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REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO.: LCA 2/2014

DATE: 03 DECEMBER 2014

In the matter between:

PURITY MANGANESE (PTY) LTD...............................................................................APPELLANT

And

FERDINAND KAKOTIFIRST.....................................................................................RESPONDENT

KAHITIRE KENNETH HUMU N.O..........................................................SECOND RESPONDENT

THE LABOUR COMMISSIONER................................................................THIRD RESPONDENT

Neutral citation: Purity Manganese (Pty) Ltd v Kakoti (LCA 2/2014) [2014] NALCMD 51 (3 December 2014)

Coram: UEITELE, J

Heard: 31 October 2014

Delivered: 03 December 2014

Flynote: Labour law – Appeal – appeal against dismissal of application for rescission of arbitration award - the period within which an application for the rescission of an arbitrator’s award must be made must be computed with reference to the date on which the award was served on the parties-Arbitrator misdirected himself for computing period from date of hearing complaint.- Applicant failing to show reasonable prospects of success in the application.

Summary: The appellant appeals against the entire award made, on 16 December 2013, by the second respondent Mr Kahitire Kenneth Humu (the arbitrator), under s 89(1)(a) of the Labour Act, 2007.

Mr Ferdinand Kakoti (the first respondent) was employed by the appellant as a maintenance foreman. On 17 March 2010 Mr Kakoti was charged with misconduct and suspended from his employment. The charges against him are that he allegedly committed fraud and that he left the work place without permission.  On 20 March 2010 Kakoti’s employment with the appellant was terminated on grounds of alleged misconduct following a disciplinary hearing which was held on 20 March 2010. He appealed his dismissal but the appeal hearing never took off.

On 28 May 2010 Kakoti referred a dispute of unfair dismissal to the third respondent (the Labour Commissioner). On 07 June 2010 the Labour Commissioner designated, in terms of s 85(5) of the Labour Act, 2007 a certain Mr Sonnyboy Mwanawina to arbitrate the matter. The arbitration hearing was set down for 07 July 2010.  The arbitration hearing did not take place as scheduled and the reasons for the arbitration hearing not taking place on 07 July 2010 do not appear from the record that was placed before this court.

The record of proceedings in the arbitration proceedings is silent on what transpired between 07 July 2010 and 05 April 2011 in the matter of Kakoti and the appellant. On 05 April 2011 the Labour Commissioner designated Mr Kenneth Kahitire Humu to arbitrate the dispute between Kakoti and the appellant and also gave notice to both the appellant and Kakoti that the dispute will be heard on 19 April 2011 at the offices of the Labour Commissioner in Khomasdal. On 12 April 2011 Ms Annerrie Keulder of Pieter J de Beer acting for the appellant and a certain Mr Sakaria Simon of the Mine Workers Union of Namibia acting on behalf of Kakoti agreed that the hearing scheduled for 19 April 2011 be postponed to 23 May 2011. The record of arbitration proceedings is again silent as to what transpired on 23 May 2011.

On 26 July 2013 the arbitrator telephonically contacted the Human Resources Manager of the appellant a certain Mr Silas Iipumbu and enquiring from him (i.e. Iipumbu) whether he was aware of the fact that the matter between Kakoti and the appellant was set down for hearing on 26 July 2013. Mr Iipumbu informed the arbitrator that he was not aware of the hearing and that he had never received the Form LC 21 referral order and the Form LC 28 notice of conciliation meeting. The arbitrator then informed Mr Iipumbu that he will postpone the hearing to another date.  Iipumbu states that he was not informed as to which date the hearing would be postponed. On 23^rd September 2013, the arbitrator, at 09h30 again called Mr Iipumbu and enquired whether the appellant will be attending the hearing of the dispute between Kakoti and the appellant scheduled for 23 September 2013.

 

The arbitrator proceeded to hear Kakoti’s complaint of unfair dismissal in the absence of the appellant or its representative.  At the hearing on 23 September 2013 Kakoti testified and after hearing his evidence the arbitrator found that Kakoti was unfairly dismissed ordered the appellant to pay Kakoti an amount of N$ 160 000 and made an award to that effect. The award dated 08 November 2013 was faxed to the appellant on the same date (i.e. on 08 November 2013). On 03 December 2013 the appellant lodged an application for the rescission of the award of the arbitrator dated 08 November 2013. On 17 December 2013 the arbitrator handed down his ruling in respect of the application for the rescission of the order of 08 November 2013 in the ruling he dismissed the application for the rescission of the order of 08 November 2013. It is against the dismissal of the application for the rescission of  that ruling that the appellant now appeals.

 

Held that Section 88 of the Act gives an arbitrator the power to, vary or rescind an arbitration award, if it was erroneously sought or erroneously made in the absence of any party affected by that award; or if it is ambiguous or contains an obvious error or omission, but only to the extent of that ambiguity, error or omission; or if that award was made as a result of a mistake common to the parties to the proceedings.  A default is only willful if the defaulter knows what he is doing and is a free agent and is willing that the consequences of his default should follow.

 

Held, further that the period within which an application for the rescission of an arbitrator’s award must be made must be computed with reference to the date on which the award was served on the parties. Since the award was served on 08 November 2013 the arbitrator misdirected himself when he computed the period from 23 September 2013 and the dismissal of the application for rescission on the basis that the application for rescission was filed out of time must accordingly be set aside and is hereby set it aside.

 

Held, furthermore that the applicant through its functionaries knew that the conciliation / arbitration hearing was scheduled for 23 September 2013 and despite that knowledge deliberately, consciously and freely took the decision not to attend the hearing irrespective of the legal consequences that may follow. The appellant has no reasonable explanation for its default.

 

Held, furthermore that the finding by the chairperson of the internal disciplinary hearing that ‘the fact that Kakoti has a final warning for (9) month on similar charges that he was absent without permission.  This court comes to the conclusion that he ‘is guilty as charged’ is irrational and absurd. 

 

Held furthermore, that chairperson of the internal disciplinary hearing failed to understand the case which was presented by Kakoti and the weight to be accorded to the explanation provided by Kakoti and his witnesses, the chairperson internal of the disciplinary hearing failed in his basic duty of properly determining the evidence before him. In fact the chairperson of the internal disciplinary misunderstood the case that was before him.

 

Held further, that the appellant has not made out a prima facie case that it had a valid reason to dismiss Mr. Kakoti and this court holds that the appellant has not made out a defence to that part of the complaint. Apart from the absence of a valid reason the disciplinary hearing was also characterized by a number of procedural irregularities, rendering the hearing procedurally unfair.

ORDER

 

1. The appeal succeeds in respect of the arbitrator’s dismissal of the appellant’s application to rescind the award made by the arbitrator Mr. Humu, on 08 November 2013 is set aside.

 

2. The determination and award made by the arbitrator, Mr. Humu, on 08 November 2013 is altered to read:

 

2.1       The dismissal of the respondent, Mr. Kakoti, was procedurally and substantively unfair.

 

2.2         The appellant, Purity Manganese, is ordered to pay Kakoti the salary and benefits he was earning at the time he was dismissed, from 20 March 2010 to 08 November 2013, including bonuses, salary increments/adjustments and any other benefits respondent would have been entitled to within the period of 20 March 2010 to 08 November 2013.

 

2.3       In terms of s 87(2) of the Act, appellant is ordered to pay interest on the amounts mentioned in paragraph 2.2 of this order at the rate of 20% per annum from 08 November 2013 until the date of payment.

 

3 I make no order as to costs.

JUDGMENT

 

UEITELE, J

Introduction and Background

[1] The appellant appeals against the entire award made, on 16 December 2013, by the second respondent Mr Kahitire Kenneth Humu (I will in this judgment, for ease of reference, refer to him as the arbitrator), under s 89(1)(a) of the Labour Act, 2007^[1].

 

[2] The background to this matter is briefly as follows. Mr Ferdinand Kakoti the first respondent, I will in this judgment, for ease of reference, refer to him as Kakoti) was employed by the appellant as a maintenance foreman. On 20 March 2010 Kakoti’s employment with the appellant was terminated on grounds of alleged misconduct following a disciplinary hearing which was held on 20 March 2010.

 

[3] On 28 May 2010 Kakoti referred a dispute of unfair dismissal to the third respondent (I will in this judgment, for ease of reference, refer to the third respondent as the Labour Commissioner). On 07 June 2010 the Labour Commissioner designated, in terms of s 85(5) of the Labour Act, 2007 a certain Mr Sonnyboy Mwanawina to arbitrate the matter. The arbitration hearing was set down for 07 July 2010.  The arbitration hearing did not take place as scheduled and the reasons for the arbitration hearing not taking place on 07 July 2010 do not appear from the record that was placed before me.

 

[4] The record of proceedings in the arbitration proceedings is silent on what transpired between 07 July 2010 and 05 April 2011 in the matter of Kakoti and the appellant. On 05 April 2011 the Labour Commissioner designated Mr Kenneth Kahitire Humu to arbitrate the dispute between Kakoti and the appellant and also gave notice to both the appellant and Kakoti that the dispute will be heard on 19 April 2011 at the offices of the Labour Commissioner in Khomasdal. On 12 April 2011 Ms Annerrie Keulder of Pieter J de Beer acting for the appellant and a certain Mr Sakaria Simon of the Mine Workers Union of Namibia acting on behalf of Kakoti agreed that the hearing scheduled for 19 April 2011 be postponed to 23 May 2011. The record of arbitration proceedings is again silent as to what transpired on 23 May 2011.

 

[5] On 26 July 2013 the arbitrator telephonically contacted the Human Resources Manager of the appellant a certain Mr Silas Iipumbu and enquired from him (i.e. Iipumbu) whether he was aware of the fact that the matter between Kakoti and the appellant was set down for hearing on 26 July 2013. Mr Iipumbu informed the arbitrator that he was not aware of the hearing and that he had never received the Form LC 21 referral order and the Form LC 28 notice of conciliation meeting. The arbitrator then informed Mr Iipumbu that he will postpone the hearing to another date.  Iipumbu states that he was not informed as to which date the hearing would be postponed. On 23^rd September 2013, the arbitrator, at 09h30 again called Mr Iipumbu and enquired whether the appellant will be attending the hearing of the dispute between Kakoti and the appellant scheduled for 23 September 2013. I find it appropriate to quote from the appellant’s affidavit in the rescission application as to what the arbitrator said to Mr Iipumbu and what Mr Iipumbu said to the arbitrator. Mr Iipumbu said:

 

‘17.9    On 23 September 2013, the arbitrator once again phoned me and enquired whether I was coming to the case of the respondent as same was apparently set down for that day. This came as a surprise as the applicant was never served with a Form LC 28 notice of set down and did not receive any verbal or written indication that the matter would be set down for 23 September 2013. I accordingly informed the arbitrator, once again, that I still did not receive the Form LC 21 referral of dispute and that I have not received any form of notice for the hearing of the matter on 23 September 2013 or any other date.

 

17.10   The Arbitrator then informed me that he will not postpone the matter again as it was the second time that “this” has happened and that we can take the matter further after that. I can only assume that he was referring to the applicant not being present at the hearing, however, as I stated before, the applicant never knew that it had to appear at the Office of the Labour Commissioner on 26 July 2013 or on 23 September 2013. In amplification to this, the applicant was never served with a form LC 21 referral of dispute or any notice of set down as stated previously.

 

17.11   The arbitrator’s indication that I have been informed on 26 July 2013 to be present for the hearing to take of place on 23 September 2013 is unfounded and simply not correct.

 

17.12 Following the arbitrator’s indication that he will not postpone the matter, notwithstanding what I have indicated before, I informed him that I am not prepared for the hearing as a result of what has been stated before and informed him that I can therefore not attend the arbitration proceedings before having had sufficient time to prepare. I also informed him that he can continue with the proceedings if he is not inclined to postpone the matter in order for me to prepare sufficiently.’

 

[6] The arbitrator proceeded to hear Kakoti’s complaint of unfair dismissal in the absence of the appellant or its representative.  At the hearing on 23 September 2013 Kakoti testified and after hearing his evidence the arbitrator found that Kakoti was unfairly dismissed and ordered the appellant to pay Kakoti an amount of N$ 160 000. The arbitrator amongst others said the following (I quote verbatim from the award):

 

‘Preliminary issues

 

[2] …

[3] The respondent was absent despite having been informed on the 17^th July 2013 to come to the hearing which was set for 26^th July 2013.

 

[4] On the date of the hearing respondent was called in the presence of the applicant and his representative and Mr. Silas Ipumbu was informed to be present for 23^rd September 2013 but he failed to show up.

 

[5] On the 23^rd September 2013 at around 09h30 he was also called but he was not willing to come to the meeting.

 

[6] Therefore conciliation was not possible, I decided to proceed with arbitration.’

Analysis of Evidence and Arguments

[18] Since the respondent decided not to attend the hearing, I am left with no choice but to accept the version of the applicant to be true and correct since it went unchallenged.

Award

[19] Having said the above I now decide to order as follows:

· The respondent to re-instate the applicant in the position he held prior to his dismissal or in a comparable position with effect from 22^nd November 2013.

 

· The respondent to pay applicants’ salary from the date of dismissal to the date of finalization of this matter, which is:

20^th March 2010 to 08^th November 2013=

20 Months x N$8000.00 =N$160 000.00

Total due to the applicant: N$ 160 000.00

 

· This amount must be paid over to the applicant on or before 09^th December 2013 at 10h00 at the Office of the Labour Commissioner in Windhoek.’

 

[7] The above mentioned award is dated 08 November 2013 and from the record of proceedings in the arbitration proceedings it appears that the award was faxed to the appellant on the same date (i.e. on 08 November 2013). On 3 December 2013 the appellant lodged an application for the rescission of the award of the arbitrator dated 8 November 2013. On 17 December 2013 the arbitrator handed down his ruling in respect of the application for the rescission of the order of 08 November 2013, in the ruling he dismissed the application for the rescission of the order of 08 November 2013. The arbitrator said the following when he dismissed the application (I again quote verbatim what the arbitrator said):

 

‘1         KINDLY TAKE NOTICE that the arbitrator, Mr K K Humu did receive your written application for rescission of the award handed down on the 23^rd September 2013.

 

2          TAKE FURTHER NOTICE that I have carefully read the accompanying affidavit of Mr Silas Iipumbu attached to your application.

 

3          HOWEVER, must advice that you had ample time to file your application within 30 days from date of issue but you failed to do so.

 

4          THEREFORE, your application is out of time and could not be entertained.

 

5          THEREFORE YOUR APPLICATION IS HEREBY DISMISSED

 

6          The arbitration award handed down on the 23^rd September 2013 remains in force.’

The Appeal

[8] It is against the order quoted above in paragraph [7] that the current appeal lies. The appellant noted its appeal on 13 January 2014. My reading of the appellant’s notice of appeal is that, although the appellant states that it is appealing against the ‘entire arbitration award/ruling by the arbitrator Kahitire Kenneth Humu on 16 December 2013’ the appellant seems to be also asking this Court to pronounce itself against the order of the arbitrator made in its absence on 08 November 2013. I say so for the following reasons. In the notice of appeal the appellant states that it will ask this Court for an order in terms of the following:

 

‘A) That the arbitrator’s award and sanction as per paragraphs 1, 2, 3 and 4 of his award be set aside;

 

B) That the appeal is upheld;

 

C) Costs in the event of any vexatious and/or frivolous opposition to this appeal.’

 

[9] The appellant furthermore advances the following as the grounds on which the appeal is based:

 

‘1        No reasonable arbitrator could not have found on the facts appearing from the record, inter alia, that:

 

1.1              That the LC 21 form had been properly served on the appellant and that proof of service had been served properly on the appellant, and filed as contemplated in Rule 6,7 and 14 of the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner (The ConArb Rules).

 

1.2          That having regard to the LC 45 form, signed by the arbitrator himself, that this form could have possibly been dated on any other date, save 8 November 2013.

1.3          That having regard to the first and last page of the arbitration award itself, which is attached to the aforementioned LC 45 form, that the arbitration award was not signed by the arbitrator himself and date stamped on 8 November 2013 with the official date stamp of the Office of the Labour Commissioner.

 

1.4          That having regard to the first and second page of the arbitration award that it is not clearly stated that the date of the hearing was on 23 September 2013 and that the date of delivery of the award was on 8 November 2013.

 

1.5          That after specifically finding, in his award at paragraph 2 thereof, that the matter was heard on 23 September 2013 but that the award could not have been issued earlier because he was on sick leave and because of technical issues with his computing hardware, that the award was delivered on 23 September 2013 and not 8 November 2013.

 

1.6          That in any event, the appellant could possibly have had knowledge of the award on any other date prior to 8 November 2013.

 

2. No reasonable arbitrator (after a careful reading) could have found on the facts as stated in Mr  Silas Iipumbu’s sworn affidavit (inclusive of attached annexures) deposed to on 2 December 2013 and confirmed under oath by Asaf Eretz that, the appellant had not proved on a balance of probabilities that:

 

2.1          In terms of section 88 of the Act, there were grounds to grant the application and specifically that, the award sought to be rescinded:

 

2.1.1      was erroneously sought or erroneously made in the absence of any party affected by that award and/or;

2.1.2      is ambiguous or contains an obvious error or omission, but only to the extent of that ambiguity, error or omission and/or;

2.1.3      was made as a result of a mistake common to the parties to the proceedings.

 

2.2        In any event the appellant showed on the uncontested evidence that it was never served with a referral of the erstwhile dispute as contemplated in Rule 14 of the ConArb Rules. The appellant therefore has never been given notice of the dispute and has absolutely no idea of the grounds that the complaint is based upon.

 

2.3        The appellant’s uncontested evidence also proves that it was never served with, and did not receive a Notice of the Conciliation and/or Arbitration Hearing on Form LC28 as required in Rule 15 of ConArb Rules.

 

2.4        The evidence also shows that the arbitrator was made aware of this on 26 July 2013, and therefore at all material times knew that the continuation of the proceedings would be irregular, yet he failed to act accordingly and nevertheless proceeded with the matter.

 

2.5        The uncontested evidence also shows, that after postponing the erstwhile matter on 26 July 2013, the appellant did not receive any communication (written or verbal) from the arbitrator in respect to the dates upon which the hearing would commence, nor did the appellant receive a Notice of the Conciliation and/or Arbitration Hearing on Form LC28 as required in Rule 15 of the ConArb Rules.

 

2.6        The uncontested evidence also shows that the arbitrator erred in finding that the appellant, on 17 July 2013, had been informed to attend to the arbitration hearing. Mr Silas Iipumbu states in his affidavit that this is simply not correct and his evidence on this score is not contested.

 

2.7        The uncontested evidence once again shows that the arbitrator erred in finding that the appellant had been informed on 26 July 2013 to attend to an arbitration hearing on 23 September 2013. There is simply no evidence at all to support this.

 

2.8        The arbitrator also erred in finding on the uncontested evidence at his disposal that the respondent’s domestic disciplinary hearing had not been conducted according to fair procedure, and for a valid and fair reason and specifically that the trust relationship between the parties had not broken down irretrievably, and accordingly, that the respondent was fairly dismissed in terms of the appellant’s company policy.

2.9        The respondent also failed to plead and prove the quantum of his damages and no evidence in this regard was ever placed before the arbitrator, upon which the arbitrator could reasonably, in the erstwhile hearing, have found that the respondent was entitled to be paid damages in the amount of N$160 000.’

 

[10] The notice of appeal together with the grounds of appeal is convoluted and makes difficult reading. As I have indicated above the appellant in its notice of appeal simply appeals against the award/ruling made by the arbitrator on 16 December 2013, but the appellant is asking this Court to set aside the arbitrator’s award (without setting out which award) and sanction as per paragraphs 1, 2, 3 and 4 (I presume the appellant is referring to the award of 08 November 2013). My assumption is based on the fact that the ruling of 16 December 2013 makes no award and imposes no sanction. If my assumption is correct that the appellant wants this Court to set aside the award made in paragraphs 1, 2, 3 and 4 of the order of 08 November 2013, then this Court cannot grant that order because there is no appeal against that order.

 

[11] Mr Jones who appeared for the appellant in his arguments further argued that the date of hearing (i.e. the complaint of unfair dismissal) was on 23 September 2013.  The arbitration award is date stamped 08 November 2013, approximately one and a half months after the arbitration took place. He further submitted that it is clear on the face of the award itself that it was delivered outside of the thirty day period mandated in the Act and that the award thus amounted to a nullity.  Mr Jones relied on the case of The International University of Management v Torbitt[2] for that proposition. The argument of Jones–Ravenscroft cannot succeed for two reasons firstly the alleged nullity of the order is not a ground on which the appellant appealed against the award of the arbitrator. In the case of Standard Bank Namibia v Grace[3] Henning, AJ struck an appeal from the roll because the notice of appeal amongst other things failed to specify the grounds of appeal, he said:

‘[10] The Constitution promises the public a judiciary which is effective. In practice this demands that judicial officers hear and determine disputes. In order to guide a hearing and to stimulate the discussion the judicial officer must prepare in advance. Should they not do so, the hearing is sterile — counsel read their heads of argument without much enthusiasm and the judicial officer listens. He/she could just as well have remained in chambers and read the papers. The hearing is a charade. When it gets to writing a judgment the judicial officer is what an American Judge called 'a lost soul'. However, preparation is a time- consuming exercise. The judicial officer needs all the help he could obtain from the parties. To control a record of some 400 pages is time-consuming. To do so without knowing exactly where to look for what, is in addition frustrating.’

[12] The second reason why the submission of Jones must fail is that the matter of The International University of Management v Torbitt was considered in the case of Life Office Namibia Ltd T/A Namlife v Amakali[4].In the latter matter Smuts, J said, ( I must point out that I fully endorse Smuts, J’s reasoning) the following:

‘[15] In the course of his reasoning, Parker, AJ referred to the legislative purpose behind this section and concluded that it was that arbitration awards are to be issued expeditiously.  That is entirely correct.  He points out that the use of the term “must” casts an obligation upon an arbitrator to deliver an award in that 30 days period.  He concludes that the use of the term “must” is mandatory and peremptory and not permissive or directory.  I respectfully agree with all of those sentiments.  But I do not agree with the consequence which he found followed upon non-compliance with this statutory injunction of delivering the award within 30 days.  The consequence which he visits upon non-compliance with s 86(18) is invalidity of an award delivered beyond the expiration of that period. 

[16] The statutory intention is plainly to ensure that arbitration awards are delivered expeditiously. But according to Parker, AJ the consequence of failing to do so means that the award is a nullity if an award is delivered a day, a week, a month or five months out of time.  That consequence certainly could not, in my respectful view, ever have been the statutory intention.  Parker, AJ does not deal with the consequences of a declaration of invalidity of the award. What about the referral and the proceedings themselves? The most benevolent consequence would be for the arbitration proceedings to commence again de novo. But that could never accord with the statutory intention.  This would result in considerable further expense and delay for the parties and an entirely unnecessary duplication of work for a different arbitrator.  Another consequence which could arise would be that the complainant would need to refer a dispute afresh.  That would in most instance result in the referral being out of time and the complainant being non-suited for that reason, even though he or she would have been entirely innocent in the cause of the delay which occurred in issuing the award.

[17] In either event, a considerable further delay would result and the very real spectre of potential injustice in the event of a referral being time barred as a consequence. Furthermore, there would be uncertainty, extra expense and entirely unnecessary duplication of effort on the part of the Labour Commissioner’s office.  These consequences could never accord with the statutory intention behind s 86(18). 

[18] Clearly the evil to be addressed in s 86(18) was the problem of delays in the handing down of awards. Hence the need to require arbitrators to deliver their awards promptly in mandatory terms. But to visit such a delay with a late award being a nullity in my view most certainly undermines that statutory intention and certainly does not follow from the injunction to deliver the award within 30 days. The consequence of non-compliance with mandatory provisions is to be determined within the context of the statutory provision and its intention construed in that context.  This has been addressed in a different setting with regard to the completion of a referral form in Auto Exec CC v Van Wyk and Another (LC 150/2013) [2014] NALCMD 16 (16 April 2014) and Purity Manganese (Pty) Ltd v Katjivena (LC 86/2012) [2014] NALCMD 10 (26 February 2014).

[19] Whilst I agree with Parker, AJ that the legislature intended s 86(18) to be binding and mandatory upon arbitrators, it would not in my view follow that an award given beyond that time period would be visited with invalidity as a consequence.  On the contrary, it would seem that the legislature intended other remedies to be available to parties where an award is late.  Either of the parties to the dispute could for instance bring an application to this court to compel the arbitrator to hand down the award by way of a mandamus and possibly seek an appropriate costs order.  The Labour Commissioner would also appear to have standing to compel the arbitrator to do so by way of a mandamus if the matter were reported to him or come to his attention.  That would be the nature of a remedy available to a party and the Labour Commissioner as a consequence of non-compliance on the part of an arbitrator with the statutory injunction to hand down an award within the 30 day period prescribed by s 86(18).

 

[20] It would follow that the approach in IUM v Torbitt is in my view clearly wrong and I decline to follow it.’

 

The dismissal of the rescission application

 

[13] As regards the ruling/award of 16 December 2013 Mr Jones submitted that the arbitrator misdirected himself when he dismissed the application for rescission on the basis that the application was brought out of time. He further submitted that ‘the arbitrator despite alluding to the fact that he seemingly considered the merits “carefully” did not provide any reason for dismissing the rescission application. He argued that the arbitrator was enjoined to act fairly and reasonably which he did not and the ruling dismissing the application for rescission must be set aside.  I have no difficulty in accepting this submission by Mr Jones. As I have indicated above in the introductory part of this judgment the award by the arbitrator is dated 08 November 2013 and is date stamped that day and it is also on that date that it was transmitted to the appellant.

[14] Section 88 of the Labour Act, 2007 provides as follows:

‘88       Variation and rescission of awards

An arbitrator who has made an award in terms of section 86(15) may vary or rescind the award, at the arbitrator's instance, within 30 days after service of the award, or on the application of any party made within 30 days after service of the award, if-

 

(a) it was erroneously sought or erroneously made in the absence of any party affected by that award;

 

(b) it is ambiguous or contains an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

 

(c) it was made as a result of a mistake common to the parties to the proceedings.’

It is thus clear that the computing of the period within which an application for the rescission of an arbitrator’s award must be made with reference to the date on which the award was served on the parties. Since the award was served on 08 November 2013 the arbitrator misdirected himself when he computed the period from 23 September 2013 and the dismissal of the application for rescission on the basis that it was brought out of time must accordingly be set aside and I hereby set it aside.

 

[15] Having set aside the dismissal of the application to rescind the award made by the arbitrator on 08 November 2014 the ordinary course would be to refer the matter back to the Commissioner for him to appoint another arbitrator to hear the application de novo. This matter has its origins in the letter of 17 March 2010 notifying Kakoti that he is suspended and of a disciplinary enquiry (scheduled for 19 March 2010) against himself. Four years down the line, the matter is still in our courts. Imagine the delay if I were to send this matter back to start de novo before another arbitrator, possibly another appeal to the Labour Court.  I agree with Mainga, JA when he said the ‘back and forth of dispute resolutions defeats the purpose of resolving disputes expeditiously.’[5]  It is my view that unless the arbitrator misconducted himself/herself (see s 89(5) of the Act) in conducting the proceedings, the present is a proper case for the this Court to determine the dispute itself in terms of s 89(10)(a). Both Mr. Jones for the appellant  and Mr. Hengari for Kakoti agree that this court determine the dispute. I will therefore proceed to consider the application for the rescission of the arbitrator’s award granted on 08 November 2013.

 

The rescission application

 

[16] Section 88 of the Act gives an arbitrator the power to, vary or rescind an arbitration award, if it was erroneously sought or erroneously made in the absence of any party affected by that award; or if it is ambiguous or contains an obvious error or omission, but only to the extent of that ambiguity, error or omission; or if that award was made as a result of a mistake common to the parties to the proceedings. Parker C argues that the provisions of s 88 are in material respects similar to the provisions of rule 44 of the High Court Rules (repealed and now rule 103).

[17] In addition to the provisions of s 88 of the Act, this Court is, under the common law, empowered to rescind judgments obtained on default of appearance, on sufficient cause shown of any party affected thereby. The approach to be followed in matters where the applicant seeks to rescind a judgment obtained on default of appearance is encapsulated in various decisions by the High Court. For present purposes I refer to the judgment of Leweis v Sampoio[6]  where Strydom, CJ said the following:

 

'An application for rescission is never simply an enquiry whether or not to penalise a party for his failure to follow the rules and procedures laid down for civil proceedings in our courts. The question is, rather, whether or not the explanation for the default and any accompanying conduct by the defaulter, be it willful or negligent or otherwise, gives rise to the probable inference that there is no bona fide defence and hence that the application for rescission is not bona fide.'

 

[18] In De Wet and Others v Western Bank Ltd [7]Trengrove, AJA, as he then was, set out the provisions of our common law relating to the rescission of judgments as follows:

 

'Thus, under common law the Courts of Holland were, generally speaking, empowered to rescind judgments obtained on default of appearance, on sufficient cause shown. This power was entrusted to the discretion of the Courts. Although no rigid limits were set as to the circumstances which constituted sufficient cause . . . the Courts nevertheless laid down certain general principles, for themselves, to guide them in the exercise of their discretion. Broadly speaking, the exercise of the Court's discretionary power appears to have been influenced by considerations of justice and fairness, having regard to all the facts and circumstances of the particular case. The onus of showing the existence of sufficient cause for relief was on the applicant in each case, and he had to satisfy the Court, inter alia, that there was some reasonably satisfactory explanation why the judgment was allowed to go by default. It follows from what I have said that the Court's discretion under the common law extended beyond, and was not limited to, the grounds provided for in Rules 31 and 42(1), and those specifically mentioned in the Childerley case. Those grounds do not, for example, cover the case of a litigant, or his legal representative, whose default is due to unforeseen circumstances beyond his control, such as sudden illness, or some other misadventure; one can envisage many situations in which both logic and common sense would dictate that a defaulting party should, as a matter of justice and fairness, be afforded relief.'

 

The appellant’s reasons for not attending the conciliation/ arbitration proceedings

 

[19] I will now proceed to evaluate the reasons advanced by the appellant for its default to appear at the conciliation/arbitration hearing with a view to determine whether or not the explanation for the default and any accompanying conduct by the appellant, be it willful or negligent or otherwise, gives rise to the probable inference that there is no bona fide defence.

 

[20] Mr. Silas Iipumbu, the appellant’s Human Resources Manager, deposed to the affidavit in support of the appellant’s application for the rescission of the arbitrator’s award made on 08 November 2008.  Mr. Iipumbu alleges that the reason why the appellant did not appear at the conciliation / arbitration hearing is because the appellant was not served with a Form LC 21 complaint and did also not receive a notice of the conciliation /arbitration hearing as required by rule 15 the Rules[8].  I have, below, in detail and verbatim quoted the explanation advanced on behalf of the appellant for its default.

 

‘Good cause

 

Explanation of default and/or mistake

 

[17.1]   No Form LC 21 referral of dispute was ever served on the applicant, either before or during the course of my employment with the applicant [i.e. the current appellant]. I also refer to the Mr. Eretz’s confirmatory affidavit in this regard. This follows that the respondent never properly referred his dispute to the Office of the Labour Commissioner, as he did not comply with Rule 14 of the Rules which clearly requires of a referring party to not only serve the Form LC 21, but provide proof to the Labour Commissioner on Form LG 36 and under oath that he had done so. The applicant [i.e. the current appellant] has to date, not receive a Form LC 21 referral form or any form of proof that same had been served on it.

 

[17.2]   The applicant never received a notice of conciliation meeting and/or arbitration hearing on Form LC 28 as required by Rule 15 of the or any other form and/or document which may have served as of notice that the matter would be set down on  a certain date . As a result the applicant and myself as the Human Resources Manager was totally unaware of the matter.

 

[17.3]   On 26 July 2013, for the first time, the respondent’s [i.e. Kakoti] name and this matter came to knowledge. I was contacted by Mr. Humu, the arbitrator, on 26 July 2013, when he enquired from me as to whether I was aware of the case of Mr. Kakoti and that it was set down for the said date of 26 July 2013. I categorically stated and informed him that I was not aware of the matter or that it had been set down on the said date. I also specifically informed him that I have never received a Form LC21 referral of despite for the matter of Mr. Kakoti, nor did I receive any Form LC28 notice of conciliation meeting or arbitration hearing and/or any other form of notice of set down.

 

[17.4]   The arbitrator then informed me that he did not want to assume that the applicant did not show up to the proceedings on purpose and informed me that he will postpone the matter. The arbitrator did however not inform me of any further and/or future date to which the matter will be postponed and I understand that he will provide the applicant and the respondent with a new notice of set down, or at least a written indication as to the date to be set for the hearing of the matter.

 

[17.5] …

 

[17.8] The arbitrator’s indication that I have been informed on 17 July 2013 to be present for the hearing to take place on 26 July 2013 is thereof simply not correct.

 

[17.9] On 23 September 2013, the arbitrator once again phoned me and enquired whether I was coming to the case of the respondent as same was apparently set down for that day. This came as a surprise as the applicant was never served with a Form LC28 notice of set down and did not receive any verbal or written indication that the matter would be set down for 23 September 2013. I accordingly informed the arbitrator, once again, that I still have not receive the Form LC21 referral of dispute and that I have not received any form of notice for the hearing of the matter on 23 September 2013 or any other date.

 

[17.10] The Arbitrator then informed me that he will not postpone the matter again as it was the second time that “this” has happened and that we can take the matter further after that. I can only assume that he was referring to the applicant not being present at the hearing, however, as I stated before, the applicant never knew that it had to appear at the Office of the Labour Commissioner on 26 July 2013 or on 23 September 2013. In amplification to this, the applicant was never served with a form LC21 referral of dispute or any notice of set down as stated previously.

 

[17.11] The arbitrator’s indication that I have been informed on 26 July 2013 to be present for the hearing to take of place on 23 September 2013 is unfounded and simply not correct.

 

[17.12] Following the arbitrator’s indication that he will not postpone the matter, notwithstanding what I have indicated before, I informed him that I am not prepared for the hearing as a result of what has been stated before and informed him that I can therefore not attend the arbitration proceedings before having had sufficient time to prepare. I also informed him that he can continue with the proceedings if he is not inclined to postpone the matter in order for me to prepare sufficiently.’ I have italicized and underlined certain portions of the quotation for emphasis.

 

[21] I must state that I find some of the allegations by Mr. Iipumbu to be improbable and bordering on misleading the court. The allegations I find improbable and bordering on misleading the court are the allegations that:

 

(a) The Form LC 21 referral of dispute was never served on the applicant, either before or during the course of Mr. Iipumbu’s employment with the appellant;

 

(b) On 26 July 2013, for the first time, Mr. Kakoti’s name and this matter came to knowledge of the appellant.

 

(c) The appellant was never served with a form LC21 referral of dispute or any notice of set down.

 

I say so for the following reasons. The record of proceedings under case number CRWK 409-10 filed by the appellant reveals that there is:

(i) a duly completed Referral of Dispute For Conciliation or Arbitration Form (Form LC 21) on the record,

 

(ii) an affidavit by Sakaria Simon, (who, on behalf of Kakoti referred the dispute to the Labour Commissioner) that he served certain documents (although the affidavit omits to mention the nature of the documents) on  the appellant;

 

(iii) a designation of Arbitrator (Form LC 27 dated 07 June 2010) addressed to the appellant and faxed to it at fax number 061 253784;

 

(iv) on 21 June 2010 Ms. Annerie Keulder (of the Law Firm Pieter J de Beer ) acting on behalf of the appellant applied to the Labour Commissioner to represent the appellant at the arbitration hearing scheduled for 07 July 2010;

 

(v) a second designation of Arbitrator (Form LC 27 dated 05 April 2011) addressed to the appellant and faxed to it at fax number 061 253784;

 

(vi) an agreement dated 12 April 2011 to postpone the conciliation/arbitration hearing  which  was scheduled for 19 April 2011 to 23 May 2011.

 

In view of the presence of the above documents on the record and the fact that it instructed legal practitioners to defend it at the conciliation / arbitration hearing, the inescapable conclusion is that the appellant must have been and was aware of the complaint referred to the Labour Commissioner by Kakoti.

 

[22] On the version of Mr. Iipumbu, he (Iipumbu) was called twice by the arbitrator, first on the 26^th of July 2013 and second time on the 23^rd September 2013 by the arbitrator and asked whether he was not attending the arbitration hearing, his reply was that he was not served with a Referral Form (Form LC 21) and Notice of Hearing (Form LC 28). When, on 23 September 2013 the arbitrator indicated that he was not going to postpone the conciliation/arbitration hearing for the second time Mr.  Iipumbu indicted to the arbitrator that the arbitrator can continue with the proceedings.  I am of the view that Mr. Iipumbu’s attitude is clear demonstration of the disdain he has for the conciliation and arbitration proceedings and that he was also not entirely truthful when he said that the appellant was not serve with a referral form. In the matter of Hainard v Est Dewes[9] De Villiers, JP said that ‘a default is only willful if the defaulter knows what he is doing and is a free agent and is willing that the consequences of his default should follow.’ In the matter of Maujean t/a Audio Video Agencies v Standard Bank of SA Ltd[10]  King, J said the following:

‘…. 'Wilful' has several meanings; The Oxford English Dictionary gives no less than five. In the legal lexicon two of these meanings are habitually employed; the one connotes consciousness and intention; the other has an additional ingredient, a perverseness or absence of regard to reason.  More specifically in the context of a default judgment 'wilful' connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation for this conduct might be. See in this connection Kouligas & Spanoudis Properties (Pty) Ltd v Boland Bank Bpk 1987 (2) SA 414 (O) at 417 and authorities there cited. In other words the additional element of perverseness or obstinacy is not required.’

 

I have thus come to the conclusion that the appellant through its functionaries knew of that the conciliation / arbitration hearing was scheduled for 23 September 2013 and despite that knowledge deliberately, consciously and freely took the decision not to attend the hearing irrespective of the legal consequences that may follow. The appellant in my view has no reasonable explanation for its default.

 

The existence of a bona fide defence or prospects of success

[23] Despite my finding that the appellant does not have a reasonable explanation for its failure to attend the conciliation/arbitration proceedings I will proceed to evaluate the nature of its defence. I will again in detail quote what the appellant say with regard to its defence. Mr. Iipumbu said the following:

 

[22] I refer to the applicants’ disciplinary code which is well known to the respondent. It is evident that the respondent intended to defraud the applicant when he opted not to sign out his clock card as is required practice of the applicant.

 

[23] Allegations to the effect that the respondent was unfairly dismissed are blatantly untrue.

 

[24] There can be no other explanation for the ruling and/or award in the respondent’s favour, other than the fact that the arbitrator was misled by the respondent. I doubt that the respondent testified, under oath, to the full extent of what is reflected in the summaries of the disciplinary hearing. Had the arbitrator heard this as evidence, then he could have made no other ruling than that the respondent was dismissed for a fair and valid reason and by way of a fair procedure.

 

[25] …

 

[26] There can be no doubt that the sanction of dismissal was the appropriate sanction in the circumstances. As a consequence the applicant has strong prospects of success in the arbitration.’

 

[24] Mr. Kakoti was, on 17 March 2010 charged with misconduct and suspended from his employment. the charges against him are that he allegedly committed fraud and that he left the work place without permission.  After a disciplinary hearing Kakoti was found guilty and dismissed from his employment.  He appealed his dismissal but the appeal hearing never took off. At the disciplinary hearing the appellant led two witnesses a certain Mr. Bennie Engelbrecght and a certain Mr. George Garab.  Mr. Kakoti called two witnesses a certain Mr. Stephanus Heita (the senior Human Resources Manager of appellant) and a certain Andreas Kambonde (a security guard) to testify on his behalf. The evidence of Mr. Bennie Engelbrecght was to the effect that on 15 March 2010 he left the mine and Mr. Kakoti was at the mine. Mr. Engelbrecght testified that he saw Kakoti and personally spoke to Kakoti, at around 10H00 he left the mine for home and at about 12H00 a certain George Garab phoned him (Engelbrecght ) asking where Kakoti was. Engelbrecght returned to the mine at about 23H00 and at that time found Kakoti at the mine working.  He further testified that after his return Garab advised him (Engelbrecght) that he must lay charges against Kakoti because Kakoti left the mine without permission and without clocking out.

 

[25] Mr. Kakoti’s evidence was to the effect that on 15 March 2010 he arrived at the mine clocked in and worked until ten o’clock. While he was working he started experiencing breathing problems.  He then went to the Senior Human Resources officer a certain Mr. Heita and told him about the problem who replied that since Kakoti was not injured whilst on duty there was not much he could do for him. So he then went to Garab’s office and there was nobody at Garab’s office, he walked slowly to the gate. When he got to the gate the clocking lady and the clock card were not there. He testified that he waited until he could not wait anymore, so he told the security guard that he could not wait anymore so he would go and he asked the security guard to tell the clocking lady to clock him out.  The security guard (Mr. Kambonde) also testified at the hearing, he corroborated Mr. Kakoti’s evidence and proceeded to state that Mr. Kakoti asked him to tell the clocking lady to clock him out because he was sick. He testified that he started his patrol duties and he forgot to inform the clocking lady about Kakoti’s request. After all these evidence the chairperson of the disciplinary hearing adjourned the hearing and on 20 March 2010 he made the following ruling (I quote verbatim).

 

‘I come to the following finding conclusion when I listen to both side s in the hearing.

 

A) I find sufficient evidence on the charge of fraud against the accused, Mr. Kakoti had the intent to defraud the company based on the way he left the working place and the way he come in he was not even in position of his clinic card.

 

Based on this I found him guilty on the charge.

 

B) On the charge of living work without permission I found the accused guilty based on that he Mr. Ferdinand did not inform his superior. And also the fact that he has a final warning for (9) month on similar charges that he was absent without permission I come to the conclusion that he is guilty as charged therefore I found him guilty as charged.

 

I recommend dismissal of Mr. Ferdinand Komati.’

[26] In the absence of any specific definition in the appellant’s rules and regulations, fraud must be given its ordinary mean within the general law applicable in the country. In the South African Criminal Law and Procedure[11] fraud is defined as follows:

 

‘Fraud consists in the unlawful making with intent to defraud, a misrepresentation which causes actual prejudice or which is potentially prejudice to another.’

 

[27] It follows that for the appellant to succeeded in discharging its onus, it had to adduce evidence that showed that Mr Kakoti in failing to clock out as he did, unlawfully failed to clock and that the omission or failure was calculated or intended to misrepresent to the employer that he was on duty and that the misrepresentation caused the appellant prejudice or potential prejudice. On the evidence before the chairperson of the disciplinary hearing I fail to see how and on what basis the chairperson of the disciplinary hearing could find ‘sufficient evidence’ to prove the charge of fraud against Mr. Kakoti and that Mr. Kakoti had the intent to defraud the company. 

 

[28] I say so for the following reasons Mr. Kakoti’s evidence that he went to Mr. Garab’s office (the maintenance manager) to ask for permission was never contradicted, the human resources practitioner confirmed that he was approached by Kakoti and that he told Kakoti that he could not assist him. The security guard confirmed that Kakoti asked him to inform the clocking lady to clock him out but he (the security guard) forgot to inform the clocking lady. The finding by the chairperson of the internal disciplinary hearing is such that no reasonable chairperson of a disciplinary hearing would have made such a finding. The finding by the chairperson that ‘the fact that Kakoti has a final warning for (9) month on similar charges that he was absent without permission I come to the conclusion that he is guilty as charged’ is irrational and absurd.  It is therefore my view that chairperson of the internal disciplinary hearing failed to understand the case which was presented by Kakoti and the weight to be accorded to the explanation provided by Kakoti and his witnesses, the chairperson of the disciplinary hearing failed in his basic duty of properly determining the evidence before him. In fact the chairperson of the disciplinary misunderstood the case that was before him. I therefore conclude that the appellant has not made out a prima facie case that it had a valid reason to dismiss Mr. Kakoti and I hold that the appellant has not made out a defence to that part of the complaint. Apart from the absence of a valid reason the disciplinary hearing was also characterized by a number of procedural irregularities, (for example the chairperson of the disciplinary hearing without affording Mr. Kakoti the opportunity to address him on the evidence led, made a finding on his guilt, the sentence was imposed without affording Mr. Kakoti the opportunity to lead evidence in mitigation. Mr. Kakoti filed an appeal which was not heard) rendering the hearing procedurally unfair.

 

[29] In the result I make the following order:

1. The appeal succeeds in respect of the arbitrator’s dismissal of the appellant’s application to rescind the award made by the arbitrator, Mr. Humu, on 08 November 2013 is set aside.

2. The determination and award made by the arbitrator, Mr. Humu, on 08 November 2013 is altered to read:

 

2.1       The dismissal of the respondent, Mr. Kakoti, was procedurally and substantively unfair.

 

2.2         The appellant, Purity Manganese, is ordered to pay the Kakoti a salary and benefits he was earning at the time he was dismissed, from 20 March 2010 to 08 November 2013, including bonuses, salary increments/adjustments and any other benefits respondent would have been entitled to within the period of 20 March 2010 to 08 November 2013.

2.3       In terms of s 87(2) of the Act, appellant is ordered to pay interest on the amounts mentioned paragraph 2.2 of this order at the rate of 20% per annum from 08 November 2013 until the date of payment.

3 I make no order as to costs.

SFI Ueitele

Judge

APPEARANCES

APPELLANT: Mr JP Jones

Instructed by GF Kopplinger Legal Practitioners

FIRST RESPONDENT: Mr U Hengari

Instructed by the Directorate of Legal Aid

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