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REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE: YES/NO
Case number: 522/98
In the matter between:
SACCAWU & OTHERS
Appellants
and
THE PRESIDENT OF THE INDUSTRIAL
TRIBUNAL 1st Respondent
VENDA SUN HOTEL AND CASINO 2nd
Respondent
CORAM: HEFER ADCJ, HOWIE, PLEWMAN
JJA,
MELUNSKY and FARLAM AJJA
HEARD: 20 NOVEMBER 2000
DELIVERED: 29
NOVEMBER
2000
__________________________________________________________________
SUMMARY:
Industrial Tribunal - Members alleged to be biased - Whether bias
established.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MELUNSKY
AJA:
[1] This is an appeal against a decision of the High
Court of Venda (Coetzee AJ). The appellants, the applicants in the court a
quo, are the South African Commercial Catering and Allied Workers Union
(“the Union”) and 173 individuals who had been employed
by Venda Sun
Hotel and Casino Limited, the second respondent in the court a quo
(“the second respondent”). The first respondent in the High Court
was the President of the Industrial Tribunal of Venda.
At the relevant time
labour matters in Venda were regulated by the Venda Labour Relations
Proclamation, 3 of 1991 (“the Proclamation”).
The Industrial
Tribunal of Venda (“the tribunal”) which was established in terms of
the Proclamation, was authorised
to determine disputes relating to alleged
unfair labour practices.
[2] In the court a quo the
appellants sought orders in the following terms:
“1. Calling upon the Respondents to show cause why the determination and/or proceedings of the tribunal given on or about the 9th May 1997 under Case Number IT 23/06/93 should not be reviewed and corrected or set aside; and
Calling upon the First Respondent,
the President of the said Tribunal, to dispense (sic) within 21 days of the
receipt of the notice
of motion to the Registrar of this Honourable Court the
record of such proceedings sought to be corrected [and] set aside together
with
any such reasons as [he] is by law required or obliged to give or make and to
notify the applicants that he has done so.”
Coetzee AJ dismissed
the application with costs but granted the appellants leave to appeal to this
Court.
[3] The application arose out of the dismissal of 180 employees
(173 of whom are appellants in this Court) by the second respondent during
January 1993. Some of the employees were dismissed for taking part in an
illegal strike and others for being absent from work without
leave. In June
1993 the Union and the dismissed workers brought an application before a
tribunal consisting of Advocates Nthabalala
and Mojapelo and Mr Netshifhefhe, an
attorney, for an order declaring the dismissals to be an unfair labour practice
and for reinstatement
of the employees. The second respondent raised a point
in limine to the effect that, in terms of the Proclamation, an
application for reinstatement was time-barred and that the employees were not
entitled to that form of relief. The tribunal decided the point in the second
respondent’s favour and thereafter the proceedings
were adjourned. They
resumed at a later date before a tribunal consisting only of Mojapelo (as
president) and Netshifhefhe. After
a lengthy hearing the tribunal eventually
made its determination on 9 May 1997. It held that the dismissals of the
striking workers
did not constitute an unfair labour practice but that the
dismissals of seven of the applicants who were absent without leave were
procedurally unfair. There was no express determination relating to the other
workers who had been dismissed for being absent without
leave but from the
reasons given it may be assumed that the tribunal considered that their
dismissals did not amount to an unfair
labour practice.
[4] The
application in the court a quo was based on two main grounds -
irregularities allegedly committed by the tribunal and the alleged bias of both
of its members.
In this Court counsel for the appellants restricted his
argument to the question of bias. He was correct in doing so for the alleged
irregularities cannot be properly adjudicated upon in the absence of the record
of the proceedings before the tribunal, a matter
which will be commented upon
later. The question of bias was dealt with in a superficial manner in the
founding affidavit which
was deposed to by Mr Gelebe. He stated that Mojapelo
and Netshifhefhe displayed bias during the hearing by failing to treat the
appellants’ attorney with the same courtesy and respect that they showed
towards the second respondent’s legal representative.
Gelebe went on to
say:
“At every opportunity available to them [Mojapelo and Netshifhefhe] endeavoured to show how ignorant [our attorney] was and how unsuitable he was in the conduct of our application. This belief was strengthened in us when on or about the 10th day of February 1997, Mycolens, Mutangwa and myself were sent by the Registrar of that Tribunal to pass on a message to Mr Netshifhefhe at his offices ...... Upon our arrival at Mr Netshifhefhe’s office and after passing on the message from the Registrar he turned to us and informed us that we had wasted money and time by employing an attorney of record who came from far away. He further stated that if he had handled our case he would have won it and in fact it would have been finalised much sooner than it took for the proceedings to finish in this matter. Naturally, we were taken aback by his attitude but as we did not want to question him we left his office and reported the matter to our attorney of record.”
[5] Both in this Court and
the court a quo it was only the second respondent who opposed the
application. The first respondent did not reply to the appellants’
allegations
nor did he intimate whether he or the tribunal abided by the
decision of the court. If the first respondent was aware of the application,
his silence was, to say the least, discourteous. It is possible, however, that
the first respondent did not know of the proceedings.
According to the return
of the deputy sheriff of Thohoyandou, the notice of motion was served on an
adult person (described as a
“security manager”) who was apparently
in control of the first respondent’s place of business at an unspecified
address in Thohoyandou. In the founding affidavit it was stated that the first
respondent’s “address for service is
c/o The Registrar, The
Industrial Court, Pretoria” which, counsel for the appellant appeared to
concede, was the place where
service should have been effected. It may be noted
that the notice of motion was directed to both Mojapelo and Netshifhefhe at
“c/o
Industrial Court, Pretoria” and was received by an official or
officials of that court (one of these was L Cloete, Security
Manager,
apparently the same person on whom service was effected in Thohoyandou). There
is nothing to indicate how the documents
were delivered to the Industrial Court
or that they were passed on to the members of the tribunal. It is only
necessary to add that
Netshifhefhe was not cited as a party to the proceedings.
In Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport
Commission 1982 (3) SA 654 (A) it was pointed out at 672E-F that in the
case of an application for the review of a decision of a statutory
body, the
notice of motion is to be directed and delivered to the chairman of the body in
his representative capacity and that there
is no need to cite the body itself.
In view of certain specific allegations of bias on the part of Netshifhefhe, it
might have been
desirable for the appellants to have cited him as a party to the
proceedings but there is no need to express a firm view on whether
this was
necessary. Despite the facts mentioned above, it will be assumed for the
purposes of the appeal that service was properly
effected on the first
respondent.
[6] At the commencement of the hearing in the court a
quo the attorney representing the second respondent informed the learned
judge that the record of the proceedings before the tribunal
was available at
the offices of the Industrial Court in Pretoria. He applied for a postponement,
coupled with a tender to pay the
costs occasioned thereby, to enable him to
place the record before the court. The application for a postponement was
opposed by
the appellants’ counsel and was refused. Consequently Coetzee
AJ had before him only the affidavits and the tribunal’s
reasons and on a
consideration of these documents he held that the appellants had not established
the grounds of review.
[7] In terms of rule 53 of the Uniform Rules of
Court (similar to the rule that applied in Venda at the time), the right to
require the
record of the proceedings of a body whose decision is taken on
review is primarily intended to operate for the benefit of the applicant
(see
Motaung v Mothiba NO 1975 (1) SA 618 (O) at 625F and Jockey Club of
South Africa v Forbes 1993 (1) SA 649 (A) at 660E-H). However, and
depending on the circumstances, a respondent should not be prevented from
placing the
record, or the relevant parts thereof, before a court simply because
the applicant does not do so. Moreover - and this is of particular
significance
in the present matter - an applicant who does not furnish the record to the
court runs the risk of not discharging the
onus, especially where the
allegations upon which it relies are put in issue.
[8] On the
appellants’ behalf it was argued in this Court that the second
respondent’s opposing affidavit was so concise
as to amount to little more
than a bare denial of the appellants’ allegations. Consequently it was
contended that we should
decide the appeal solely on the facts put forward by
the appellant and that the record of the proceedings was unnecessary. It is
true that Mr Nicholls, the deponent to the second respondent’s affidavit,
could hardly have expressed himself more economically.
However he denied all
the material allegations made by the appellants, save for those relating to what
Netshifhefhe was alleged
to have said on 10 February 1997, of which Nicholls had
no knowledge. With the exception of the last-mentioned occurrence, the
appellants’
allegations relating to bias or partiality lacked
particularity and the second respondent’s denial, without elaboration, was
sufficient to raise substantial disputes of fact. Without recourse to the
record of proceedings the disputes cannot be resolved
on the affidavits. The
result is that the appellants’ generalised allegations of bias have not
been established.
[9] The appellants’ counsel seemed to
recognise the difficulty with which his clients were faced and he directed most
of his argument
to what allegedly took place in Netshifhefhe’s office on
10 February 1997. He submitted that Netshifhefhe’s comments
were a clear
indication that at least one member of the tribunal was biased and he suggested
that the matter should be referred back
to the court a quo in the light
of the record which, he eventually conceded, should have been placed before that
court. Coetzee AJ, it should be noted,
did not deal with the aforesaid remarks
attributed to Netshifhefhe, which, in my view, is the only issue that warrants
further consideration.
[10] The test for apprehended bias is objective
and the onus of establishing it rests on the applicant (President of the
Republic of South Africa and Others v South African Rugby Football Union and
Others 1999 (4) SA 147 (CC) at 175 B-C, par 45). The existence of a
reasonable suspicion of bias satisfies the test (Moch v Nedtravel (Pty) Ltd
t/a American Express Travel Service 1996 (3) SA 1 (A) at 8H-I). It is
beyond question that members of the tribunal had to act impartially. It is,
moreover, not only
actual bias, but the outward appearance of bias, that may
vitiate the decision of a body such as the tribunal as justice must be
seen to
be done (see BTR Industries South Africa (Pty) Ltd and Others v Metal and
Allied Workers’ Union and Another 1992 (3) SA 673 (A) at
690A-695B).
[11] Whether the appellants have established a
disqualifying bias depends on what Netshifhefhe is alleged to have said to the
Union’s
representatives. The background to the specific occasion was the
general averment that members of the tribunal made it clear that
they regarded
the appellants’ attorney as incompetent and that they humiliated or
belittled him. This was denied by the second
respondent and does not, in the
circumstances of the case, provide assistance in determining whether
Netshifhefhe, in particular,
was biased. His extra curial criticism of the
appellants’ attorney to lay clients, if it occurred, is obviously to be
deplored.
But, however deplorable his conduct might have been, it does not
follow that he was biased against the appellants or that the appellants
should
reasonably have suspected that he was. It is clear that Netshifhefhe’s
remarks related to the first hearing before
the tribunal and its decision that
the claim for reinstatement could not be pursued because the application
therefor was made out
of time. Netshifhefhe seems to have implied that the
attorney concerned had failed to apply for reinstatement within the prescribed
time and that if he (Netshifhefhe) had represented the employees they would have
been entitled to claim reinstatement and that the
whole application would have
been disposed of more expeditiously. I doubt whether it is reasonable to read
more than this into the
extract from the founding affidavit, which I have quoted
in par 4. It may even be that Netshifhefhe’s statement indicated
that he
had a degree of sympathy towards the appellants and their predicament. Whatever
may be said about his remarks, however,
they cannot reasonably be construed as
an indication of bias against the appellants. It may also be of some
significance that after
the matter was reported to the appellants’
attorney nothing was said about it until after the tribunal’s
determination,
some three months later. It suffices to say, however, that the
appellants have not discharged the onus of establishing bias on the
part of
Netshifhefhe and it is not necessary to speculate on the possible reasons for
the attorney’s inactivity.
[12] The appeal is dismissed with
costs.
L S MELUNSKY
ACTING JUDGE OF APPEAL
CONCUR:
HEFER ADCJ)
HOWIE JA)
PLEWMAN
JA)
FARLAM AJA)
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