NUM obo Mpete and Others v Matyolo and Another (JR 755/2019) [2023] ZALCJHB 62 (14 March 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 755 /2019

In the matter between:

NUM obo MPETE AND 37 OTHERS

Applicant

And

ADVOCATE XOLANI MATYOLO

First Respondent

ROYAL BAFOKENG PLATINUM MINE

Second Respondent

Heard: 9 March 2023

Delivered: 14 March 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 14 March 2023.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside a private arbitration award issued in consequence of private arbitration proceedings agreed to between the Applicant and the Second Respondent (employer or Respondent). The parties agreed to the terms of reference for the conduct of the arbitration proceedings, which were conducted by the First Respondent (arbitrator). The Applicant seeks an order to the effect that the arbitration award be reviewed and set aside and substituted with one which finds that the dismissal of the individual applicants was substantively unfair.

[2] The review application was filed outside of the prescribed 6-week period and the record of the arbitration proceedings was also filed late. For this, the Applicant applied for condonation, which is not opposed by the Respondent. Having considered the application for condonation and the applicable principles, I am inclined to grant condonation as applied for.

[3] Before I deal with the merits of this application, there are some issues regarding representation to be addressed.

Representation

[4] The review application was filed by the National Union of Mineworkers (NUM) on 17 April 2019 and NUM was acting on behalf of Mr Mpete and 37 other affected individuals and former employees of the Respondent (individual applicants). The Applicant was represented by Mohale Inc. Attorneys. On 5 April 2022, Mohale Inc. Attorneys filed a notice of withdrawal as attorneys of record for the individual applicants 1 – 27. Kubayi and Kubayi Inc. Attorneys filed a notice of substitution and placed on record that they have substituted Mohale Inc. Attorneys in respect of the 27 individual applicants and that they are acting as attorneys of record for 27 of the individual applicants before Court.

[5] The review application was set down for hearing on 9 March 2023 and when the matter was called, Mr Khomola, acting on instructions of Mohale Inc. Attorneys indicated that he was acting on behalf of five of the individual applicants and Mr Kubhayi acted for 27 of them. Another counsel stood up and indicated that he appeared for four of the individual applicants and that he sought a postponement of the matter. I am unable to refer the said counsel by name as he did not sign the appearance form, which representatives appearing in this Court are required to sign. I instructed my secretary to obtain the name of the counsel from his instructing attorney, who was present in Court, but he refused to disclose the name of his counsel. My secretary also approached the counsel in question to ask his name, but he too refused to disclose his name. This conduct is not only unacceptable but also strange as the identity of representatives appearing in open Court is not a secret and was not requested for some sinister purpose or reason.

[6] Be that as it may, the anonymous counsel indicated that he was representing four of the individual applicants and that he was seeking a postponement of the matter, as he was only instructed on Monday to appear in this matter.

[7] I asked the said counsel for the notice wherein the attorney representing the four individual applicants was placed on record, as same was not in the Court file. He indicated that his attorney was around and that he would obtain such a notice. I adjourned the Court to afford the anonymous counsel and his attorney an opportunity to provide the Court with a notice, wherein the attorney was placed on record, which notice had to bear a Court stamp. After the adjournment, the counsel was unable to provide this Court with a copy of the notice as requested and I indicated that the representatives are not on record and can therefore not proceed to represent parties before this Court. The anonymous counsel insisted that another opportunity should be granted, which was refused as this is a Court of law and not a playground – the Court already stood down to afford the opportunity to provide the notice of appointment as attorney of record, and notwithstanding being granted an opportunity to provide the notice, it was not provided. The remainder of the individual applicants were represented and their legal representatives were present and ready to proceed, and so was the Respondent’s.

[8] The matter proceeded without the anonymous counsel and his instructing attorney who were not on record. In my view, it is prudent to set out the reasons for proceeding with the matter.

[9] Firstly, Rule 21 of the Rules for the Labour Court[1] provides for the representation of parties as follows:

‘(1) A representative who acts on behalf of any party in any proceedings, must notify the registrar and all other parties,

advising them of the following particulars:

(a) The representative's name;

(b) the postal address and place of employment or business; and

(c) if a fax number and telephone number are available, those numbers.

(2) Any party who terminates a representative's authority to act and then acts in person or appoints another representative, must give notice to the registrar and all other parties concerned of that termination, and of the appointment of any other representative, and include the representative's particulars, as referred to in subrule (1).

(3) On receipt of a notice in terms of subrule (1) or (2), the address of the representative or the party, as the case may be, will become the address for notices to and for service on that party of all documents in the proceedings, but any notice duly sent or any service duly effected elsewhere before receipt of that notice will, notwithstanding that change, for all purposes be valid, unless the court orders otherwise.

(4) (a) A representative in any proceedings who ceases to act for a party

must deliver a notice to that effect to that party and all other parties concerned.

(b) A notice delivered in terms of paragraph (a) must state the names and addresses of the parties that are notified.

(c) After receipt of a notice referred to in paragraph (a), the address of the party formerly represented becomes the address for notices to and for service on that party of all documents in the proceedings, unless a new address is furnished for that purpose.’

[10] In casu, the Applicant was represented by Mohale Inc. Attorneys, who filed a notice of withdrawal as attorneys of record for the individual

applicants numbered 1 – 27 on 5 April 2022. Mohale Inc. Attorneys has not filed another notice of withdrawal of attorneys of record and the only notice filed indicates that Mohale Inc. Attorneys has withdrawn in respect of the 27 individual applicants. Kubayi and Kubayi Inc. Attorneys filed a notice of substitution and placed on record that they have substituted Mohale Inc. Attorneys in respect of the 27 individual applicants and that they are acting as attorneys of record for 27 of the individual applicants before Court.

[11] The anonymous counsel and his attorney could not provide a notice, compliant with the provisions of Rule 21(1) of the Labour Court Rules to show that the attorney was placed on record and that the registrar was notified accordingly. This, notwithstanding the fact that they were afforded an opportunity to do so. There was also no notice filed in compliance with Rule 21(2) which indicated that they have substituted Mohale Inc. Attorneys in respect of the 4 individual applicants and that they are acting as attorneys of record for 4 of the individual applicants before Court.

[12] It is evident that there was no compliance with the Rules of this Court and that no attorney was placed on record for 4 of the individual applicants and as such, the anonymous counsel and his attorney were not properly before Court, representing any of the individual applicants. Mohale Inc. Attorneys has filed only one notice of withdrawal in respect of the 27 individual applicants, which were represented by Kubayi and Kubayi Inc. Attorneys. There was no prejudice to proceed with the matter as on record, all the individual applicants before Court were represented.

[13] Furthermore, this review application dates from 2019 and the transcribed record alone, excluding the pleadings, comprises almost 2 200 pages. The entire application exceeds 2 500 pages and for this reason, the matter was set down as a special allocation. This Court spent many hours reading and preparing for the hearing of this matter and so did the legal representatives for the Applicant and the Respondent. When the matter was called, all the parties were ready to proceed, except the anonymous counsel who indicated that he represented 4 of the 38 individual applicants and he sought a postponement for the sole reason that he was only ‘briefed on Monday’.

[14] The scarcity of resources in this Court is well-known, as is the unfortunate long delay in matters being set down for hearing. As a result and in an attempt to deal with matters expeditiously, the Practice Manual of the Labour Court[2] (Practice Manual) provides that “an application, whether opposed or unopposed, will generally not be postponed, and certainly not for reasons related to the convenience

of representatives”. Postponement in matters is granted either by agreement between the parties, which agreement must comply with the provisions of the Practice Manual, or when there are compelling considerations to do so. Where a large number of employees seek retrospective reinstatement, the matter must be expedited, rather than delayed.

[15] In casu, the pleadings closed, heads of arguments were filed and this is not a case where witnesses will adduce any evidence or where the parties could be allowed to go beyond the borders of their pleaded case and the grounds for review set out in the papers before the Court. The fact that a counsel was only briefed on the Monday before the matter was set down for hearing, is no reason to postpone, more so where his instructing attorney is not on record before this Court. To make matters worse, the ‘application for postponement’ was made from the bar, without any supporting affidavit or proper application on paper and the other parties, as this Court, were taken by surprise when a postponement was requested.

[16] In Department of Education, Limpopo Province v The Education Labour Relations Council and others,[3] Moshoana J lamented the postponement of matters at the eleventh hour, a sentiment and concern which is widely shared in this Court. It was held that:

‘[9] … This Court runs a very tight ship. The opposed motion roll is now facing north of year 2024 in terms of enrolment, an unacceptable situation, this Court remarks. As a result, once matters are enrolled such matters may be postponed only under exceptional circumstances. Section 1 of the LRA enjoins that there must be effective resolution of disputes. With such an imperative, this Court should not accommodate a conduct where a party leisurely remove a matter from the roll and unilaterally so. The Registrar makes an effort to inform the parties that they have two weeks after notification for a hearing to ensure that the file is in order because thereafter the file will be with the allocated judge and inaccessible.

[10] Files do not come to a chamber of the allocated judge just to decorate the chamber with earth colours. They come to the chambers to enable the judge, in between preparation of judgments for already heard matters, to read the matter in preparation for the hearing. This application having been enrolled three times implies that three judges were subjected to the torture of reading the file for nothing. This cannot be countenanced and it is a serious waste of limited judicial resources and time. Allocating a matter for a hearing means that other deserving matters could not be enrolled given the limited judicial resources. Removing a matter on the eleventh hour implies that another deserving matter continue to fester in the Registrar’s

office awaiting allocation. Such a matter would have been allocated had it been known that a party would on the eleventh hour forego an allocation for no reason at all.’

[17] In Ngunyule v MEIBC and others,[4] a postponement was sought at the eleventh hour, in circumstances where the applicant and his legal representatives were ready to proceed. The Court, dealing with the reasons for postponement, held that:

‘[10] … This Court must emphasise, absence of counsel is not a ground for postponement of a matter, more especially a labour dispute. This Court is enjoined by the Labour Relations Act (LRA)[5] to speedily resolve labour disputes. There seem to be a growing tendency for counsel to only accept a brief to seek a postponement. I have bad news for such a tendency. In my view, where counsel is informed during the brief that a matter is enrolled for argument in the motion Court, such counsel must accept a brief to either move or opposed such a motion. It is, in my considered view, inappropriate

for counsel to only accept an instruction to move a postponement application. In reality, such a brief (postponement brief) does not exist. It is indeed so that counsel may form a view after accepting a brief to move or oppose a motion that the motion is not ripe for hearing. Under those circumstances, he or she may prepare an application to postpone an application that is not ripe for hearing. However, counsel must symbiotically prepare to move or oppose the motion, in the event, the Court is not in agreement.

[11] It has long being held that a counsel who comes to Court with an instruction to seek a postponement must also come prepared in the event a postponement is refused[6]. In the Labour Court, more particularly in regard to a review application, postponement thereof is a rare occurrence unless strong

and cogent reasons are provided why a ripe review application ought to be postponed. The practice manual in the Labour Court perspicuously label a review as an urgent application in nature. Accordingly, the message this judgment conveys is that practitioners in the Labour Court must sparingly to never accept a brief for postponement of a review application only. If the review is ripe for hearing, such an application shall be heard.’

[18] The review application is indeed ripe for hearing and was heard as an opposed application.

Background facts

[19] The individual applicants were employed by the Respondent and they were dismissed in December 2017 for participating in an unprotected strike. The Applicant referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and after the dispute remained unresolved after conciliation, a certificate of outcome was issued. The nature of the dispute was recorded as participating in an unprotected strike and the dispute had to be referred to the Labour Court for adjudication.

[20] The parties elected to avoid the Labour Court route and they agreed to a private arbitration process.

[21] The Applicant and the employer subsequently entered into a private arbitration agreement and the arbitrator was appointed to adjudicate the dispute as a private arbitration and the parties agreed on the arbitrator’s terms of reference and the issues to be decided. In the main, it was to decide whether the individual applicants’ dismissal was fair. The issue to be decided was directly linked to the question of whether the individual applicants were involved in an unprotected or illegal strike or protest and if so, whether their dismissal was fair.

[22] The parties agreed that the arbitration award shall be final and binding and that each party shall abide by and comply with the arbitration award, but it is subject to review.

[23] On 3 March 2019, the arbitrator issued an arbitration award wherein he found that the dismissal of the individual applicants was procedurally and substantively fair. The arbitration award is the subject of this review application.

The test on review

[1] The test that this Court must apply in deciding whether the arbitrator's decision is reviewable has been rehashed innumerable times since Sidumo and Another v Rustenburg Platinum Mines Ltd and others[7] as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[24] However, the arbitration award sought to be reviewed was issued in consequence of a private arbitration agreement between the parties and the award may only be reviewed in terms of the provisions of section 33 of the Arbitration Act.[8]

[25] In Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another[9] (Mphaphuli), the majority in the Constitutional Court held that:

‘The twin hallmarks of private arbitration are thus that it is based on consent and that it is private, i.e. a non-state process. It must accordingly be distinguished from arbitration proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the Labour Relations Act 66 of 1995 which are neither consensual, in that respondents do not have a choice as to whether to participate in the proceedings, nor private. Given these differences, the considerations which underlie the analysis of the review of such proceedings are not directly applicable to private arbitrations.’

[26] The Constitutional Court in Mphaphuli further confirmed that the Sidumo test does not assist in the review of private arbitration awards and held that:

‘To return then to the question of the proper interpretation of section 33(1) of the Arbitration Act in the light of the Constitution. Given the approach not only in the United Kingdom (an open and democratic society within the contemplation of section 39(2) of our Constitution), but also the international law approach as evinced in the New York Convention (to which South Africa is a party) and the UNCITRAL Model Law, it seems to me that the values of our Constitution will not necessarily best be served by interpreting

section 33(1) in a manner that enhances the power of courts to set aside private arbitration awards. Indeed, the contrary seems to be the case. The international and comparative law considered in this judgment suggests that courts should be careful not to undermine the achievement of the goals of private arbitration by enlarging their powers of scrutiny imprudently. Section 33(1) provides three grounds for setting aside an arbitration award: misconduct by an arbitrator; gross irregularity in the conduct of the proceedings; and the fact that an award has been improperly obtained. In my view, and in the light of the reasoning in the previous paragraphs, the Constitution would require a court to construe these grounds reasonably strictly in relation to private arbitration.’[10]

[27] In Stocks Civil Engineering (Pty) Ltd v Rip NO and another[11] (Stocks), the appellant approached the Labour Appeal Court (LAC) contending that the arbitrator had failed to apply his mind to the question of whether the employee should be awarded compensation following the finding that the employee’s dismissal was substantively and procedurally unfair. The LAC considered the test on review and held that:

‘[30] The Labour Court has no inherent common law powers of review. Its powers are to be found within the confines of its enabling act. In the case of reviews of awards of commissioners of the CCMA it is section 145 of the LRA, in the review of functions, acts and omissions under the LRA section 158(1)(g) of that Act, and in the

case of private arbitrations section 33(1) of the Arbitration Act.

[31] It is clear that common law review powers are not granted by section 33(1). Neither are the "wide powers" of review in the popular sense of a total rehearing of the merits. But it does not follow that for this reason the first, so-called "narrow" review is the option. The scope of this review is to be determined from section 33(1) itself, bearing in mind that terms used in the statute may historically have acquired a special jurisprudential meaning.’

[28] In Telcordia Technologies Inc v Telkom SA Ltd[12] (Telcordia), the Supreme Court of Appeal stressed the need, when courts have to consider the confirmation or setting aside of arbitral awards, for adherence to the principle of party autonomy, which requires a high degree of deference to arbitral decisions and minimises the scope for intervention by the courts. It was held that:

‘… by agreeing to arbitration the parties limit interference by courts to the ground of procedural irregularities set out in section 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, “common law” or otherwise. If they wish to extend the grounds, they may do so by agreement but then they have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the court. However, as will become apparent, the common-law ground of review on which Telkom relies is contained – by virtue of judicial interpretation – in the Act, and it is strictly unnecessary to deal with the common law in this regard. But, by virtue of the structure of the judgment below and the argument presented to us, it is incumbent on me to take the tortuous route.’

And further that:

‘The fact that the arbitrator may have either misinterpreted the agreement, failed to apply South African law correctly, or had regard to inadmissible evidence does not mean that he misconceived the nature of the inquiry or his duties in connection therewith. It only means that he erred in the performance of his duties. An arbitrator “has the right to be wrong” on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry – they may be misconceptions about meaning, law or the admissibility of evidence but that is a far cry from saying that they constitute a misconception of the nature of the inquiry. To adapt the quoted words of Hoexter JA: It cannot be said that the wrong interpretation of the Integrated Agreement prevented the arbitrator from fulfilling his agreed function or from considering the matter left to him for decision. On the contrary, in interpreting the Integrated Agreement the arbitrator was actually fulfilling the function assigned to him by the parties, and it follows that the wrong interpretation of the Integrated Agreement could not afford any ground for review by a court.’

[29] In SACCAWU and others v Pick ’n Pay Retailers (Pty) Ltd and others[13] (SACCAWU), the Court summarised the position in respect of the review of private arbitration as:

‘In short: in the case of a review of a private arbitration award, there exists little scope for a review going to the merits, as a private arbitrator has the right to be wrong.’

[30] The Courts have made it clear in numerous judgments that the norms that apply in reviews of private arbitrations are those found in the provisions of section 33 of the Arbitration Act and the wider test of review of section 145 of the Labour Relations Act is not applicable to private arbitrations under section 33 of the Arbitration Act.

[31] In Clear Channel Independent (Pty) Ltd v Savage NO and another,[14] the applicant argued that the test to apply in assessing whether a private arbitration award is reviewable or not was that of a

reasonable decision-maker as set out in Sidumo as the right to fair labour practices applied to all employees. The applicant further argued that Telcordia did not apply as the case before the SCA concerned a commercial dispute and not a labour dispute. The Court held, with reference to the LAC judgments in Stocks that the wider review test under section 145 of the LRA did not apply to private arbitrations under section 33. It further held that, as section 33 of the Arbitration Act did not distinguish between commercial and labour-related disputes, it could not be said that Telcordia did not apply. Accordingly, the Court found that the test set out in Telcordia[15] applied to the review of private labour arbitration disputes. The Court concluded that, by referring the dispute to private arbitration, the parties had limited interferences by the court to the grounds of procedural irregularities as set out in section 33 of the Arbitration Act. The test to apply is set out as follows:

'[50] By agreeing to arbitration parties to a dispute necessarily agree that the fairness of the hearing will be determined by the provisions of the Act and nothing else. Typically, they agree to waive the right of appeal, which in context means that they waive the right to have the merits of their dispute relitigated or reconsidered. They may, obviously, agree otherwise by appointing an arbitral appeal panel, something that did not happen in this case.

[51] Last, by agreeing to arbitration the parties limit interference by courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, ''common law” or otherwise. If they wish to extend the grounds, they may do so by agreement but then they have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the court.'

[32] In short: by agreeing to refer their dispute to private arbitration, the parties limit interference by court to the grounds of procedural irregularities as set out in section 33(1) of the Arbitration Act. The consequence of agreeing to refer the matter to private arbitration is that the parties waive the right to rely on any further ground of review be it 'common law' or otherwise. The grounds of review as set out in section 33(1) of the Arbitration Act can only be extended by agreement between the parties.

[33] Section 33(1) of the Arbitration Act provides for the setting aside of an award as follows:

‘(1) Where –

(a) any member of an arbitration tribunal has misconducted himself in relation to his duties as arbitrator or umpire; or

(b) an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers; or

(c) an award has been improperly obtained, the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside.’

[34] It is within this context that the Applicant's grounds for review must be assessed.

Grounds for review

[35] It is trite that a party who seeks to review an arbitration award is bound by the grounds for review contained in the review application,

subject to one qualification namely, that the Court is obliged to deal with a point of law apparent from the papers.[16]

[36] In short: it is critical that the factual foundation of the review application, including the relevant evidence or reference thereto, be canvassed in the founding or supplementary affidavit and that it be linked to the applicant’s grounds for review. An applicant is bound by the grounds for review raised in the papers before Court. In casu, the Applicant raised two main grounds for review, which I will deal with in turn.

[37] The Applicant’s grounds for review are to be considered within the strict confines of a review of a private arbitration award, as alluded to supra. When one analyses the grounds for review set out in section 33(1) of the Arbitration Act, it is clear that the first three relate to the manner in which the arbitrator functioned, not to the outcome of the arbitration. The

fourth ground, i.e. where the award has been improperly obtained, is also a ground which relates to function.

[38] The role of the reviewing Court is limited to deciding issues that are raised in the applicant’s founding (and supplementary)

affidavit. This was confirmed by the Constitutional Court in Commercial Workers Union of SA v Tao Ying Metal Industries and Others (Tao Ying)[17] where it was held that:

‘…the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. There is much to be said for the submission by the workers that it is not for the reviewing court to tell a litigant what it should complain about. In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application. A litigant may not on appeal raise a new ground of review. To permit a party to do so may very well undermine the objective of the LRA to have labour disputes resolved as speedily as possible.’

Arbitrator exceeded his powers

[39] The first main ground for review is that the arbitrator exceeded his powers.

[40] There are two broad categories of excess of power – absence of jurisdiction and excess of powers within jurisdiction. The first is where an arbitrator acts in the absence of jurisdiction, that is where the necessary jurisdictional facts are not in existence, such as the existence of an employment relationship or a dismissal. The second category is where an arbitrator, having jurisdiction, exceeds the limits of his/her powers, for example, where an arbitrator orders reinstatement of an employee whose dismissal was found only to be procedurally unfair, grants more than the maximum permissible compensation or decided an issue which the parties have not placed in dispute.[18]

[41] The source of an arbitrator’s power is the arbitration agreement. The point of departure in considering this ground for review is to consider what powers were given to the arbitrator and what the issues were that the parties mandated him to decide. An arbitrator may not determine issues not provided for in the arbitration agreement.

[42] As was held in Telcordia[19]:

‘Likewise, it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. To illustrate, an arbitrator in a “normal” local arbitration has to apply South African law but if he errs in his understanding or application of local law the parties have to live with it. If such an error amounted to a transgression of his powers it would mean that all errors of law are reviewable, which is absurd.’

[43] In the founding affidavit, the Applicant stated that the arbitrator exceeded his powers when he assumed powers that he did not have when he found that the individual applicants were on strike. According to the Applicant, the arbitrator exceeded his powers in finding the individual applicants guilty ‘of a misconduct on an unemployment related issue’.

[44] It is evident from the arbitration agreement that the arbitrator was given powers to determine the issues in dispute. The issues in dispute were recorded in the pre-arbitration agreement the parties signed prior to the commencement of the private arbitration proceedings. The parties agreed that it was disputed whether the individual applicants were involved in the unprotected or illegal strike. As this issue was in dispute, the arbitrator was clearly mandated to decide the issue.

[45] In considering the issue of whether the individual applicants were involved in the unprotected or illegal strike and making findings on this aspect, the arbitrator decided an issue he had the power to decide and which he was by agreement between the parties, mandated to decide. As a result, the arbitrator did not exceed his powers and there is no merit in this ground for review.

Arbitrator committed misconduct

[46] The grounds for review contained in section 33(1) of the Arbitration Act relate to the process followed by the arbitrator and not the outcome of the process.

[47] It is apparent from the founding affidavit that the other main complaint in this application is that the arbitrator committed misconduct in the exercise of his powers.

[48] In Stocks, the LAC considered what constituted misconduct within the context of section 33 of the Arbitration Act and held that –

‘[51] What can then be concluded on the meaning of misconduct by an arbitrator in relation to his duties? The judgments evidence tension between the requirements of speed and finality in arbitration (and therefore a minimum of interference by the courts) and the requirement of fairness (which is a public policy consideration and also the supposition upon which the arbitrator’s appointment is based). When one analyses the grounds set out in section 33(1) it is clear that the first three relate to the manner in which the arbitrator functioned, not to the outcome of the arbitration. The fourth ground, ie where the award has been improperly obtained, is also a ground which relates to function. Where for example, false evidence is adduced or a bribe is taken, it detrimentally affects the arbitrator’s judicial functioning. It is also clear that the grounds overlap. The taking of a bribe is misconduct and renders the award improperly obtained. Where the arbitrator seriously shirks his duties it can be classified as misconduct or a gross irregularity in the proceedings. These are some examples. It is not an “either or” situation.

[52] In my view the following principles emerge: A court is entitled on review to determine whether an arbitrator in fact functioned as arbitrator in the way that he upon his appointment impliedly undertook to do, namely by acting honestly, duly considering all the evidence before him and having due regard to the applicable legal principles. If he does this, but reaches the wrong conclusion, so be it. But if he does not and shirks his task, he does not function as an arbitrator and reneges on the agreement under which he was appointed. His award will then be tainted and reviewable. It is equally implicit in the agreement under which an arbitrator is appointed that he is fully cognisant with the extent of and limits to any discretion or powers he may have. If he is not and such ignorance impacts upon his award, he has not functioned properly and his award will be reviewable. An error of law or fact may be evidence of the above in given circumstances, but may in others merely be part of the incorrect reasoning leading to an incorrect result. In short, material malfunctioning is reviewable, a wrong result per se not (unless it evidences malfunctioning). If the malfunctioning is in relation to his duties, that would be misconduct by the arbitrator as it would be a breach of the implied terms of his appointment.’

[49] It is trite that a bona fide mistake of law or fact is not misconduct. Some wrongful or improper conduct (moral turpitude or mala fides) is required and such might be demonstrated if the arbitrator makes mistakes which are so gross or manifest that they could not have been made without some misconduct on the part of the arbitrator. ‘Misconduct’ has been given a far wider meaning and scope in reviews under the LRA.[20]

[50] The Applicant’s case is that the arbitrator committed misconduct by finding that there was a strike without establishing if all the elements of a strike were proven, he ignored evidence and found the individual applicants guilty of misconduct when there was no evidence to support such a finding. Furthermore, the arbitrator ignored evidence when he found the dismissal of the individual applicants procedurally fair. Finally, the arbitrator committed misconduct by finding dismissal an appropriate sanction in the circumstances of this case and by not reinstating the individual applicants.

[51] The Respondent on the other hand submitted that the arbitration award can only be reviewed and set aside on the narrow grounds of review contemplated in section 33 of the Arbitration Act and the award is not reviewable as it is apparent from the award that the arbitrator considered the relevant evidence before he reached his conclusions.

[52] I already alluded to the fact that the grounds for review must be set out in the founding (and supplementary) affidavit. Grounds for review cannot be formulated for the first time in heads of argument. In Northam Platinum Ltd v Fganyago NO and others[21] it was held that:

‘… In my view, the law is very clear that a ground for review raised for the first time in argument cannot be sustained. The basic principle is that a litigant is required to set out all the material facts on which he or she relies on in challenging the reasonableness or otherwise of the commissioner's award in his or her founding affidavit.’

[53] In the Applicant’s heads of argument, much is made of the fact that the arbitrator committed a gross irregularity in relation to his duties, that he did not understand what he was required to determine in the arbitration award, that he did not understand the issues and therefore arrived at a conclusion no other reasonable decision maker could arrive at. It is further submitted that the arbitrator committed gross irregularities, which are so material that it rendered the decision reached unreasonable.

[54] In the Applicant’s heads of argument, it is also submitted that the test on review to be applied is the test of reasonableness as per Sidumo. This is obviously wrong in view of all the authorities referred to supra.

[55] A perusal of the founding affidavit reveals that the Applicant’s pleaded case is not that the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings, as contemplated in section 33(1)(b) of the Arbitration Act, but the Applicant’s

case is premised on section 33(1)(a) in that it is pleaded that the arbitrator has misconducted himself in relation to his duties as arbitrator.

[56] The Applicant cannot introduce a different ground for review in the heads of argument and is confined to the ground for review as pleaded, namely that the arbitrator misconducted himself.

[57] A bona fide mistake of law or fact is not misconduct. Some wrongful or improper conduct is required. It is evident from the arbitration award that the arbitrator recorded the issues he was required to decide, that he provided a summary of the evidence adduced by the parties and their witnesses, that he analysed the evidence and found that the employees made themselves guilty of the allegations levelled against them and he considered the fairness of the dismissal of the individual applicants by reference to Item 6 of Schedule 8: the Code of Good Practice: Dismissal.[22]

[58] There is no merit in the averment that the arbitrator misconducted himself by ignoring evidence or by making findings not supported by the evidence. The arbitration award shows differently, but in any event, the scope to review a private arbitration award on the ground of misconduct is very limited and does not extend to a bona fide error of fact or law by the arbitrator. The Applicant failed to make out a case to support the ground for review that the arbitrator

misconducted himself.

[59] In the premises, the application for review must fail.

Costs

[60] The last issue to be decided is the issue of costs. This Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of law and fairness.

[61] The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a costs order.

[62] In Zungu v Premier of KwaZulu-Natal and Others,[23] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[63] Mr van As for the Second Respondent submitted that the NUM should pay the cost for pursuing a meritless application and that it would be unfair to burden the Respondent with the costs associated with opposing such a meritless application. There is a clear difference between the review of a statutory arbitration and a private arbitration, which was completely ignored by the Applicant.

[64] Mr Khomola for the Applicant submitted that the Applicant has a right to approach this Court and that it should not be punished for doing so and that there should be no order as to cost.

[65] The Applicant lost sight of the fact that this review application could not proceed as if it was the review of an arbitration award issued in a statutory arbitration process and as such Mr van As’ argument in respect of cost is not without merit. However, I am of the view that this application was not mala fide or frivolous and therefore the interest of justice will be best served by making no order as to costs.

[66] In the premises, I make the following order:

Order

1. The late filing of the application for review is condoned;

2. The late filing of the record is condoned;

3. The review application is dismissed;

4. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate M L Khomola Instructed by: Mohale Inc Attorneys For the individual applicants 1 – 27: Mr Khubayi from Kubayi and Kubayi Inc Attorneys For the Second Respondent: Advocate M van As Instructed by: Webber Wentzel Attorneys

[1] GN 1665 of 1996: Rules for the conduct of proceedings in the Labour Court.

[2] Practice Manual of the Labour Court of South Africa, effective 1 April 2013.

[3] Unreported judgment under case number JR 4113/16, delivered on 15 February 2023.

[4] [2023] JOL 57771 (LC) at paras 10 – 11.

[5] Act 66 of 1995 as amended.

[6] See National Police Services Union and others v Minister of Safety and Security and others 2000 (4) SA 1110 (CC).

[7] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 28 ILJ 2405 (CC) at para 110.

[8] Act 42 of 1965.

[9] 2009 (4) SA 529 (CC) at para 198.

[10] Ibid at para 235.

[11] [2002] 3 BLLR 189 (LAC) at para 30.

[12] [2006] ZASCA 112; 2007 (3) SA 266 (SCA) at paras 51 and 85.

[13] [2012] 1 BLLR 71 (LC) at para 7.

[14] [2009] 5 BLLR 439 (LC).

[15] Telcordia at paras 50 – 51.

[16] Commercial Workers Union of SA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 67.

[17] supra fn 16 at para 67.

[18] A Myburgh, C Bosch, ‘Reviews in the Labour Court’, (LexisNexis South Africa) at pp 107 – 117.

[19] Telcordia at para 86.

[20] Myburgh and Bosch, Reviews at pp 413 – 418.

[21] (2010) 31 ILJ 713 (LC) at para 27.

[22] Schedule 8 to the LRA.

[23] (2018) 39 ILJ 523 (CC) at para 24.