Tiger Food Brands Limited t/a Albany Bakeries v Levy NO and Others (C104/07) [2007] ZALC 121; (2007) 28 ILJ 1808 (LC) (10 April 2007)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case No: JR 2911/05

In the matter between:

JONGIKHAYA LIVINGSTONE GADLELA Applicant

and

METAL & ENGINNERING

INDUSTRIES BARGAINING COUNCIL First Respondent

RENDANI MASHILA Second Respondent

N F DIE CASTING (now Hayes Lemmerz) (PTY) LTD Third Respondent

JUDGMENT

RAMPAI AJ

[1] The matter came to this court by way of motion proceedings. The primary relief sought was the review and the setting aside of an arbitration award. In addition to the primary relief the applicant also sought an order of costs against the respondent.

[2] In his founding affidavit the applicant alleged that he was an employee of the third respondent. In its answering affidavit, the third respondent elected not to deal with the merits but raised a number of preliminary points.

[3] The notice of motion is defective. According to the notice of motion the matter concerns the review of an arbitration award dated 18 October 2005 under case number MEGA 1622. However, no such arbitration award forms part of the review application. In fact such an arbitration award appears nowhere on the indexed record as a whole.

[4] The notice of motion cites the first respondent as the Metal & Engineering Industries Bargaining Council. The same averment is made in paragraph 3 of the founding affidavit. So far so good. The notice of motion cites the second respondent as Rendani Mashila. However, paragraph 4 of the founding affidavit like paragraph 3 of the selfsame founding affidavit, describes the second respondent as the Metal & Engineering Industries Bargaining Council. The said Mashila is not described as one of the respondents anywhere in the founding affidavit. Yet he is said to be the arbitrator whose award I am called upon to review and set aside.

[5] The notice of motion cites the third respondent as N F Die Casting (Pty) Ltd. In paragraph 5 of the founding affidavit the applicant describes the third respondent in the same manner. Here there is some consistency. But the formal heading of the founding affidavit cites the third respondent differently as Danny Scott.

[6] In paragraph 6 of the founding affidavit the name Mashila appears for the first time in the founding affidavit. The application states the following:

“The hearing was on 20 May 2001. Time was 9h00. But the day of the hearing we never held a hearing Mashila sent the matter back to the Union”.

This is the sum total of Mashila’s involvement according to the founding affidavit.

[7] The notice of motion is supposedly supported by the founding affidavit by Jongikhaya Livingstone Gadlela, the applicant in the present matter. However, the founding affidavit is not signed. The founding affidavit was purportedly attested by the commissioner

of oaths at Katlehong in Germiston on 05 November 2005. Such attestation is meaningless in a case where the affidavit itself is

unsigned by the deponent.

[8] The regulations pertaining of the signing of a sworn statement were promulgated under section 10 Justices of Peace and Commissioner of Oaths Act No. 16 of 1963. The relevant regulations read as follows:

“3(1) The deponent shall sign the declaration in the presence of the commissioner of oaths”.

“3(2) If the deponent cannot write, he shall, in the presence of the commissioner of oaths affix his mark at the foot of the declaration: Provided that if the commissioner of oaths has any doubt as to the deponent’s inability to write, he shall require such inability to be certified at the foot of the declaration by some other trustworthy person”.

Compare Swart v Swart 1950 (1) SA 263 (OPD) at p267

[9] In the instant case, neither the deponent’s signature as rule 3(1) requires nor his mark as rule 3(2) requires appears on the founding affidavit. It follows, therefore, that the omission rendered the founding affidavit fatally defective. The attestation of such a defective affidavit cannot cure such fatal defect. In fact the attestation was an irregular exercise. See rule 7(3) read with rule 7A (2)(c) of the Labour Court Rules. In my view the second point in limine was well taken- vide par 8 of the answering affidavit.

[10] It follows from the aforegoing that the review application in terms of section 145 is not properly before the court.

[11] Save for paragraph 6 of the pro-forma founding affidavit which tersely refers to “….an order reviewing and setting aside the said award of the second respondent” nowhere in the founding affidavit is the arbitration award fully specified. Not only is there a failure to annex or to refer to the arbitration award sought to be reviewed, but no grounds for such review are set out. There is, ex facie the founding papers, no reviewable decision and no grounds to justify such review. On this score alone the founding affidavit falls to be dismissed.

[12] If the court moves beyond the founding affidavit and has regard to the answering affidavit of the third respondent it is evident that the only arbitration ruling involving the applicant and the third respondent is the arbitration ruling dated 16 October 2003 by Marion Shaer, a CDR panellist of Metal & Engineering Industries Bargaining Council. Those arbitration proceedings concerned an alleged unfair dismissal dispute which, as the applicant alleged, occurred on 12 February 2003. That dispute was referred to the said bargaining council on 11 September 2003. Marion Shaer ruled that the referral was late and declined to condone such lateness on the grounds that there was no acceptable and satisfactory explanation for the delay- vide par 10.1 of the arbitration award read with annexure C thereto.

[13] The present review application cannot be said to be intended as a review of Marion Shaer’s ruling whereby she refused to condone the applicant’s late referral given:

that Shaer was not at all named as one of the respondents in the instant application in general or the notice of motion in particular;

that there is virtually no reference to her in the applicant’s founding affidavit;

that her arbitration ruling was not annexed to the applicant’s founding affidavit;

that her arbitration ruling is dated 16 October 2003 whereas the arbitration award the applicant seeks to be nullified is said to be dated 18 October 2005.

[14] It appears that after the applicant’s abortive condonation application which was considered by Marion Shaer, the applicant through the agency of the National Union of Metal Workers of South Africa again referred an unfair dismissal dispute to the CDR- vide annexure A arbitration award p73 of the record. The second referral was about the unfair dismissal dispute which the applicant alleged occurred on 12 February 2005.

[15] On 20 October 2005 Rendani Mashila on behalf of the first respondent responded to the second referral of the same dispute to CDR under the auspices of MEIBC. He advised the applicant that since the dispute had already served before the first respondent

under case number MEGA 1622, the first respondent could no longer entertain the same dispute again. He pointed out to the applicant

that if he was dissatisfied with the arbitration ruling of Marion Shaer, he could take the mater up with the Labour Court for review.

[16] Instead of following that advice, the applicant persisted with the second referral. He is obvious aggrieved by Rendani Mashila or rather the first respondent’s refusal to let him have a second bite of the cherry. Like the first referral the second referral concerns the dismissal of the same employee by the same employer on the same date. In a nutshell the second referral is a duplication of the first. That being the case, the first respondent was correct in declining to entertain it afresh. By coming to this court via Mashila’s route instead of Shaer’s route the applicant was on the wrong track. As long as the arbitration ruling of Shaer stands it remains a valid decision of a public functionary. The applicant cannot simply bypass it and seek the relief he now seeks. He is precluded from doing so. The second referral was therefore, an exercise in futility.

[17] For the aforegoing reason and many more which I deem unnecessary to deal with, I am inclined to dismiss the application. I am persuaded by Mr Buirski’s argument. I could find nothing to persuade me otherwise in the applicant’s heads of argument.

[18] As regards costs, no sound reason exists why the third respondent should not reap the fruits of its success.

[19] Accordingly I make the following order:

19.1 The application is dismissed.

19.2 The applicant is directed to pay the costs of the third respondent.

_______________

Rampai AJ

APPEARANCES

On behalf of the applicant: None

On behalf of the respondent: Adv P Buirski

Instructed by

Hlatswayo Du Plessis Van Der Merwe Nkaiseng

Date of hearing: 14 February 2007

Date of judgment: 14 March 2007