J533/97 MUTUAL AND FEDERAL INSURANCE CO. LTD · PDF file · 2018-01-31SOUTH AFRICAN...
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Transcript of J533/97 MUTUAL AND FEDERAL INSURANCE CO. LTD · PDF file · 2018-01-31SOUTH AFRICAN...
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case Number: J533/97
In the matter between:
MUTUAL AND FEDERAL INSURANCE CO. LTD Applicant
and
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 1st Respondent
N.D. PANDYA N.O. 2nd Respondent
SOUTH AFRICAN COMMERCIAL CATERING
AND ALLIED WORKERS UNION 3rd Respondent
SAMMY PADU 4th Respondent
__________________________________________________________________
JUDGMENT
________________________________________________________________
JALI A.J
This is an application in terms of section 145(1) and section 145(2)(a)(ii) of the Labour Relations
Act 66 of 1995(“the Act”) in terms of which the applicant seeks an order:
1. Reviewing, correcting and setting aside the award made by the Second Respondent in terms
of Section 138 of the Labour Relations Act, 66 of 1995 (“the Act”) reinstating the Fourth
Respondent as from the date of his dismissal an 27 January 1997 on the same terms and conditions
that existed at that time, under Case No. GA 3323.
2. Directing the first respondent to appoint another commissioner to conduct afresh an
1
arbitration in terms of section 138 of the Act in order to determine the dispute between the applicant
and the fourth respondent arising out of the fourth respondent ‘s dismissal by the applicant.
3. Directing that such Respondents as oppose the relief sought herein, be ordered to pay the
costs of the application, jointly and severally, the one paying the others to be absolved.”
The fourth Respondent (“the employee”) was employed by the applicant as an underwriting clerk.
On the 21 January 1997 the employee had an altercation with Mrs Steyn at the applicant’s place of
work which led to the employee being charged with insubordination, personal threats to Mrs Cindy
Steyn and absenteeism without permission. The disciplinary enquiry was held on 24 and 27 January
1997. The result of the enquiry were that the employee was found guilty of insubordination and
making personal threats to Mrs Cindy Steyn. This decision was taken on a review (which is what
would normally be regarded as an appeal in other organisations) on the 27 February 1997. The
dismissal was confirmed on Appeal. Thereafter, the dispute was referred to the Commission for
Conciliation Mediation and Arbitration (“CCMA”) by the Union. On 2nd April 1997 Conciliation
was held and the matter could not be resolved. As a result, the dipute was referred to arbitration
which was held on the 13 and the 17 June 1997 at the Commissioner’s Chambers before, Mr
Pandya, the commissioner. The outcome of the arbitration was that the commissioner found that “
the employee is reinstated to his job as from the date of his dismissal on 27 January 1997 on the
same terms and conditions that existed at the time”.
This award was delivered on the 26th of June 1997. The applicant thereafter proceeded to lodge an
application with the Labour Court to review the commissioner’s action in conducting the aforesaid
arbitration hearing on the number of grounds as are set out hereinafter . The First and Second
Respondents are not opposing the application. The Second Respondent filed and Explanatory
2
affidavit and undertook to abide by the decision of the court .The Third and Fourth Respondents
opposed the application.
In seeking the aforesaid order the applicant sought to rely upon the provisions section 145 (2) (a)
(ii)being that the second respondent, Commissioner N.D. Pandya N.O.( hereinafter referred to as
“the Commissioner”) committed a gross irregularity in the conduct of the proceedings in that :
a) he failed to allow proper crossexamination of the employee, that is, not allowing the
applicant’s representative to put to the employee the contradictions between his evidence at the
arbitration and his evidence at the disciplinary inquiry ;
b) he failed to allow the applicant’s representative to address arguments on this contradictions; and
c) he denied the applicant’s representative an opportunity to present closing argument.
The applicant’s Representative also sought to rely upon a number of factors which in his view showed
the bias of the Commissioner in conducting the proceedings because of the manner in which he
conducted same. In this regard Mr Neal Pieters, the applicant’s Representative at the arbitration, in
paragraph 9.2 of his affidavit stated :
“ From the outset of the proceedings the Arbitrator exhibited antagonism towards me and the
Applicant. During the course of the proceedings, he berated and intimidated witnesses called on behalf
of the Applicant, to such an extent that it affected their ability to give their version of events. During
the evidenceinchief of the very first of the Applicat’s witnesses the Arbitrator challenged witness
(Moon) with the assertion that “Managers of Mutual and Federal are incompetent.” The Arbitrator
regularly interrupted my leading of the Applicant’s witnesses with extensive questioning of his own.
He also interrupted my crossexamination of the employee ‘s witness, on occasions cutting me short
3
by saying that “that is a matter for argument.” He did not allow me to crossexamine the employee
when he testified. The arbitration was the first one which I had conducted. I have no legal training, and
was both intimidated and put off by the Arbitrator’s conduct, which affected my ability to properly
conduct the case. Once evidence had been concluded, the Arbitrator asked whether the parties had any
thing more to say. I responded that apart from my closing argument, I had nothing further to say. The
Arbitrator told me that he knew what I was going to say. He therefore disallowed any closing
argument, despite his contention during crossexamination that matters raised by me were matters for
argument.”
The supervisory power of the Labour Court in terms of which it reviews proceedings, decisions
and awards of the CCMA Commissioners, are derive from Section 145 and Section 158 (1) (g) of
the Labour Relations Act No 66 of 1995 (“the act “) .
Sec 145 (1) states that “any party to a dispute who alleges a defect in any arbitration proceedings
under the auspices of the Commission may apply to the Labour Court for an order setting aside the
arbitration award. The Section also set out the time limits for the application for review. Section
145 (2) gives limited grounds of review. Sec 145 (2) states that a defect referred to in subsection
(1), means:
“(a) that the Commissioner
(I) committed misconduct in relation to the duties of the commissioner as an arbitrator;
(ii) committed gross irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded commissioner’s powers; or
(b) that an award has been improperly obtained.”
Section 158 (1) (g) which gives the Applicants wider powers stipulates that
“(1) The Labour Court may:
4
(g) Despite Section 145, review the performance or purported performance of any function
provided for in this Act or any Act or omission of any person or body in terms of this Act on any
grounds that are permissible in law.”
Section 145 has the same grounds as those contained in Section 33 of the Arbitration Act Act 45 of
1965. The provisions contained in Section 158 (1) (g) are fairly wide and allows reviews even on
other grounds as long as they are recognised in common law.
GROSS IRREGULARITY
The provisions of section 145 of the Act, as advised earlier, are similar to the provisions of
Section 33 of the Arbitration Act42 of 1965. The provision of the Arbitration Act have been the
subject matter of a number of decided cases. The courts have held that certain actions, by an
arbitrator or a chairman of a tribunal or other judicial officers amount to gross irregularity. In
reaching that conclusion the courts have held that it is the conduct of the proceedings and not
necessarily the result thereof which is reviewable. Thus the review proceedings do not look at the
ultimate outcome of the arbitration, but will in this regard look at the conduct of the commissioner
who was presiding over the arbitration. See Ellis v Morgan; Ellis v Desai 1909 TS 576 at 581 ,
Goldfields Investment Limited and Another v City Council Johannesburg and Another 1938 TPD
551, R v Zackey 1945 AD 505 at 509 and Ventersdorp Town Council v President Industrial Court
and Others (1992) 13 ILJ 1465 (LAC) at 1476 .
In the Goldfields Investments LTD matter (supra) at 560 Schreiner J said:
“It seems to me that gross irregularities fall broadly into two classes, those that take place openly,
as part of conduct of trial they might be called patent irregularities and those that take place inside
5
the mind of judicial officer, which are only ascertainable from the reasons given by him and which
might be called latent. Of course, even the first class are only material inamuch as they prevent, or
are deemed to prevent, the magistrate’s mind of being properly prepared for the giving of the
correct decision. But unlike the second they admit of objective treatment, according to the nature of
the conduct. Neither in the case of latent nor in the case of patent irregularities need there may be
any intentional arbitrariness of conduct or any conscious denial of justice. The law, as stated in
Ellis v Morgan (supra) has been accepted in subsequent cases, and the passage which has been
quoted from that case shows that it is not merely high handed or arbitrary conduct which is
described as a gross irregularity; behaviour which is perfect wellintentioned and bona fide, though
mistaken, may come under that description. The crucial question is whether it prevented a fair trial
of issues. If it did prevent a fair trial of issues then it will amount to a gross irregularity. Many
patent irregularities have this defect. And if from the magistrate’s reasons it appears that his mind
was not in state to enable him to try the case fairly this will amount to a latent gross irregularity.”
This passage was also referred and quoted with approval by the Labour Appeal Court in the
Ventersdorp Town Council v President of the Industrial Court matter (supra)
The applicant’s representative, Mr Pieters, stated that when the employee was leading evidence at
the enquiry he tried to draw attention of the Commissioner to the fact that the answers furnished
by the employee in response to the questions posed by him were materially in conflict with the
evidence of the employee at the disciplinary enquiry. In response, the commissioner advised him
that this was a matter for argument and did not allow him to persue the point. As a result he did
not have an opportunity to put the contradictory versions to the employee. In his submission the
Applicants Counsel submitted this was a gross irregularity.
6
In response to this allegation the union Representative denied that this happened. However the
commissioner does not deny this allegation. In his affidavit the Commissioner stated that “it is
possible that Peters (sic) was told on occasions that the matter he was raising was a matter for
argument”.
Where a witness has made a previous statement which tends to be inconsistent with a statement
which is made at a hearing, the best known method of impeaching his credibility is to draw the
witness’s attention to the statement which he made previously and provide him with an opportunity
to give an explanation. This would enable counsel and the court to establish whether the witness is
telling the truth or not. In circumstances, the failure or refusal by the Commissioner to give the
representative an opportunity to put the different or contradictory versions to the other side’s
witness should be regarded as a gross irregularity. On the balance of probabilities I do believe that
this incident did happen based on the applicants version and the Commissioner’s response thereto.
Mr Pieters also stated that later, at the time when had finished the leading of evidence, the
commissioner, enquired from both representative if they had anything more to add. The Union
Representative replied that he had nothing to say. However Mr Pieters stated that apart from his
closing argument, he had nothing further to say. In response to this the Commissioner told him
that he knew what he was going to say and then did not permit him to make a closing statement.
The Union denied that Mr Pieters was not allowed to make a closing statement. In their denial they
only stated that Mr Pieters replied by saying “No”. However they did not deal with the second
statement which was allegedly made by Mr Pieters and the Commissioner’s response that he knew
what Mr Pieters was going to say in their affidavit. The alleged offensive statement which was
made by the Commissioner Mr Pieters was not denied by the Union. In argument when he was
7
making his submission the Union representative was asked about this particular statement which
was made by the Company representative (Mr Pieters) and the Commissioner’s comments in
response thereto. He did not say anything except to submit that he had not taken instructions in this
regard and thus could not take the matter further.
In his affidavit, the commissioner does not deal with this particular statement. I am cognisant and
alive to the fact that in his explanatory affidavit, the commissioner did expressly state that he did
not intend covering each and every point raised in the application and that failure to respond to an
allegation should not necessarily be construed as an admission of it. However, even though there
was no express admission by the commissioner, it is such an important allegation of gross
irregularity that I would have expected the commissioner who is Senior Officer of this Court to
take Court in his confidence to address same . It is apparent from his affidavit that the
commissioner moved from addressing the paragraph dealing with his alleged failure to give the
representative an opportunity to cross examine the employee and to address the court (paragraph
10.13) to the paragraph dealing with what happened when he gave the parties the opportunity to
discuss the matter further to see whether it can not be settled. (Paragraph 10.18 to 10.20). Once
again I am of the opinion that this statement was made by the Commissioner. See Stellenbosch
Farmers Winery LTD v Stellenvale Winery (PTY) LTD 1957 (4) S.A 234 (C) at 235 EG and
Plascon Evans Paints v Van Riebeeck Paints 1984 (3) 623 (AD) at 6345
In the circumstances, the commissioner did not give the parties the opportunity to present closing
arguments. This is notwithstanding the fact that earlier on when Mr Pieters sought to challenge the
evidence of the employee, the commissioner had stated that he will have the opportunity during
argument. In the circumstances he did know that Mr Pieters had a number of issues which he would
have liked to raise in his closing argument. He had also indicated to him that he would give him an
8
opportunity to address those issues in closing argument. In the circumstance, he was more than
obliged to give Mr Pieters an opportunity to deliver his closing address. Moreover as he had raised
an expectation. In my view, the failure by the Commissioner to give Mr Pieters the opportunity to
present a closing address was a gross irregularity which on its own should lead to the setting aside
of the Award.
It is a basic principle of our law that every party should be given an opportunity of addressing the
court ( in this case the Tribunal). This could be done either through legal Representative or could in
certain circumstances be done by the litigant himself if he so wishes. In some instances the court
may accept written arguments instead of verbal argument. However the verbal argument is
preferred to the written one . In Transvaal Industrial Foods v B .M.M Process Limited 1973 (1) SA
page 627 (AD)at 628 G Trollip J.A. stated that:
“neither the court nor the litigants should normally be deprived of the benefit of oral argument in
which counsel can fully indulge their forensic ability and persuasive skill in the interest of justice
and their clients.”
The Judge went on to say that the trial court should only accept written arguments in special
circumstances and only after discussion with Counsel. In the circumstances, the importance of oral
arguments at the end of the trial cannot be of overemphasised.
In R v Kaleni 1959 (4) S.A 540 (E) at 546 CD De Villiers J P said:
“It is clear that a failure to afford a party or his legal representative an opportunity to address the
court at the conclusion of a trial constitutes a gross irregularity, whether this failure was due to a
deliberate refusal, or merely to an oversight. If such an irregularity is calculated to course the result
prejudice and the court is not satisfied that prejudice in fact did not result it is bound to set the
proceedings aside.”
9
I was also referred by the applicant’s Representative to RoseInnes, Judicial Review of
Administrative Tribunals in South Africa p172 who confirms the same legal position.
It is apparent from the facts of this matter that at all times, Mr Pieters wanted to address the
arbitrator on the discrepancies. In the circumstances, on a balance of probabilities, he would not
have abandoned his right to deliver his argument to the tribunal. This opportunity was denied to Mr
Pieters by the commissioner . This action by the commissioner, is reviewable action as it did cause
prejudice to the Applicant. See also: O’Connel v The AttorneyGeneral and Magistrate, Pretoria
1930 TPD 9; R v Parmanand 1954 (3) SA 833(A); R v Kaleni 1959(4) SA 540 E at 546 ; District
Commandant, South African Police & Another v Murray 1924 AD 13
“The Commissioner’s actions as aforesaid could also be set aside on the basis that the said actions
interfered with Applicant’s legitimate or reasonable expectation.
In the case Rustenburg Platinum Mines Limited v CCMA and 2 Others case no J467/97
(Unreported ) Gon A.J. at page 23 of the said judgement after referring to the case of Claude Neon
LTD v Gemiston Council and Another 1995 (3) SA 710 held that:
“I agree with the Applicant’s submission that the Second Respondent failed to accord the parties
the hearing that was procedurally fair and that the Second Respondent afforded the parties an
opportunity to make further representations and then apparently on a whim withdrew such
opportunity. Such action on the part of the Second Respondent is unreasonable, and not
procedurally fair. I will even go further to say that it was grossly irregular.
On these basis alone I find a cause to set aside the entire decision of the Second Respondent and
refer it back to the First Respondent and another Commissioner other than the Second Respondent
to here the matter”.
10
Similarity in this case Mr Pieters advised the Commissioner that he had, at least, an issue that he
wanted to raise on argument but was not given an opportunity by the commissioner after raising an
expectation. Accordingly, this was an irregularity on the basis of which the decision of the
Commissioner should be set aside. It was apparent that at the end of the arbitration Mr Pieters was
of the view that he had not been given an opportunity to present the Applicant’s case before this
particular commissioner properly and fairly.
SUPICION OR PERCEPTION OF BIAS
The applicant’s Representative and other company witnesses also raised a number of concerns
which made them believe that the Commissioner was biased in favour of the employee. The
company witnesses relied upon the following incidents which occurred or statements which were
made by the Commissioner for them to come to that conclusion.
a) During the evidence in chief of the witness Mr William Moon, he challenged the witness with
an assertion that the “ Managers of Mutual and Federal Insurance Company are incompetent”;
b) After the witness Moon had been excused after leading his evidence made comments that with
his many years of experience, he already knew what the case was all about, and informed them that the
failure by the company to allow the crossexamination of the witness who led evidence in aggravation
during the hearing constituted an irregularity which could be very costly to the Applicant.
c) The arbitrator regularly interrupted the leading of witnesses and something took over the
leading of witnesses e.g. Moon and Employee;
d) The shouting at the company witness, Ms Esther Botteril by the Commissioner for giggling
whilst leading evidence which nearly brought her to tears.
e) The cross examining of the witness in an aggressive manner by the commissioner.
f) The leading of the employee’s evidence by the commissioner in stead of him being led by his
representative.
The Commissioner’s general response to these allegations was that “ Where the proceedings of an
11
arbitration are not formally mechanically recorded, it is one of the simplest assertions of an
aggrieved part to aver that the “ Arbitrator exhibited antagonism towards it, and berated and
intimidated its witness to the extent that it affected their ability to give their version of events.”
Whether this was so in this case can be gathered from what evidence the witnesses gave at the
disciplinary hearing and at the arbitration. A comparisim of the two reveal that everything that
witnesses said at the disciplinary hearing was put before me and more. ”
The Commissioner also dealt with the individual allegations. In respect of the first allegation of
having said the Applicants Manager are incompetent the Commissioner stated he did not recall
having said it as it was put and he was being quoted out of context. He had said it in response to
Moon’s evidence that he had sat in the disciplinary hearing to advise the presiding officers. When
asked why it was necessary for him to do that, he said that they did not always know the proper
procedure. He said that “It was in this context that they had not been Au fait with the procedure
and it was put to the witness that implied that they were incompetent.”
Mr Pieters stated he believed that this remark was inappropriate and unwarranted. The Applicant’s
Counsel in his submission stated that this was a comment which should not be made by a judicial
officer, even if it was in the context alleged by the Commissioner as it does cause the litigants to be
unsettled as it happened in this case.
Mr Moon stated that at the time the Commissioner made this statement he had not even read the
transcript of the disciplinary proceedings, yet he described them as incompetent. This comment
together with the manner he was treated during the hearing, according to Mr Moon, led him to
believe that the Applicant would not be afforded a fair hearing by the Commissioner. The Union, on
the other hand, was of the view that Mr Moon’s evidence called for these comments from the
Commissioner. The Union also went on to question the role Mr Moon was playing during the
hearing. In their evidence they contended that it was not an advisory role as alleged, but a
participatory role.
In respect of the second allegation that he stated that he knew what the case was about and made
comments indicating that he was of the of the view that the Applicant’s actions were unfair, the
12
Commissioner had this to say:
“Settlements of disputes between the parties themselves is always encouraged by CCMA. As
hearing proceeds, it often happens that issues crystallise and the parties are encouraged to talk to
each other. Very often the law is summarised for the parties and their options pointed out to them. I
do not recall exactly what happened in this matter but it is possible that various options were
pointed out to the parties.”
The Union’s response was to admit the Applicant’s evidence in this regard but went on to state that
the Commissioner’s remarks were in accordance with the requirements of the Act, particularly Sec
138 (2) and Item 4 of Schedule 8 to the Act. The Union also stated that Pieters’s submissions in this
regard are frivolous and unfounded.
The Applicant’s Counsel submitted, and rightly so, that a Commissioner does not need to be biased
but it is the conduct of the Commissioner which goes towards creating a suspicion and perception
of bias which might be entertained by a lay litigant, which should be reviewed by this court. In this
regard he referred me to BTR Industries S.A. (Pty) Ltd v Mawu & Others (1992) 131 L J 803 In
this matter Hoexter J A also set out the test to be applied in assessing whether the Industrial Court
could be said to have been biased. At page 817 CD he also said:
“For present purposes there may be adopted the definition of “bias” stated in the House of Lords by Lord
Thankerton in Franklin v Minister of Town & Country Planning 1948 AC 84 (HL) at 103. It was
there stated that the proper significance of the word ... “is to denote the departure from the standard of even
handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as
holding a quasi judicial office”.
At 822 BC Hoexter JA also said :
“Provided the suspicion of partiality is one which might reasonably be entertained by a lay litigant
a reviewing court cannot, so I consider, be called upon to measure in a nice balance the precise
extent of the apparent risk. If suspicion is reasonably apprehended then that is the end to the matter.
I find myself in complete agreement in what was forcibly stated by Edmund Davies L. in the
Metropolitan Property case at 314 CD:
‘With profound respect to those who are propounded the “real likelihood” test, I take the view that the requirement
that justice must manifestly be done operates undimished force in case where bias is alleged, and that any
development which appears to emasculate that requirement should be strongly resisted.”
13
If I consider these two comments by the Commissioner, which I do believe were unwarranted in
whatever context they were made, I am disposed to agreeing that a lay litigant in the position of the
Applicant and its witnesses was likely to form an impression that the Commissioner was partial to
the employees case. Both comments were made during and only after the very first witness had led
his evidence.The employee and Mrs Steyn, the aggrieved employee, had not even led their
evidence regarding the incident which had been the subject matter of the inquiry. At the time it
could not have been said that the Commissioner had an objective evaluation and analysis of the
evidence to reach the conclusion he had reached about the Applicant’s case.
Section 138 (1) to (3) of the Act provides :
“(1) The Commissioner may conduct the arbitration in a manner that the Commissioner considers
the appropriate in order to determine the dispute fairly and quick, but must deal with the substantial
merits of the dispute with the minimum of legal formalities.
(2) Subject to the discretion of the Commissioner as to the appropriate form of the proceedings, call
witnesses of any other party, and address concluding arguments to the Commissioner.
(3) If all parties consent, the Commissioner may suspend the arbitration proceedings and attempt to
resolve the dispute through conciliation.”
Section 138 (3) is clear that any attempt by a Commissioner at conciliating a dispute during the
arbitration hearing should be done with the consent of all the parties. The Section does anticipate
the suspension of the arbitration hearing to enable a Commissioner to attempt to conciliate the
dispute. In this case none of the above was done by the Commissioner when he raised his concerns
about the Applicant’s case. Even then the manner and the time when these concerns were raised
could only lead to the Applicant’s representative believing that the matter had been pre judged or
the Commissioner was biased against them.
In dealing with the rest of the concerns raised by the Applicant which led its Representative to
believe that the Commissioner was biased , I would first like to refer to Section 138 (1) and 138 (2)
of the Act. These two Subsections do give a Commissioner greater powers of effectively dealing
with “the substantial merits of the dispute with the minimum of legal formalities.” This has been
interpreted to be directing the Commissioner to investigate the dispute and not merely act as an
umpire. See Du Toit, Wolfrey et el : The Labour Relations Act of 1995 p 310.
14
I do agree with the Commissioner that he has to play an inquisitorial role in the arbitration
proceedings held in terms of the Act. However I do not believe that the intention of the legislature
was to abandon the well established rules of Natural Justice. As the Inquisitorial System is not the
usual practice in our courts or tribunals it even calls for more vigilance on the part of the
Commissioner, when he starts investigating the matter as it might easily lead to a perception or
apprehension of bias especially with lay litigants.
Turning to the third Complaint by the Applicant regarding the interruption of witnesses’s evidence ,
I am in agreement with the views of the Commissioner in this regard. The Act does expect him to
take an active role subject to the Commissioner not abandoning his role of ensuring that justice is
done or is seen to be done at the end of the day. Occasionally this role may be regarded as
interference with the Cross Examination of witnesses. This, obviously may not be taken too kindly
by a practitioner if he is trying to lead his witness. Notwithstanding this concern I do not regard
this interference as having been grossly irregular in any manner as there was no evidence to indicate
that it was not in accordance with the normal practice of asking questions to obtain clarity. Our
courts have held that the role of a trial Judge in civil Proceedings is not that of a “ silent Umpire”
and it is the nature of the trial Judges intervention and not the frequency thereof which is of
significance. See Greenfield Manufacturers v Royton Electrical Engineering 1976 (2) S.A 565 A at
570 EF. The same view can be held with regard to the role of a Commissioner.
The comments set out above in respect of Section 138 dealing with the role of the Commissioner in
respect of hearings would apply with regard to the Complaints which were raised by the Applicant
regarding the alleged aggressive Cross Examination of witnesses and leading of witnesses by the
Commissioner. The Union Representative in his argument also submitted that the Commissioner
normally speaks with a voice of authority and in his view, he was not intimidating the witnesses.
The Commissioner also stated that Mr Pieters was asking leading and irrelevant questions
sometimes which necessitated his intervention. I do accept the Union’s submissions and the
Commissioner’s evidence in this regard. Unless a Commissioner stamps his authority in a hearing it
might become difficult for him to control the hearing later. In any event he is supposed to be in
control of its destiny in terms of Sec 138 (1) and (2).
Whilst the Commissioner might be doing what is expected of him in terms of Section 138 it is
15
important that he should be conscious of our common law regarding entering an arena. In the case
of Solomon & Another N.N.O. v De Waal 1972 (1) S.A. 575 (A) Potgieter J A, dealt with the
intervention by a judge and the descending by the judge into the arena of conflict between the
parties. Potgieter J.A . Held at 580 EH that:
“A perusal of the record reveals that the learned trial Judge often and, unfortunately, quite
unwarrantedly, intervened in the proceedings while defendants’ counsel was cross examining
plaintiff’s witness and during the hearing of defendant’s case. It is unnecessary to quote the
numerous passages in question. Suffice it to say that during the hearing of the plaintiff’s case the
leaned Judge asked certain questions and made certain observations which reflected favourably
upon plaintiff’s case and adversely upon the evidence that the defendant’s counsel asserted would
be adduced for the defendants. Further more during the hearing of the defendant’s case the learned
Judge examined their witnesses in such a manner and made observations in the course thereof of
such a nature as to evince his ostensible disbelief, or at any rate, his doubt about their credibility.
Those and other intervention by the learned Judge must have been most harassing for the
defendant’s counsel, but fortunately he did not allow the actual presentation of defendant’s case to
suffer thereby. However, by descending into arena of the conflict of the parties in that manner the
learned Judge might well have disabled himself from assessing with ;due impartiality the credibility
of the witnesses, the probabilities relating to the issues, and the amount of the damage sustained by
the plaintiff. Even if it were not so, such intervention might well have created the impression, at
least in the mind of the defendants, that he had also disabled himself and that he was favouring or
promoting the plaintiff’s cause and prejudging the case against the defendant. In that regard it must
be born in mind that justice should not only be done but should manifestly and undoubtedly be seen
to be done.”
See also the dictum of Trollip A.J.A in S v Rall 1982 (1) S.A 828 (A) at 831832 which was also
referred to by the Applicant’s Counsel in his argument.
Disciplinary inquiries and Arbitrations relating to unfair dismissal are very serious hearings. In
these matters the dismissed employee is usually facing the ultimate sentence for transgressions in
the work place, namely, a dismissal. In the circumstances for a witness to be giggling during the
hearing is so insensitive and inappropriate that there is every reason for that witness to be
sanctioned. I do agree with the Commissioner’s actions when he reprimand Ms Botterill as she had
to be reprimanded. Whether her actions were due to nervousness or not, it was inappropriate for her
16
to be giggling in that hearing. Such action does amount to the Contempt of the Commission see
Section 142 (8) (h) and (g).
Mr Pieters also complained about the Commissioner disallowing him to crossexamine the
employee and later withdraw that complaint. He also raised a complaint about the Commissioner
receiving and talking on the telephone during the arbitration. I don’t believe that act is a misconduct
and should be subject to a review by this court
Based on my findings of the irregularities as set out above, I make an order that the entire decision
of the Commissioner is set aside and the arbitration is referred back to the CCMA and another
Commissioner, excluding the Second Respondent, should hear the matter de novo. The law requires
me to consider law and fairness in awarding costs. I am of the view that this would be an
appropriate case for not awarding costs against the Third and Fourth Respondents.
The Application succeeds no order as to costs.
JALI AJ
Date of Hearing: 6 November 1997
Date of Judgment: 19 November 1997
For the Applicant: Adv. A.I.S. Redding
Instructed by Rooth and Wessels.
For the Third and Fourth Respondents: Mr Freddy Matsaba of South African Commercial
Catering and Allied Workers Union.
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