RAWU obo Makhotla v Toyota SA Motors (Pty) Ltd (JR 2627/11) [2014] ZALCJHB 527 (9 July 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2827/11

In the matter between

RAWU obo MAKHOTLA................................................................................................Applicant

and

TOYOTA SA MOTORS (PTY) LTD...........................................................................Respondent

Heard: 09 July 2014

Delivered: 09 July 2014.

EX TEMPORE JUDGMENT

FOURIE AJ:

[1] This is an application to dismiss a review application on the grounds of delay in prosecuting it. The first applicant is Makoma Makhotla, represented by Retail and Allied Workers Unions, Mr Khoza appears for the respondent. The applicant in the review application is Toyota SA Motors. I will refer for convenience to the parties as RAWU and Toyota.

[2] Toyota seeks to review an arbitration award on which the Arbitrator held that the dismissal of the first applicant for absenteeism was unfair and ordered reinstatement. The review application was timeously launched. The exact time periods are clearly set out in the papers and the heads of argument. I do not intend to repeat them now, but since launching the review application, there has been an inordinate delay in prosecuting the review application.

[3] During 2012, it became apparent that there were problems with the record - not all of the evidence had been properly recorded or could be transcribed. After many months of delay, Toyota, finally convened a reconstruction meeting. Certain steps were tjpen after that to have notes of the various representative and the Arbitrator typed up, but by early 2013, it became apparent that the record was very poor and that there was no further steps to be taken in reconstructing the record. This was certainly the view that Toyota took of the matter at the time.

[4] It is worth noung that the notes kept by the representatives are also fairly sparse and this, no doubt, contributed to the difficulties of reconstructing the record. Blame for this cannot be assigned to the arbitrator: Be that as it may, by January or February 2013, Toyota took the view that it had done all if reasonably could to reconstruct the record and the record, as it was, was not sufficient to pursue the review. Toyota then did nothing further in the review, until several months later, RAWU launched an application to dismiss the review application. Toyota then responded by opposing that application, and in the review itself, by filing the record and (a few days ago) by filing a Notice in terms of Rule 7A(8).

[5] The record, as it stands, is incomplete. Some steps have been taken to reconstruct it, but I have been assured by counsel for Toyota that there is no point in giving any directions as to further reconstruction of the record, the record is as good as it gets and as good as it is likely to get. The law is quite clear in that the lack of a record in arbitration proceedings is not in itself a separate ground of review. One does not find a ground of review on those terms in section-145 of the LRA and it certainly does not fall under the 'reasonableness of the result’ type review,

[6] Counsel for Toyota referred me to the matter of Balasana v Motor Bargaining Council & Others (2011) 32 ILJ 297 (LC), a judgment of Molahlehi, J. The facts of that matter are clearly distinguishable. In that matter, the arbitrator did not record the proceedings and did not keep a proper note, and importantly, he never fold the parties that he would not be recording the proceedings or keeping a note. In the present case, the proceedings were recorded. There is no allegation that the arbitrator did not record them properly, rather it appears that somehow large chunks of the evidence seems to have gone missing.

[7] Now, that said, nothing prevents parties from keeping proper notes or recordings of arbitration proceedings themselves and one should be slow to place full blame at the door of the arbitrator or the CCMA. In Balasana, the court reviewed the arbitration award on the basis that the failure by the arbitrator to keep a note or keep a record and his failure to tell the parties of that, deprived them of a fair hearing,

[8] This is not the case here. The case here is the more commonplace case where there simply is not, after some effort, a proper record on which to judge the merits of the review. Now there, as I understand it, that alone does not grant the court the power to set aside an arbitration award. An applicant must then proceed and take its chances on the record as it stands and if it cannot prove the ground, prove that the award should be reviewed and set aside, then the award stands. On the available record, having had a took at that and having considered that and also the terms of the awards and his submissions made in that regard, the prospects of success, ultimately on the review, seem to be poor.

[9] This, although this Is not determinative in the Rule 11 application before me, if is certainly a relevant factor and had the prospects been excellent or had there been a prospect of quickly supplementing the record, I woultLhaveJseen inclined to not grant the application at this stage but perhaps to put the parties on terms as to the further conduct of the review application. However, in this matter there is a reconstructed record, which is not going to improve, and the applicant in the review proceedings has done nothing for almost 18 months to improve the record, the prospects of success do not militate against dismissing the review application on the grounds of delay.

[10] The Labour Relations Act, case law and the practice manual makes it quite clear that expeditious resolution of labour disputes is a fundamental requirement of fairness and of the act itself. An applicant who does nothing for 18 months in prosecuting a review, should not be surprised when a court takes a robust approach and dismisses the review on the grounds of delay.

[11] In the result, I grant an order in terms of prayers 1, 2 and 3 of the notice of motion in the Rule 11 application dated 6 August 2013.

Fourie AJ

Acting judge of the Labour Court of South Africa