Nelson Mandela Bay Municipality v SAMWU obo Tolom and Others (PR190/20) [2022] ZALCPE 3 (8 February 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

CASE NO: PR190/20

In the matter between:

NELSON MANDELA BAY MUNICIPALITY Applicant

and

SAMWU obo TOLOM First

Respondent

PROF. VAN DER WALT Second

Respondent

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL Third

Respondent

Heard: 16 September 2021

Delivered: This judgment was handed down electronically by circulation to the Applicant and the First Respondent’s Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing- down is deemed to be 14h00 on 8 February 2022.

JUDGMENT

LALLIE, J

[1] This is an application to review and set aside a ruling of the second respondent condoning the late referral of the individual first respondent’s dispute to the third respondent. The application is opposed by the first respondent.

[2] The individual first respondent who will be referred to as the first respondent in this judgment was employed by the applicant. After his dismissal he referred an unfair dismissal dispute to the third respondent. Owing to his failure to serve the referral on the applicant, the third respondent issued a ruling on 14 September 2020 dismissing his matter for lack of jurisdiction. Intent on having the unfair dismissal dispute heard, the first respondent trade union which will be referred to as the SAMWU in this judgment re-referred the dispute. Owing to the delay between the dismissal and the re-referral date, SAMWU filed an application to have the delay condoned. The applicant opposed the condonation application and filed an answering affidavit. SAMWU then filed ‘submissions regarding notice of opposition’ in October 2020. This document served as SAMWU’s replying affidavit. The applicant objected to the document’s late filing. Acting under the auspices of the third respondent, the second respondent who will be referred to as the arbitrator in this judgment considered the condonation application on the papers. He subsequently issued an award condoning the late referral of the first respondent’s dispute to the third respondent. It is that award which the applicant seeks this court to review and set aside.

Application to strike out

[3] The applicant moved an application to have paragraphs 18, 19, 20, 21, 22 and 24 of the answering affidavit struck out on grounds of irrelevance. It was submitted that the evidence contained in the paragraphs constitutes new evidence which was never put to the arbitrator. The first respondent opposed the application on the basis that the paragraphs are background facts to its case.

[4] Rule 11 of the Labour Court Rules reads with Rule 23 of the Uniform Rules gives the Labour Court the discretion to striking out irrelevant matter form pleadings. In the matter which the applicant seeks to strike out the first respondent attacks the applicant for what it refers to as ‘a clear effort to avoid ventilation of the dispute on substance’. The main application before this court is an application to review and set aside an arbitration award condoning the first respondent’s later referral of a dispute to the third respondent. The application is determined on the totality of the evidence which was tendered at the hearing of the condonation application. There are legally accepted defences which may be raised in opposing an application to strike out. None of the defences were raised by the first respondent. Averments in affidavits constitute evidence in support of each party’s case. When regard is had to the test for review and the information that was placed before the arbitrator the inclusion of the matter the applicant is objecting to is inexplicable. The first respondent offered no legal basis for its retention.

[5] After this matter was argued and judgment reserved the applicant forwarded, through the office of the registrar, case law in support of its application to strike out. The first respondent objected to the submission of the authorities and expressed the view that the applicant’s conduct was irregular. The applicant based its argument on clause 61.11 of the Code of Conduct of all Legal Practitioners, Candidate Legal Practitioners and Juristic entities which read thus:

‘61.11 After a hearing when judgment is awaited, a legal practitioner shall not place before, or try to send to, a judicial officer any further material of whatever nature, expect by agreement among representatives of all parties; provided that, if consent is unreasonably withheld, the placing of such further material may, in an appropriate case, be the subject matter of an application to re-open the hearing to receive it or, if the further material consists only of references to authorities which might offer assistance to deciding a question, a legal practitioner may address a request in writing to the judge’s registrar or equivalent court official to approach the judicial officer with an invitation to receive the references.’

[6] The first respondent presented no authority either in support of its objection or to counter the authority the applicant relied on. I therefore could find no impediment to considering the case the applicant forwarded after judgment was reserved in this matter. In First National Bank, A division of First Rand Bank Ltd v Commission for Conciliation, Mediation and Arbitration and Others[1] this court struck our offending paragraphs form an answering affidavit because they constituted matter that was not before the

arbitrator when he was conducting the arbitration proceedings which culminated in the award that was reviewed. For the reasons already given for finding the offending matter in this application irrelevant, paragraphs 18, 19, 20, 21, 22 and 24 of the answering

affidavit are struck out.

[7] The applicant submitted that the arbitrator committed gross irregularities and reached an unreasonable decision which should be reviewed and set aside. The review application is based on procedural and substantive grounds. The applicant submitted that the arbitrator erred in not affording the parties a hearing before taking his decision on the condonation application. The commissioner’s conduct was in breach of rule 31 of the third respondent’s rules which requires that applications be scheduled for hearing. The rule further provides for deviation form hearing an application on condition that the third respondent or the arbitrator informs the parties of how the process will be conducted and give the parties an opportunity to be heard.

[8] The applicant submitted that the third respondent’s failure to schedule the condonation hearing deprived it of the right to he heard as well as the right to a fair hearing. The first respondent denied that the arbitrator acted in breach of rule 31. They relied on clause 7.1 of circular 7 which governed the conduct of cases at the third respondent during the covid 19 pandemic. The clause provides that applications would be scheduled for oral hearings in open venues only when they could not be dealt with by video conferencing. The first respondent submitted that the decision to determine condonation on the papers was consistent with clause 7.1 of circular 7.

[9] The applicant submitted that the first respondent’s submissions were based on a misinterpretation of cause 7.1 of circular 7 which in fact retained the right to be heard by providing that applications could be held via video conferencing. I accept the applicant’s averments that the circular did not amend the rule 31. Clause 7.1 of the circular reads thus:

‘Application proceedings, unless directed otherwise by the SALGBC or Commissioner, will not be scheduled for oral hearing in an open hearing venue. Where application proceedings cannot be dealt with in terms of written submissions, these will be dealt with by video conference facilities.’

[10] A reading of clause 7.1 supports the applicant’s version that the right to be heard was retained. What clause 7.1 did, which is consistent with curbing the spread of the Covid 19 virus was to prohibit hearings in open venues and retained the right to be heard through video conferencing. The applicant relied on Kungwini Residential Estate & Adventure Sport Centrer Ltd v Mhlongo NO & Others[2] where the Labour Appeal Court reaffirmed the commissioner’s obligation to give parties a date, time and place for a hearing.

Non-compliance with provisions of rule 31 of the third respondent’s rules was therefore found to constitute valid grounds to review and set aside a condonation application. Over and above relying on Kungwini, the applicant cited other decisions in which our courts confirmed the correctness of that decision. The first respondent provided no authorities to counter those the applicant relied on. In the circumstances, the applicant’s version must be accepted.

[11] The gross irregularity committed by the arbitrator in denying the applicant the right to be heard had an impact on his final decision on the condonation application. It constitutes a self-standing ground to have the condonation ruling reviewed and set aside.

[12] The procedural ground the applicant relied on was that the first respondent filed the replying affidavit out of time without filing an application for condonation of the lateness. It is the applicant’s case that the replying affidavit contained new matter. Notwithstanding the applicant’s objection, the arbitrator took into account the replying affidavit and used some of its contents in reaching his decision. The first respondent did not deny that the arbitrator took into account a replying affidavit that was not properly before him. It was argued on behalf of the third respondent that the arbitrator whose conduct did nor prejudice the applicant, exercised a judicial discretion in an attempt to achieve a fair and balanced outcome expeditiously without unnecessary legal technicalities and delays.

[13] The first respondent’s argument that the arbitrator exercised his powers properly is untenable. The third respondent has rules which are binding on all its users. Those rules serve a specific purpose of, inter alia, ensuring the smooth running of its processes. The rules require that parties seek condonation for the late filing of papers and they provide arbitrators with no authority to overlook their provisions. The arbitrator acted in breach of the third respondent’s rules in taking into account a replying affidavit that was filed out of time. The decision to grant the condonation application was partially based on the contents of the replying affidavit.

[14] The first respondent’s argument that the gross irregularity did not prejudice the applicant is incorrect. The prejudice of having a condonation application being granted against the applicant irregularly is obviously that it allows the applicant to be hauled unfairly and unnecessarily into arbitration proceedings at a cost.

[15] The applicant sought an order substituting the condonation ruling under review. I am not convinced that the order will be appropriate because one of the grounds the applicant relied on was the arbitrator’s failure to afford it the right to be heard. In order to afford both parties the right to be heard and consistent with the decision in Kungwini (supra), the appropriate order would be the remittal of the matter for a proper hearing to be held before a decision for condonation can be taken.

[16] The applicant sought a costs order against the first respondent. In terms of section 162 (2)(b)(i) of the Labour Relations Act[3] (LRA) a costs order may be granted against a party based on that party’s conduct in defending the matter before court. The first ground for review, namely, the arbitrator’s failure to afford the parties an opportunity to be heard on its own constituted valid grounds to review and set aside the condonation ruling. The ground for review is based on the interpretation of the law which presently has no conflicting decisions. When the first respondent took the decision to oppose the application, it was aware of the legal position as it was legally represented. When the application was argued the first respondent’s legal representative conceded that the ground for review was valid. In light of the concession and the absence of the legal basis for opposing the ground for review, the first respondent acted unreasonably in opposing this application. A costs order in favour of the applicant is therefore justified

[17] In the premises, the following order is made:

Order:

1. Paragraphs 18, 19, 20, 21, 22 and 24 of the answering affidavit are struck out.

2. The condonation ruling issued by the second respondent under case number ECD 092006 dated 9 November 2020 is reviewed and set aside.

3. The matter is remitted to the third respondent for the condonation application to be heard de novo by an arbitrator other than the second respondent in terms of the third respondent’s rules.

4. The first respondent pay the applicant’s costs such costs to include costs of two counsel.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Kroon

SC with Advocate Boswell

Instructed by Rushmere

Noach Inc

For the First Respondent: Ms B. Olowookorun of Bukky

Olowookorun Attorneys Inc

[1] [2017] 11 BLLR 1117 (LC).

[2] [2006] 5 BLLR 423 (LAC).

[3] Act 66 of 1995 as amended.