South African Police Services and Another v Kgolane and Others (JR119/16) [2021] ZALCJHB 197 (2 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR119/16

In the matter between:

SOUTH

AFRICAN POLICE SERVICES First Applicant

MINISTER

OF POLICE Second Applicant

and

SAPU obo K.P KGOLANE First Respondent

M. RANTHO N. Second Respondent

SAFETY

AND SECURITY SECTORAL

BARGAINING

COUNCIL Third Respondent

Heard: 30 June 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representative by email. Publication on the Labour Court website and released to SAFLII. The date and time for hand-down is deemed to be 10:h00 on 02 August 2021.

JUDGMENT

NSIBANYONI, AJ

Introduction

[1] This is an application in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award issued by the Second respondent (Arbitrator) under the auspices of the Third Respondent, Safety and Security Sectoral Bargaining Council, under case number PSSS149-15/16, dated 20 December 2015. In his award, the Arbitrator found that the dismissal was procedurally and substantively unfair and ordered the Applicant to reinstate the First Respondent retrospectively to the position he occupied as at the date of dismissal being 20 November 2014 under the same terms and conditions that applied as at the date of the dismissal.

[2] The Second Respondent further ordered the Applicants to pay the First Respondent back pay in the sum of R182 000.00 being equivalent of the salary for a period of fourteen (14) months.

[3] The Applicants seek the award to be reviewed and set aside and due to the fact that the recordings of the arbitration proceedings had been lost, the matter be remitted to the Third Respondent to be heard de novo before an arbitrator other than the Second Respondent.

[4] Coupled with the above application, is a condonation application for the late filing of the review application and the reinstatement of the review application. All applications are opposed by the First Respondent.

Background

[5] Mr Kgolane was dismissed from the employ of the First Applicant on 20 November 2014 on account of misconduct.

[6] Aggrieved by his dismissal, Mr. Kgolane, duly represented by South African Police Union (“SAPU”) referred a dispute of unfair dismissal to the Third Respondent and the matter was heard before the Second Respondent on 13 August and 15 December 2015 and the arbitration award was delivered on 20 December 2015.

[7] On 06 July 2016, the applicant launched a review application. The review application was therefore late by almost five months.

Reinstatement of the review application

[8] I deal first with the issue of the late filing of the record of the arbitration proceedings. The Applicants failed to file the record of the arbitration proceedings within 60 days of the date on which the Applicants were advised that the record has been received in terms of clause 11.2.2 the Labour Court Practice Manual (Practice Manual). It now seeks condonation in terms of clause 11.2.3 of the Practice Manual in respect of the late filing of the application record.

[9] The application to review and set aside the arbitration award was launched on 06 July 2017. The Third Respondent (Bargaining Council) dispatched an incomplete record of the arbitration proceedings on 07 July 2017. However, the critical portion of the record was lost by the Arbitrator.

[10] It is trite that Rule 7A(6) requires the applicant to furnish the Registrar and each of the other parties with the copy of the record, as the case maybe, and a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body.

[11] It is apparent that Clause 11.2.2 requires the applicant to file the record with the court within 60 days of the date it was dispatched by the CCMA or Bargaining Council. Alternatively, seek indulgence for the extension of the time period from the opponent or the Judge President of the Labour Court. Failure to do so would have the effect of having the review application being deemed to have been withdrawn.

[12] In the present matter, there was no extension sought and as such the review application has accordingly been deemed to have been withdrawn. This application is in actual fact a request for the revival or reinstatement of the review application.

[13] The reasons for the late filing of the record are common cause. Arbitrator lost a critical portion of the record. Attempts were made to reconstruct the record on 02 June 2017, however the parties that were involved in the arbitration were no longer available or traceable. The parties who attended the reconstruction were never part of the arbitration proceedings that are a subject matter of the current review, however the Arbitrator proceeded to reconstruct the record on the basis of his own written notes.

[14] In March 2018, the Applicants made an inquiry to the Third Respondent to find out whether the records that were reconstructed were filed with the Registrar as required. The Applicants were advised by the Third respondent that the records were already filed with the Registrar on 07 July 2017. However, it never received any notification.

[15] It was only on 11 April 2018 that the State Attorney was furnished with the record. It is conceded by both parties that a substantial and crucial portion of the record is lost, this includes the evidence of the Applicants’ witnesses. Furthermore, the missing portion that was later reconstructed and filed on 07 July 2017 constitutes the handwritten notes of the Arbitrator.

[16] It is apparent from the submissions that the reason for the delay of the filing of the recording, albeit incomplete, is due to the failure of the Arbitrator to secure the recordings of the arbitration proceedings. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others[2], it was stated that:

‘It is the duty of the Commissioner of the CCMA conducting an arbitration to ensure that a proper and complete record of those proceedings is kept together with CCMA, to, ensure that if subsequently there is a review application a proper and complete record is made available to the registrar of the Labour Court. It may well be that a failure by the Commissioner to perform this important function constitutes misconduct or a gross irregularity as envisaged is section 145(2) and (b) respectively.’

[17] In Cashbuild (Pty) Ltd v Merwe NO and Others[3], the Court held that:-

‘The importance of the record cannot be overemphasised. The test for review has recently been affirmed by the Supreme Court of Appeal and the Labour Court requires this Court to examine the record and to determine ultimately whether notwithstanding any defects in the arbitrator’s reasoning or any other reviewable irregularity on the arbitrator’s part, the result of the proceedings can nonetheless be sustained by reference to the record. Where there is an incomplete record, this is obviously impossible where, as in a case such as the present one, the grounds for review are predicated on what are contended by the conclusions and findings that are not supported by evidence. The summary of evidence contained in the arbitrator’s award is intended to be precisely that. It is not a substitute for the record and is not by any means a basis from which reasonableness of any conclusion reached by the arbitrator can be ascertained.’

[18] In the present matter, it is apparent that the Applicants acted in good faith in an attempt to secure the record. The Applicants’ conduct was not intended at frustrating the First Respondent’s case nor was it aimed at abusing the Courts’ processes. This delay is wholly due to the failure of the Arbitrator to secure a complete record, a conduct which is described in Toyota SA supra as a gross irregularity.

[19] Based on the above, the application for an order for the reinstatement of the review application stands to succeed.

Condonation

[20] I now turn to the Applicants’ application for condonation for the late filing of the review application by almost five months. The Applicants attributed the delay to the fact that the award was served at its National Office in Pretoria even though the proceedings were held at the Provincial Office.

[21] After it was decided that the award must be reviewed, Counsel from the Pretoria Bar was briefed but due to the distance between Pretoria and Polokwane, it was difficult to arrange consultations with the officials and counsel. Subsequently, that counsel was removed from the brief and the current counsel was appointed, hence the further delay.

[22] The Applicants argued that it has prospects of success in that the conclusion reached by the Second Respondent is not a reasonable conclusion that any person in a position of the respondent would reach given the evidence presented and the material placed before him.

[23] Even though the delay is excessive, the explanation is reasonable. Also, as it clear from above that the record of the arbitration proceedings is hopelessly incomplete. It is therefore near impossible to determine whether indeed the Applicants have prospects of success. It stand to reason that in the interest of justice, condonation for the late filing of the review application stands to succeed.

Costs

[24] On the issue of costs, I am not persuaded that the facts and circumstances of this case call for a cost order. In any event, costs do not follow the result in this Court.

[25] In the circumstances, I make the following order.

Order:

1. The review application is reinstated.

2. The condonation for late filing of the review application is granted.

3. The arbitration award issued by the Second Respondent under case number PSSS149-15/16 dated 20 December 2016 is reviewed and set aside.

4. The matter is remitted to the Third Respondent for a hearing de novo before an Arbitrator other than the Second Respondent.

5. There is no order as to costs.

T. Nsibanyoni

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. M Rantho

Instructed by: The State Attorney

For the Third Respondent: Mr. A Gerber

Instructed by: South African Policing Union (SAPU)

[1] Act 66 of 1995 as amended

[2] (CCT 228/14 [2015] ZACC 40 ; (2016) 37 ILJ 313 (CC)

[3] JR 516-11, J2735/13 [2016] ZALCJHB 108