Tshabalala v South Local Government Bargaining Council (JR786/2020) [2023] ZALCJHB 347 (3 February 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 786/2020

In the matter between:

SYDNEY TSHABALALA

Applicant

SOUTH LOCAL GOVERNMENT

BARGAINING COUNCIL

First Respondent

BOYCEN.O.Second Respondent

CITY OF TSHWANE METROPOLITAN MUNICIPALITYThirdRespondent

CITY OF TSHWANE METROPOLITAN MUNICIPALITY

Respondent

Heard: 26 January 2023

Delivered: 03 February 2023

Summary: Review of a rescission ruling. Non-application with own rules may constitutes a reviewable irregularity.

JUDGMENT

MABASO AJ

Introduction

[1]The central issue for determination in these proceedings is whether the Second Respondent (“the Arbitrator”) committed a reviewable irregularity in the manner in which he handled the rescission application brought by the Applicant. In answering this question, this Court has to take into account that the Applicant in the papers contends that should the Arbitrator not have handled the matter in the manner he did, he would have brought something to his attention. If this Court agrees with the Applicant, it has to decide an appropriate order in the circumstances.

The central issue for determination in these proceedings is whether the Second Respondent (“the Arbitrator”) committed a reviewable irregularity in the manner in which he handled the rescission application brought by the Applicant. In answering this question, this Court has to take into account that the Applicant in the papers contends that should the Arbitrator not have handled the matter in the manner he did, he would have brought something to his attention. If this Court agrees with the Applicant, it has to decide an appropriate order in the circumstances.

[2]This review was delivered late, and in considering the period of delay, it is this Court’s view that in as much as the delay is excessive the explanation provided therein is reasonable and fully explained as the Applicant raises the issue of the lockdown caused by Covid-19 in 2020, and the prospects of success as detailed hereafter. On this basis the condonation application is granted.

This review was delivered late, and in considering the period of delay, it is this Court’s view that in as much as the delay is excessive the explanation provided therein is reasonable and fully explained as the Applicant raises the issue of the lockdown caused by Covid-19 in 2020, and the prospects of success as detailed hereafter. On this basis the condonation application is granted.

[3]The Third Respondent vigorously opposed this matter, but it did not appear on the hearing date despite being properly served with the notice of set down. Neither the First nor the Second Respondents delivered opposing papers.

The Third Respondent vigorously opposed this matter, but it did not appear on the hearing date despite being properly served with the notice of set down. Neither the First nor the Second Respondents delivered opposing papers.

Assessment and analysis

[4]The Applicant was summoned before a disciplinary hearing by the Third Respondent (“the Employer”) to answer to allegations of misconduct. The Applicant successfully approached the Bargaining Council, asking for an arbitration by an arbitrator as envisaged in section 188A of the Labour Relations Act[1](LRA). The Bargaining Council subsequently appointed the Arbitrator. The latter presided over the disciplinary hearing which commenced and finalised on 27 January 2020, in the absence of the Applicant. The recommended outcome was a dismissal. This decision was accepted and implemented by the Employer.

The Applicant was summoned before a disciplinary hearing by the Third Respondent (“the Employer”) to answer to allegations of misconduct. The Applicant successfully approached the Bargaining Council, asking for an arbitration by an arbitrator as envisaged in section 188A of the Labour Relations Act[1](LRA). The Bargaining Council subsequently appointed the Arbitrator. The latter presided over the disciplinary hearing which commenced and finalised on 27 January 2020, in the absence of the Applicant. The recommended outcome was a dismissal. This decision was accepted and implemented by the Employer.

[5]Later the Applicant, through a law firm, M S Malebaloa Attorneys, launched a rescission application against the same arbitration award, which contained the full address and contact details where subsequent documents and correspondence were to be served. According to the documents before this Court, the Arbitrator was appointed and proceeded to decide the rescission application on paper and dismissed the same; the Applicant was absent because there was no notice of set down issued to the parties.

[6]The Applicant is challenging this rescission ruling, and his principal point is that since the Bargaining Council did not set the

matter down for hearing, he was deprived an opportunity to have his matter properly ventilated, specifically relating to whether there was an agreement that the arbitration proceeding was to commence on the specified date or not, as his then representative from a trade union (“Mr Rasuba”) denied that there was an agreement that the arbitration was to proceed on 27 January 2020. This Court has considered all the affidavits submitted during the rescission application; furthermore, this Court has considered annexures “ST2”, “RA1” and “RA2”, and a letter attached as annexure “ST3”, specifically as to what the Applicant says about these four documents. The points raised in the papers relating to these documents, in my view, requires an investigation by the Bargaining Council.

[7]The Applicantprincipally relies on the principle expounded by the Labour Appeal Court inKugwini Residential Estate and Adventure Sports Centre Limited v Mhlongo NO and Others[2]where that Court held thus, relating toforaswho do not comply with their own rules relating to interlocutory applications:

The Applicant

principally relies on the principle expounded by the Labour Appeal Court in

Kugwini Residential Estate and Adventure Sports Centre Limited v Mhlongo NO and Others

where that Court held thus, relating to

who do not comply with their own rules relating to interlocutory applications:

“However, I do not think that this provision can possibly be relied upon to dispense with the giving of notice to the parties, or at least to the Applicant if the Respondent is in default, of the commissioner’s intention to hear a matter. For a commissioner to hear and determine an application for condonation without notice to the parties would be to ignore theaudi alterem partemrule. There is no indication in the papers that any such notice was given to either the third Respondent, who had applied for condonation, or the appellant. Although it may be argued that it was not necessary to give notice to the appellant, since, although it was a party as contemplated by Rule 31, it had not given notice of intention to oppose the application (leaving aside Annexure “A”), the same cannot be said about notice to the third Respondent. Had notice of the intention to hear the condonation application been given to the third respondent’s legal representative, Hawyes, he would surely have had an obligation to call Annexure “A” to the attention of the CCMA or at least to advise the appellant’s attorneys of the set down of the application. Had that occurred it is unlikely that the CONDONATION RULING would have been made in the absence of both parties and the huge wastage of time and effort which has occurred in this matter would have been avoided.”

However, I do not think that this provision can possibly be relied upon to dispense with the giving of notice to the parties, or at least to the Applicant if the Respondent is in default, of the commissioner’s intention to hear a matter. For a commissioner to hear and determine an application for condonation without notice to the parties would be to ignore the

audi alterem partem

rule. There is no indication in the papers that any such notice was given to either the third Respondent, who had applied for condonation, or the appellant. Although it may be argued that it was not necessary to give notice to the appellant, since, although it was a party as contemplated by Rule 31, it had not given notice of intention to oppose the application (leaving aside Annexure “A”), the same cannot be said about notice to the third Respondent. Had notice of the intention to hear the condonation application been given to the third respondent’s legal representative, Hawyes, he would surely have had an obligation to call Annexure “A” to the attention of the CCMA or at least to advise the appellant’s attorneys of the set down of the application. Had that occurred it is unlikely that the CONDONATION RULING would have been made in the absence of both parties and the huge wastage of time and effort which has occurred in this matter would have been avoided.

[8]This Court inMokotedi v Eskom Holding SOC Limited and Others[3]after reading the judgement ofKungwinisupra said its interpretation thereof is that[4]:

This Court in

Mokotedi v Eskom Holding SOC Limited and Others

after reading the judgement of

Kungwini

supra said its interpretation thereof is that[4]:

“The LAC…held that where the commissioner hears and determines an application for condonation without notice to one of the parties involved in such dispute, it will amount to ignorance of theaudi alteram partem ruleand, if there is prejudice, meaning there must have been something that the party who was absent wanted to raise or might have brought to the attention of the commissioner.”

The LAC…held that where the commissioner hears and determines an application for condonation without notice to one of the parties involved in such dispute, it will amount to ignorance of theaudi alteram partem ruleand, if there is prejudice, meaning there must have been something that the party who was absent wanted to raise or might have brought to the attention of the commissioner.”

The LAC…held that where the commissioner hears and determines an application for condonation without notice to one of the parties involved in such dispute, it will amount to ignorance of the

audi alteram partem rule

and, if there is prejudice, meaning there must have been something that the party who was absent wanted to raise or might have brought to the attention of the commissioner.”

[9]The rules of the Bargaining Council, specifically rule 31(1)(a) read with (3)(d), provides that if a party brings a rescission application, it has to indicate which address it will accept delivery of all subsequent documentation in the proceedings. In the rescission application, the Applicant was represented by M S Malebaloa Attorneys wherein the notice of motion indicated that these legal representatives had been appointed, and the address contained therein was to be used for service and filing.

The rules of the Bargaining Council, specifically rule 31(1)(a) read with (3)(d), provides that if a party brings a rescission application, it has to indicate which address it will accept delivery of all subsequent documentation in the proceedings. In the rescission application, the Applicant was represented by M S Malebaloa Attorneys wherein the notice of motion indicated that these legal representatives had been appointed, and the address contained therein was to be used for service and filing.

[10]There is no indication in the papers that, at some stage, these legal representatives withdrew as the Applicant's representatives during that process, nor an indication that the notice of set down was sent to them. In terms of rule (31)10 of the Council's Rules, a Rescission Commissioner may decide a rescission application in any manner that he deems fit on condition that they“informs the parties of how the process would be conducted and give the parties an opportunity to be heard”.

There is no indication in the papers that, at some stage, these legal representatives withdrew as the Applicant's representatives during that process, nor an indication that the notice of set down was sent to them. In terms of rule (31)10 of the Council's Rules, a Rescission Commissioner may decide a rescission application in any manner that he deems fit on condition that they

informs the parties of how the process would be conducted and give the parties an opportunity to be heard”

[11]In the rescission application, no indication that a set down for hearing was issued as required by rule 31(10), so this is contrary to the latter sub-rule; considering what this Court says above. Therefore, the Applicant did not get a fair hearing in the rescission hearing. Consequently, in applying the above case law this Court concludes that the rescission ruling should be set aside, and parties be allowed to be heard so that they will have an opportunity to ventilate those issues, as highlighted in paragraph 6 of this judgment.

In the rescission application, no indication that a set down for hearing was issued as required by rule 31(10), so this is contrary to the latter sub-rule; considering what this Court says above. Therefore, the Applicant did not get a fair hearing in the rescission hearing. Consequently, in applying the above case law this Court concludes that the rescission ruling should be set aside, and parties be allowed to be heard so that they will have an opportunity to ventilate those issues, as highlighted in paragraph 6 of this judgment.

[12]This Court opines that it would not be in the interest of justice to decide the rescission application, considering that the Applicant has indicated that a number of disputed facts have to be ventilated; therefore, it would be proper that the matter be remitted to the Bargaining Council in order to determine this matter properly.

This Court opines that it would not be in the interest of justice to decide the rescission application, considering that the Applicant has indicated that a number of disputed facts have to be ventilated; therefore, it would be proper that the matter be remitted to the Bargaining Council in order to determine this matter properly.

[13]Consequently, the following order is made:

Consequently, the following order is made:

1.The rescission ruling issued by the Second Respondent under the First Respondent case number PMD 041914 is reviewed and set aside.

The rescission ruling issued by the Second Respondent under the First Respondent case number PMD 041914 is reviewed and set aside.

2.The rescission application is remitted back to the First Respondent for a hearingde novobefore a senior commissioner other than the Second Respondent.

The rescission application is remitted back to the First Respondent for a hearing

de novo

before a senior commissioner other than the Second Respondent.

3.There is no order as to costs.

Sandile Mabaso

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Gwebu

Instructed by: Madlela Gwebu Mashamba Inc.

For the Respondent: No appearance

Instructed by:

[1]No. 66 of 1995, as amended.

No. 66 of 1995, as amended.

[2][2006] 5 BLLR 423 (LAC).

[2006] 5 BLLR 423 (LAC).

[3][2019] ZALCJHB 61 (29 March 2019) at para 25.

[2019] ZALCJHB 61 (29 March 2019) at para 25.

[4]This analysis was followed and applied by this Court,perSnyman AJ, inMystra (Pty) Ltd t/a Silverton Spar and Tops v Thoka NO and Othersand Six Similar Cases (2023) 44 ILJ 204 (LC) at para 38.

This analysis was followed and applied by this Court,

Snyman AJ, in

Mystra (Pty) Ltd t/a Silverton Spar and Tops v Thoka NO and Others

and Six Similar Cases (2023) 44 ILJ 204 (LC) at para 38.