Vesela Risk Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR648/18) [2021] ZALCJHB 37 (28 January 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR648/18

In the matter between:

VUSELA RISK SERVICES (PTY) LTD Applicant

and

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION First

Respondent

PANELLIST LUCKY DERRICK MAHLANGU N.O Second

Respondent

AWU obo KALEDI MOKKOO AND PIET SEBOLA Third Respondent

Heard: 01 December 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 28 January 2020.

Summary: When review application is deemed to have been withdrawn, there is no live matter to be entertained – on the other hand, a polygraph test is not sustainable without corroborating evidence.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] The applicant, Vusela Risk Services (Pty) Ltd (Vusela), seeks to review and set aside the arbitration award in terms of section 145 of the Labour Relations Act[1] (LRA), rendered by the second respondent, Commissioner Lucky Derrick Mahlangu (Commissioner) under the auspices of the first respondent,

the Commission for Conciliation Mediation and Arbitration (CCMA), under case number GAEK9924-17 and dated 25 February 2018. The

Commissioner found that the dismissal of Messrs Kaledi Mokoo (Mr Mokoo) and Piet Sebola (Mr Sebola), respondent employees, members of the third respondent Amalungelo Workers Union (AWU), was unfair and ordered their reinstatement.

[2] Vusela’s impugns the award on grounds that the Commissioner ignored the material evidence that was before him and consequently rendered an unreasonable decision. The application is vehemently opposed by AWU and takes two points in limine. First, misjoinder in that AWU was not cited as a party during the arbitration proceedings. Second, the review application is deemed to have been withdrawn.

Misjoinder

[3] I deem it unnecessary to be arrested by the first point in limine as the LRA 7.11 form and award clearly sites AWU as a party. In any event, it is common cause that the respondent employees are members of AWU and it obviously has locus standi in terms of section 200 LRA. Accordingly, AWU’s misjoinder claim is untenable.

Review application deemed withdrawn

[4] AWU contends in this regard that Vusela filed the transcribed record of the arbitration proceedings outside of the 60-day period stipulated in clause 11.2.2 of the Practice Manual of the Labour Court[2] (Practice Manual). The transcribed record was served on AWU by registered mail on 10 September 2018 and filed with Court 18 September 2018. The 60-day period expired on 3 September 2018 and a such the filing of the record was out of time by 10 days.

[5] In terms of clause 11.2.3 of the Practice Manual, the review application is deemed to have been withdrawn. Since there was no extension sought for it to be kept alive, the Court has no jurisdiction to entertain the matter, so it was further argued.

[6] Clause 11 of the Practice Manual provides as follows:

’11.2.1 Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

11.2.2 For the purposes of Rule 7A(6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has

been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering

and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file

to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.’

[7] It is common cause that the CCMA filed its notice of compliance in terms of Rule 7A(3) of Labour Court Rules (Rules) on 07 June 2018 and was duly served on all the parties. Yet, Vusela adamantly argued that it never received any notice in terms of clause 11.2.1. Mr Rhoodie, Vusela’s legal representative from its attorneys of record, submitted that it was by sheer coincidence

that it became aware that the record had been filed by the CCMA in terms of Rule7A(3) and proceeded to attend to its transcription of 07 July 2018, a date reflected in the transcribers invoice handed up in Court. The essence of Mr Rhoodie’s submission is that, the computation of 60-day period should commence from 07 July 2018 as opposed to 07 June 2018.

[8] Strangely, Mr Rhoodie’s submissions are not supported by evidence before Court. This issue is raised in AWU’s answering affidavit and it asserts that there was a communication sent to Vusela to jolt it to comply with the Practice Manual, but to no avail. In the replying affidavit, Vusela denied receiving the said communication due to some quarantine on its system. However, Vesela does not address the issue of failure to receive a notice in terms of clause 11.2.1. On the contrary, it is apparent from the notice of motion that the CCMA was requested to notify Vusela once it had delivered the record of the arbitration proceedings, a request that was accordingly honoured.[3]

[9] In the circumstances, I am satisfied that Vusela was duly notified of the record had been dispatched in terms of Rule 7A(3) on 07 June 2018 and that the transcribed record was indeed filed outside of the 60-day period. In Overberg District Municipality v IMATU obo Spangenberg and Others,[4] this Court, per Lagrange J, expounded the effect of the deeming provisions in clauses 11.2.3, 11.2.7 and 16.3 of the Practice Manual as follows:

‘11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time.

…

11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Argument) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not be archived or be removed from the archive.

16.3 Where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed. (Emphasis added)

[10] The court concluded that:

‘[23] Whether the practice manual has reduced protracted ancillary litigation relating to reviews which have not been prosecuted expeditiously is debatable. However, it has clarified those time periods, which are not contained in the court rules, within which certain steps in the prosecution of the review must be taken. Not only does the manual prescribe the acceptable time periods for performing such steps but attaches adverse consequences to non-compliance therewith by means of deeming provisions in clauses 11.2.3, 11.2.7 and 16.3. in terms of which a review application is deemed withdrawn, lapsed or dismissed. Those deeming provisions curtail the dilatory prosecution of a review and ought to make it unnecessary for a respondent party to launch an application to dismiss the review.

[24] The effect of a review application which is deemed to have been withdrawn, lapsed or dismissed in terms of the provisions of clauses 11.2.3, 11.2.7 and 16.3 of the manual respectively is that to all intents and purposes it ceases to exist as a pending application and this is not akin to a mere suspension or stay. Nothing in the jurisprudence suggests that the legal consequences of the three different terms used to deem a review application inactive are any different from each other. If and when a review applicant succeeds in bringing an application to reinstate it or to retrieve it from its archival state, its status as a pending application will be restored.’

[11] In a nutshell, the effect of the deeming provisions of clauses, and pertinently 11.2.3, is that this Court has no jurisdiction to determine the deemed to have been withdrawn review application in the absence of a substantive reinstatement application and an order reinstating the review application since as there is no live matter between the parties to be entertained.[5]

[12] Turning to the present case, the review application is deemed to have been withdrawn and that is the end of the matter.

Review application

[13] Even if I am wrong in the conclusion I have come to above, the review application stands to be dismissed because it lacks merit. The whole matter turns on the admissibility and cogency of the polygraph test. In DHL Supply Chain (Pty) Ltd v De Beer NO & Others,[6] referred by the Commissioner, the Labour Appeal Court (LAC) recorded some general observations about the introduction of polygraph evidence into court or arbitral proceedings and concluded that ‘the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its

conceptual cogency and the accuracy of its application in every given case’.[7]

[14] In the present case, the respondent employees and other colleagues were subjected to a polygraph test following allegation of theft in the premises of one of Vusela’s clients. All the employees failed the first polygraph test and were given an opportunity to undertake a second test at their costs in order to prove their innocence. All the employees who took the second test polygraph passed and escaped dismissal. The respondent employees refused to undertake the second polygraph test and were subsequently dismissed solely on the basis of the first polygraph test outcome.

[15] Notably, the respondent employees’ contracts of employment state, inter alia, that ‘if an employee fails polygraph test will be seen as breach of trust and may lead to dismissal after investigation’.

However, Vusela failed to conduct an investigation as a result of the polygraph test outcome or lead expert evidence on its cogency and reliability. Tritely, polygraph test can serve as corroboration of other evidence but not conclusive as a standalone.[8] In this instance, it is also telling that the cogency and accuracy of the application of the first polygraph tests was tainted by the results of the second tests as all who undertook the second test passed.

[16] In my view, the Commissioner reasonably found, on the basis of the dictum in Food & Allied Workers Union on behalf of Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt River,[9] referred to with approval in DHL Supply Chain,[10] that Vusela ‘should have conducted an investigation to determine the veracity and to corroborate the results of the polygraph test as it was insufficient to repay on those results alone’.[11]

[17] Accordingly, based on the entirety of the evidence, I am satisfied that the award is beyond reproach and must stand.

Conclusion

[18] It follows that the review application is deemed to have been withdrawn and accordingly there is no matter to be entertained. Alternatively, the award is unassailable as it falls within the band of reasonable decisions.

Costs

[19] As a rule, this Court is slow in granting costs against the losing party in keeping with the requirements of the law and fairness. In the present case, however, Vusela was ill-advised in launching this application.

[20] I, accordingly, make the following order:

Order

1. The review application is dismissed with costs.

__________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr

J Rhoodie of Bester Rhoodie Attorneys

For the Third Respondent:

Advocate M Sebola

Instructed by: SNS

Incorporated

[1] Act 66 of 1995, as amended.

[2] April 2013.

[3] See: Page 3 of CCMA Records’ bundle.

[4] C157/18 (08 June 2020) yet to be reported, at paras 16 – 35.

[5] See: Macsteel Trading Wadeville v Francois van der Merwe N.O and Others (2019) 40 ILJ 798 (LAC).

[6] (2014) 35 ILJ 2379 (LAC).

[7] Ibid at paras 25 - 31.

[8] See: Truworths Ltd v CCMA & others (2009) 30 ILJ 677 (LC) at para 37

[9] (2010) 31 ILJ 1654 (LC).

[10] Supra n 6.

[11] See: Arbitration award, para 22, page 48 of pleadings bundle.