that the ruling was “erroneously sought or erroneously granted.” The Applicants were aware of the date of hearing and it is apparent from the Applicants’ Affidavits that the Union and Khunou were properly informed, in accordance with the CCMA Rules, of the date of hearing. Compare De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (AD) at 1038 D.

[16] Commissioner Shipalana carefully considered the grounds for rescission and analysed the facts and material presented before him. He exercised his discretion judicially and there is a rational connection between his ruling and the reasons for coming to the conclusion that the Applicants have not succeeded in persuading him to set aside the Default Ruling of Commissioner Teffo. See Carephone (Pty) Ltd v Marcus NO & Others [1998] 11 BLLR 1093 (LAC) and Rustenburg Platinum Mines (Ltd) (Rustenburg Section) v CCMA and Others. (2006) 27 ILJ 2076 (SCA) I have no reason to interfere with the Ruling of Commissioner Shipalana.

Is it proper to decide on the two Rulings?

[17] Counsel for the Fourth Respondent is correct in submitting that it would be improper to Review the Default Award and the Rescission Application simultaneously.

[18] Applicants have brought an application under section 145 and 158 (1) (a) of the Labour Relations Act. The Review of the Ruling made by Commissioner Teffo was made when he was adjudicating over an arbitration dispute. This Review fall squarely within the provisions of section 145 of the Labour Relations Act.

[19] The Ruling of Commissioner Shipalana is appropriately reviewed under section 158 (1) (g) of the Labour Relations Act. It would therefore be inappropriate for me to grant an order on the Default Ruling granted in the arbitration proceedings since the dispute or the merits thereof were not an issue placed before Commissioner Shipalana or this Court. Compare PSA obo Haschke v MEC for Agriculture & Others (2004) 25 ILJ 1750 (LC) and Johnson v CCMA & Others [2005] 8 BLLR 796 (LC).

[20] The application is accordingly dismissed with costs.

___________________

M M LEEUW

ACTING JUDGE OF THE LABOUR COURT

APPEARANCES:

FOR THE APPLICANTS:

Advocate:

Attorney: A L GOLDBERG (NOMALI TSHABALALA ATTORNEYS)

Suite 1003, 10th Floor, Kelhof Building, 112 Pritchard St

P O Box 9591, JOAHNNESBURG, 2000

TEL: 011 – 337 8501 FAX: 011 – 337 6914

REF: Ms N Tshabalala/mm/NUM/3257/03

FOR THE RESPONDENTS:

FOR 1st, 2nd & 3rd RESPONDENT: CCMA

Private Bag X9512, Polokwane, 0700

TEL: 015 – 297 5010

FOR THE 4th RESPODENT: LEPPAN BEECH INCORPORATED

Ground Fllor, Building 13,

The Woodlands, Woodlands Drive,

WOODMEAD

TEL: 011 – 236 4900 FAX: 011 236 4909

REF: M Schottler/NP Voyi/RP7

DATE OF HEARING : 1 DECEMBER 2006

DATE OF JUDGEMENT : MARCH 2007