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REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

JUDGMENT

 

Not Reportable

C737/2019

 

In the matter between:

 

THEMBELANI MANGENA                                                               Applicant

 

and

 

SOUTH AFRICAN LOCAL BARGAINING

COUNCIL                                                                                          First Respondent

 

LILIAN GOREDEMA N.O.                                                                Second Respondent

 

CITY OF CAPE TOWWN                                                                  Third Respondent

 

 

Date heard: 4 August 2021 by means of virtual hearing

Delivered: 6 December 2021 by email. Deemed received at 10.00hr on 7 December 2021.

 

JUDGMENT

 

RABKIN-NAICKER J

[1]        This is an opposed application to review an award by the second respondent (the Commissioner) under case number WCM071906. The Commissioner decided an unfair labour practice dispute as follows: “The respondent’s declining of the Applicant’s application for funding his studies is fair.”

[2]        In his founding papers, the applicant submits that the Commissioner failed to rationally and reasonably determine the matter as a reasonable decision-maker could have done; committed misconduct in that she was obviously biased and/or intimidated by the legal representative for the third respondent (the City); having ruled evidence was not admissible and then subsequent to pressure from the City’s representative, she allowed this evidence.

[3]        The applicant’s supplementary affidavit makes reference to the alleged misconduct of the Commissioner, having had sight of the transcribed record of the arbitration, he avers that the Commissioner did not allow him to speak on at least two occasions, limiting the subject matter he wanted to testify on and preventing him from answering questions put to him in cross examination.

[4]        Although the parties were both legally represented, the Commissioner took an inquisitorial approach. This was particularly apparent in relation to the examination in chief of the applicant. She questioned him for a successive seventeen pages of the transcript at one point. In essence, it is submitted that the Commissioner stepped into the arena to an unacceptable extent.

[5]        The record is replete with examples of the Commissioner’s interventions during the testimony of applicant and during his cross-examination. I have read the record carefully in this respect. I include the following extract of the record to indicate the approach of the Commissioner in an arbitration in which attorneys represented the parties. The excerpt begins with Mr Brunsdon for the applicant attempting to clarify an issue with his client at the tail end of his examination in chief:

“MR BRUNSDON: But you wanted to illustrate a comparison between the national, let’s call it, framework, and Local Government, or provincial, the framework, can you maybe just, just in short, give us your comparison of what, what is your issue with regards to…(intervention).

COMMISSIONER: You know what you are asking me to do? To be the godmother of scarce skills. Look at what the national thing is, and this, and then say this is unfair, because the national says that, I don’t think I’m even going there. That’s why when you were trying to tell me the … (indistinct), and this is national, I picked what you said, which is very relevant is that why do they limit this to junior levels only, I get you.

MR MANGENA:     But I think the scarce skill is very critical, Commissioner, because the City of Cape Town is implementing a national strategy.

COMMISSIONER: But what …(intervention).

MR MANGENA:     … (indistinct) we not go and do what they want to … (indistinct) it.

COMMISSIONER: Listen to me, they have a right to do what they want to do, provided it’s fair, given to what they have explained. Remember, I am going to evaluate what they have said as a reason, against what you think they should have said. And you have said to me as a reason they were giving me national qualification, what-what, that is what I’m going to evaluate. That’s why the academic exercise of telling me what national scarce skills are, I am simply telling you that I’m not going there. You might believe that I should go there, I don’t think so. I’m not dealing with that. I am dealing with what they have said, that’s why I say what did they say. And you told me in NQF what, and then we looked at what they said. So, that’s basically what I’m looking at.

MR MANGENA:     But … (indistinct) … (intervention).

COMMISSIONER: Are you going to argue with me?

MR MANGENA:     I’m not going, I just wanted to state the, I am still of the view that … (intervention).

COMMISSIONER: Your view, really, that’s why you came here. Because your view, I think you have stated it to many people, and they have not taken it. I’m not going to take your view. I’m going to take what I think is relevant to what you have said you are challenging. Do you get me? That’s why I’m here. Alright? Mr Brunsdon.

MR BRUNSDON:  That’s all from my side, Commissioner.

[6]        The cross examination of the applicant then proceeded, an extract of which reads as follows:

“MR STANSFIELD:          Please look at C7.

MR MANGENA:     Okay it’s fine, alright.

MR STANSFIELD: Ja. Do you agree?

MR MANGENA:     Yes.

MR STANSFIELD: 25 October 2018. You apply a month later.

MR MANGENA:     Correct yes.

MR STANSFIELD: This is the document that applies at the time of your application. Correct?

MR MANGENA:     I don’t agree.

MR STANSFIELD: Why?

MR MANGENA:     Because the priority list for that financial year 2018 … (intervention).

MR MANGENA:     This is not attached to a financial year.

MR MANGENA:     You’re asking me a question.

MR STANSFIELD: Here’s a document – it can’t be simpler Mr Mangena.

COMMISSIONER: You see when you asked the question, I get what your question is, what his answer is. Shouldn’t you rather trust me and move on and then in your address you tell me this?

MR STANSFIELD: I take the cue.

COMMISSIONER: The case will not have anyone answering except Mr Brunsdon.”

MR STANSFIELD: Thank you very much Madam Commissioner.”

[7]        In the Court’s view the above examples, of which there are many, were sufficient to have given the applicant a reasonable apprehension of bias. As the LAC has stated in Satani v Department of Education, Western Cape & others the test is: “an objective test which is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the commissioner has not brought an impartial mind to bear in the adjudication of the dispute.”[1] In that matter, the LAC found that the award should be reviewed and set aside because the scope, nature and effect of the arbitrator's interventions and dominance were such that she failed to afford the parties a fair hearing.[2]

[8]        In Ekurhuleni Metropolitan Municipality v SA Local Government Bargaining Council & others[3], Van Niekerk J had this to say

“ [12] In Vodacom Service Provider Co (Pty) Ltd v Phala NO & others (2007) 28 ILJ 1335 (LC), this court reviewed and set aside an arbitration award in circumstances where the court held that, amongst other things, the commissioner concerned had questioned a party’s witnesses in a way that amounted to cross-examination and thus overstepped the boundaries of fair procedure in the conduct of arbitration proceedings. The court went on to note that a commissioner has a discretion about how an arbitration should be conducted and that the commissioner may decide to adopt an adversarial or an inquisitorial approach but that irrespective of the approach adopted, the commissioner is required to conduct arbitration proceedings in a fair, consistent and even-handed manner. At para 15 of the judgment, the court said the following:

‘A commissioner cannot assist or be seen to assist, one party to the detriment of the other. A commissioner cannot put to witnesses his propositions, should not interrupt the witnesses’ answers, challenge the consistency of a witness with his own evidence, indicate that he doubted the witness’s credibility, or make submissions regarding the construction of evidence.’

[14] The CCMA Guidelines on Misconduct Arbitrations (at para 33) suggest that when the parties are primarily responsible for calling witnesses and presenting their evidence and cross-examining the witnesses of other parties an adversarial approach is to be recommended. An inquisitorial approach, on the other hand, is suggested if one or both parties is unrepresented, or where a representative is not experienced. The guidelines warn that arbitrators adopting an inquisitorial approach must be careful to ensure that the parties are aware of and F have the opportunity to exercise their rights under s 138(2).

[15] The guidelines go on to suggest that when an arbitrator questions witnesses, whether in an inquisitorial or adversarial process, the arbitrator should explain to the parties the reason for seeking the information sought and must allow the parties to address questions to witnesses on any issues raised by the additional evidence. In short, when an arbitrator adopts an inquisitorial role in arbitration proceedings, the commissioner may not abandon the well-established rules of natural justice. On the contrary, it calls for greater vigilance on the part of the commissioner particularly since the interventionist role that he or she adopts might easily lead to a perception or apprehension of bias, especially on the part of a lay litigant (Mutual & Federal Insurance Co Ltd v CCMA & others [1997] 12 BLLR 1610 (LC)).

[16] The guidelines are consistent with judgments of this court and, in particular, the judgment in Vodacom above. That decision, it will be recalled, specifically contemplated that the objective of fair, consistent and even-handed proceedings precluded commissioners from assisting the one party to the detriment of the other, putting propositions to witnesses, interrupting witnesses’ answers, challenging the consistency of a witness, indicating doubt as to witnesses’ credibility or making submissions regarding the construction of evidence.

[17] In the present instance, in my view, and after a careful perusal of the record, the commissioner’s conduct was such that he overstepped the mark. It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings but read as a whole, the transcribed record reflects that the arbitrator failed to respect the roles of the parties’ respective representatives and assumed to herself the role of leading evidence and conducting cross-examination. The scope of the arbitrator’s intervention was clearly not confined to seeking clarity in respect of matters raised by the questions put to witnesses by the parties’ representatives. The parties’ representatives were, in effect, reduced to the role of spectators. The arbitrator’s conduct was in clear breach of the above principles.”

[18] For the above reasons, in my view, the arbitrator’s award stands to be reviewed and set aside. Since the basis for the review is that the parties were denied a fair hearing, it is appropriate that the matter be remitted to the first respondent for rehearing before an arbitrator other than the second respondent.”

[9]        The above paragraphs are most apt to the review before me. The conduct of the Commissioner indeed prevented a fair trial of the dispute. I am sensitive to the fact that a de novo arbitration may lead to further costs being incurred by the parties. This is to be regretted. However, as was stated above, a re-hearing is appropriate.

[10]      In view of the above, the review application must succeed. I make no costs order on the Zungu principles. I order as follows:

Order

1.         The Award under case number WCM071906 is reviewed and set aside.

2.         The dispute is remitted to the first respondent for hearing anew before an arbitrator other than second respondent.

 

 

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H. Rabkin-Naicker

Judge of the Labour Court of South Africa

 

 

 

 

 

Appearances:

Applicant: L. Myburgh instructed by Bagraims Attorneys

Third Respondent: G.A. Leslie SC instructed by Mcaciso Stansfield

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