Tiger Foods Brands (Pty) Ltd t/a Albany Bakery Randfontein v Makoela NO and Others (JR 1421/12) [2013] ZALCJHB 230 (25 September 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Of interest to other Judges

Case no: JR1421/12

In the matter between:

TIGER FOOD BRANDS (PTY) LTD t/a

ALBANY BAKERY RANDFONTEIN ...............................................................Applicant

and

KAIZER MAKOELA N.O ....................................................................First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION .....................................................................Second Respondent

RUDZANI NETSHAULU ....................................................................Third Respondent

Heard: 11 July 2013

Delivered: 25 September 2013

Summary: Review application, Commissioner relied on new issues when determining rescission application and not inviting parties for further submissions on issues he did not deal with in the default award. Such issues were limited to his personal knowledge and not forming part of what was placed by parties before him. Rescission ruling reviewed and set aside.

________________________________________________________________

BALOYI AJ

Introduction

Review and set aside of the rescission ruling issued by the First Respondent is the relief sought by the Applicant. The ruling follows an application for rescission of the award issued out by the First Respondent after having proceeded with arbitration in default due to the Applicant’s non appearance.

Background facts and arguments

The unfair dismissal dispute between the Applicant and the Third Respondent was set down for arbitration on 14 February 2012 at 9h00 at 125 Main Reef Road, Roodepoort. The Applicant contends that its representative, Mr Ferreira, reported at the venue but the First and Third Respondents were not there. He left after being excused by a CCMA employee as there was no action. After the issuing of the default award, it came to the Applicant’s attention that the identified venue for the proceedings was 127 Fox Street, Johannesburg as set out in the default award. In the Applicant’s understanding, it appeared that there was an unannounced change of venue and the Applicant was, therefore, not in willful default. The Applicant’s further contentions are that the First Respondent dealt with issues which were not before him.

The Third Respondent’s contention, on the other hand, is that there was no change of venue as the matter proceeded as scheduled at Roodepoort before the First Respondent. At the time of hearing of the matter, there was no appearance on behalf of the Applicant. The First Respondent, in his ruling, proceeded on the basis that he was satisfied that service of notice of set down was properly effected. When issuing a rescission ruling, the First Respondent simultaneously issued a variation ruling correcting what he termed “obvious error” in respect of the address to reflect that the proceedings took place at Roodepoort not Johannesburg. Issues around the change of venue were as such not pursued any longer by the Applicant at the time when this application was argued.

Ms Shezi, for the Applicant, when expanding her arguments on the default, relied on AA Ball v Kolisi and Another1 in challenging the First Respondent’s finding based on issues which parties did not place before him. The issues in question were limited to the First Respondent’s personal knowledge, that is, (i) he went out of the hearing room himself to look for the Applicant and, (ii) he did not see the Applicant’s representative within the building of the hearing venue in Roodepoort. The First Respondent did not mention this effort in the default award and elected to do so only in his ruling when dismissing the rescission application. Since the issue in question was never raised by the parties, the First Respondent’s failure to invite the parties to make further submissions on the aspect amounted to a reviewable irregularity. The Applicant’s

further contention in respect of prospects of success is that the Third Respondent admitted guilt at the disciplinary hearing.

On behalf of the Third Respondent, Mr Dipudi pointed that the default was willful in that the Applicant’s representative who was aware of the set down elected to leave the arbitration venue without getting any better clarity on the matter. The Applicant elected to stay away from the matter until when served with a default award. The Applicant relied on unsubstantiated statements that the Third Respondent admitted guilt without producing any record nor the disciplinary chairperson’s finding.

Evaluation

In determining rescission applications, a decision maker (in this respect a Commissioner) is required to deal with whether the party seeking rescission was aware of the proceedings in question.

Furthermore, whether the defaulting party has an explanation for non appearance coupled with prospects of success. The court has elaborated this per Cele AJ (as then he was) in Northern Training Trust v Maake and Others2 as follows:

‘[28] The enquiry in an application for the rescission of an arbitration award is consequently bipartite. The first leg is one which is concerned with whether or not the notice of set down was sent (for instance by fax or registered post). Should evidence show that the notice was sent, a probability is then created that the notice sent was received. The second leg to the enquiry is one which concerns itself with the reasons proffered by the Applicant who failed to attend the arbitration proceedings. Such Applicant needs to prove that he or she was not willful in defaulting, that he or she has reasonable prospects of being successful with his or her case should the award be set aside. However, the Applicant need not necessarily deal fully with the merits of the case.’

In this instant case, it is undeniable that the notice of set down was received by the Applicant and, therefore, the Applicant, as a party seeking rescission, was admittedly aware of the proceedings in question. However, the gist of Applicant’s case is that it was not in willful default because its representative, Mr Ferreira attended to the arbitration hearing on the date of hearing but the First and Third Respondents were not present at the venue on the time specified in the notice of set down. He left after being excused by a CCMA employee.

It is patently clear in the default award that the First Respondent decided to proceed in default based only on being satisfied that the notice of set down was sent to the correct fax number. In the absence of the First and Third Respondent’s mention of the exact time at which the First Respondent started to hear the matter and/or efforts taken by the First Respondent in locating the Applicant’s representative, the most appropriate way is to determine this issue on probabilities. Given the above, it is probable that Mr Ferreira could have attended the arbitration hearing and he left after being excused by CCMA employee. The Applicant was, therefore, not in willful default. It is worth noting that other factors such as the strength of the defaulting party’s case should be taken into account as well.

Furthermore, the Court is confronted with the First Respondent’s decision made based on matters not put before him by the parties in the rescission application. There is no explanatory affidavit filed by the First Respondent to clarify issues to which he relied upon for his rescission ruling. In the absence of such explanatory affidavit, the outcome of his ruling is indicative of his ignorance or misapplication of relevant legal principles.

In Kauesa v Minister of Home Affairs and Others,3 the Court held that:

‘It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants neither in evidence nor oral or written submissions. Now and again a judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides and to invite them to submit arguments either for or against the judge’s point. It is undesirable for a Court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.’

In East Cape Agricultural Cooperative v Du Plessis and Others,4 the award was reviewed and set aside where Commissioner found against party on a point that was not canvassed during hearing. Similar approach was adopted in MEC, Public Work, Northern Province v CCMA and Others5 where Commissioner requested parties to fax documents to him after hearing and based the award on those documents without affording parties opportunity to deal with them.

A highly contested point on prospects of success regarding the Third Respondent’s admission of guilt at the disciplinary hearing constitutes the existence of an issue which is fit for arbitration hearing. It is, in my view, that this will be properly ventilated by way of oral evidence in the arbitration proceedings. Whether guilt is admitted, the Commissioner’s determination goes up to the fairness of the sanction so handed down at disciplinary hearing level. As pointed above in Northen Training Trust matter, the Applicant is not required to deal fully with the merits of the case. This is expanded further in Foschini Group (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others6 where the Court per Francis J held that;

‘[21] The two requirements of fairness and expedition should be balanced. Where there is an apparent conflict between the two, fairness should be given precedence lest injustices are done. To establish that there is a reasonable probability of success on the merits, it suffices if an Applicant shows a prima facie case in the sense of setting out averments which, if established at the proceedings, would entitle that party to the relief asked for. An Applicant need not necessarily deal fully with the merits of the case.’

I am thus inclined to conclude that the First Respondent’s introduction of further issues in the rescission ruling and not having afforded parties to deal with them prior to making such ruling, demonstrates his failure in performing a task he was assigned to carry out.

In the circumstances, the appropriate finding in this instant case is to have the matter remitted to the First Respondent for fresh arbitration as the First Respondent’s ruling falls to be reviewed and set aside.

Since the Applicant has established its case for the rescission of the default award, there is no reason why I should not rescind the award in question. This is not a matter in which a cost order is warranted given the fact that issues forming core of this application were undoubtedly not of the parties’ making. I have also considered that this matter will still be subject to some form of dispute resolution process before the CCMA, when put the other way, litigation is still ongoing.

Order

In the premises, the following order is therefore made:

14.1. A rescission ruling issued under case number GAJB 15957-11 on 24 April 2012 is reviewed and set aside.

14.2. The default award issued under case number GAJB 15957-11 on 24 February 2012 is rescinded.

14.3. The matter is remitted to the Second Respondent for arbitration de novo before any other Commissioner other than the First Respondent.

14.4. There is no order as to costs.

________________

Baloyi, AJ

Acting Judge of the Labour Court

Appearances:

For the applicant: Ms Shezi of Edward Nathan sSonnenbergs

For the Third Respondent: Mr Dipudi of Dipudi & Associates

1 [1998] 6 BLLR 560 (LC).

2 [2006] 5 BLLR 496 (LC) at para 28.

3 [1995] 11 BCLR 1540 (NmS) at 1545C-D.

4 [2000] 9 BLLR 1027 (LC).

5 [2003] 10 BLLR 1027 (LC).

6(2002) 23 ILJ 1048 (LC) at para 21.