to tailor their evidence. The course proposed by counsel is thus a variation on and extension of what was done in Beaumont v Anderson, supra.
15.
I fear that such an endeavour is likely to prove counter productive. There is every prospect that
it will produce a host of new disputes. Moreover, there is a real prospect that at the end
of the enquiry Mrs
. Grobbelaar may still find herself unable to certify. Even if she does certify, it may not be possible to eliminate all disputes,
in which event this Court may be asked to resolve them. I am persuaded that the proposal is too risky, and that it would be inadvisable
for us to adopt it in the circumstances of this case.
16.
What remains is a choice: either to let the judgment in the respondent’sfavour stand, or to
set it aside and to refer the matter for hearing de novo . If the judgment is allowed to stand, then the Department’s right of
appeal will be completely frustrated, thereby prejudicing it. A remittal, on
the other hand, will deprive the respondent
of her judgment and will lead
to the parties incurring more costs. This may be especially hard
on
the respondent, who is an individual and who may not be possessed of
adequate funds. Mr Bam, who led for the respondent, submitted that his
client would be unduly prejudiced by a remittal. He mentioned the matters
to which I have referred, as also the need for finality and, in labour cases, expedition. He pointed to some delay on the part of
the Department’s attorney in attempting to rectify the position prior to thehearing of the appeal on 16 November 2000, though
an appropriate costs
order was made on that occasion. Counsel pointed to the possibility that a
trial de novo may lead to another appeal. He suggested that in having totestify again, the respondent would undergo further “trauma”.
Finally, he borrowed from the criminal appeals and submitted that it was the State’s fault that the tapes were missing. In
evaluating prejudice, he said, such fault was a weighty consideration.
17.
I deal with the last point first. It was not the appellant Department’s fault
that the tapes were lost. The responsibility for their safekeeping rested on
the Department of Labour. It would be too far reaching, in my opinion, to carry any such fault from one department of State to another.
Moreover, we do not know the circumstances of the loss, so that it is difficult to assess fault or its extent. Certainly, the State
should not be blamed for the fact that Mrs. Grobbelaar’s notes are no longer extant. There is no merit in the “trauma”
argument, but the other points raised by Mr. Bam are not without force. On balance, however, it appears to me that the Department’s right of appeal is the overriding consideration.
As has been pointed out, all the witnesses are available. If the matter is
remitted for re - trial
the respondent may prove her case once again, in
which event her position in regard to
costs will be safeguarded. But if the
appeal is dismissed, the Department will lose the opportunity of persuading
this Court that the trial Court erred. It will be fixed with liability in the sum
of R 70449,00 (plus costs) and with a finding that it constructively dismissed the respondent, results which might have not been sustained
on
appeal. It is always unfortunate when a re - trial has to be ordered, but it seems to me to represent the lesser inequity. A re -trial
in this respect means a re-hearing on all aspects of the case.
18.
The Industrial Court no longer operates save to finalise part-heard matters
In other pending matters that court’s functions are now performed by the Commission for Conciliation, Mediation and Arbitration.
See item 22 A of schedule 7 to the Labour Relations Act 66 of 1995 read with Government Notice no.R214 promulgated in Government
Gazette dated 19 February 1999.I do not regard the present matter as part-heard. It follows that the case must be remitted to the
Commission. In a letter before the Court, the National Senior Commissioner expresses regret for what has happened and offers to make
available a commissioner who is experienced in Industrial Court matters to try the case de novo.
19.
With regard to costs, Mr Pretorius properly conceded that the Department
should be liable for the costs of the hearing on 16 November 2000, which
were in a sense wasted. For the rest, I am of the view that it would be fair
to order that the costs at first instance and on appeal be in the cause of the
re-trial.
20.
The following order is made:
1.
The judgments and orders of the Court a quo are set
aside and the matter is referred to the Commission for Conciliation, Mediation and Arbitration for re-hearing de novo before a commissioner (other than Mrs Grobbelaar);
The appellant is to pay the costs of the hearing before this Court on the 16 November 2000 on the basis then ordered. All other costs
at first instance and on appeal are to be costs in the re-hearing contemplated in para 1 above.
____________________
R.G. Comrie
Acting Judge of Appeal
I agree
_________________
RMM Zondo
Judge President
I agree
_________________
K. van Dijkhorst
Acting Judge of Appeal
For the Appellant:
Adv. G.C. Pretorius SC and
Adv. L. Bolt
Instructed by:
The State Attorney, Pretoria
For the Respondent:
Adv. A.J. Bam SC and Adv. C. Pretorius
Instructed by:
Messrs Maartens & Huysamen, Pretoria.
Date of Argument:
5 June 2001
Date of Judgment:
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