Get documents about "CASE NO
Shared by: HC120807021435
-
Stats
- views:
- 0
- posted:
- 8/6/2012
- language:
- pages:
- 23
Document Sample
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: PA5/05
In the matter between
SHOPRITE CHECKERS (PTY) LIMITED APPELLANT
And
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION FIRST
RESPONDENT
COMMISSIONER JOHN ROBERTSON SECOND RESPONDENT
NYAMEKO WYCLIFFE YENGENI THIRD
RESPONDENT
JUDGMENT
Jappie AJA
[1] This is an appeal against a judgment of the Labour Court in which the
Court upheld a ruling by a commissioner declining to rescind an arbitration
award handed down in the absence of the appellant.
[2] The appellant, Shoprite Checkers (Pty) Ltd trades inter alia at
Grahamstown, in the Eastern Cape Province. The first respondent is the
Commission for Conciliation, Mediation and Arbitration (“the CCMA”) and
its offices situated, inter alia, at East London. The second respondent, a
commissioner, is in the employment of the CCMA and it is his ruling that
formed the subject matter of the decision of the Labour Court now
appealed against. The third respondent, Nyameko Wycliffe Nengeni, was
employed by the appellant as a sales manager at its store in
Grahamstown. He was appointed to that position on the 1 st December
2002.
[3] The facts and circumstances which gave rise to the application for the
rescission of the arbitration award may be summarized as follows:
During October 2003, whilst the third respondent was on duty, two
persons were apprehended by the security guards at the appellant’s store
in Grahamstown for having allegedly stolen electrical appliances. The
police were called in and the two persons were arrested. The following
day the third respondent was approached by a Miss Pumla Gamana who
informed him that a syndicate was involved in stealing goods from the
appellant’s store. She gave him the name of two security guards both
of whom were in the employ of a company known as Magnum Security.
This security company provided security services at the appellant’s store.
The third respondent informed his supervisor, a Mr. Classen, as to what
Gamana told him. Classen in turn informed Magnum Security who then
installed a camera to monitor the area in the appellant’s store from where
stock was being stolen.
[4] Towards the end of October 2003, stock was again stolen from the
basement of the appellant’s store. At the time of the theft one of the
2
security guards who had been implicated by Pumla Gamana was on duty.
The appellant caused the matter to be investigated and in the course of
the investigation Pumla Gamana was approached for further information.
On information supplied by her some of the appellant’s goods were
recovered. A week after this incident, the third respondent was asked to
take a polygraph test. Did she take it and if so, what were the results?
Thereafter, the third respondent was requested to undergo further
questioning at the offices of the appellant in East London. Further
investigation by the appellant led to the third respondent being charged
with misconduct.
[5] At a subsequent disciplinary inquiry the charges faced by the third
respondent were set out in the “charge sheet” read as follows:-
Charge:
“1) Gross misconduct and dishonesty for withholding or not disclosing
to management of the store or regional team about the syndicate and/or
shoplifters of which you acknowledge of which also included the whereabouts
of stolen property.
2) Gross misconduct and dishonesty for breaking the trust relationship
between the company and yourself.
3) Gross misconduct and dishonesty for breaking and breeching company rules.”
[6] The third respondent pleaded not guilty to all the charges. Nevertheless,
the chairman of the disciplinary inquiry found him guilty and the sanction
that was imposed was that the third respondent be dismissed from the
3
appellant’s employment with effect from the 5th December 2003. The third
respondent felt aggrieved by this dismissal, which he regarded as unfair. A
dispute then arose between the appellant and the third respondent on the
fairness or otherwise of the dismissal.
[7] The third respondent referred the dispute (of his dismissal) to the CCMA.
At conciliation the matter remained unresolved and it was then referred to
arbitration.
[8] The arbitration was set down for the 5th May 2004 and was to be held at
the offices of the Department of Labour in Grahamstown. The second
respondent was assigned to conduct. Notices of set down of the
arbitration were served on both the third respondent and the appellant.
The appellant had been notified of the arbitration proceedings by
registered mail and had collected the notice of set down on the 16th April
2004. The second respondent was assigned to conduct the arbitration.
[9] Jacobus Federik Booysen, a human resources manager in the employ of
the appellant, was appointed to represent the appellant at the arbitration
proceedings. At the hearing on the 5th May 2004 the third respondent
was in attendance. No-one appeared for or on behalf of the appellant.
The second respondent, having satisfied himself that the appellant had
been properly notified of the date, time and venue of the proceedings and
4
in the absence of any explanation from the appellant for its failure to
attend, proceeded with the arbitration. It later transpired that Booysen had
mis-diarised the date of the hearing
[10] The following day, the 6th May 2004, Booysen went to the offices of the
Department of Labour and it was then that he was informed that the
arbitration proceedings had been concluded on the previous day and in
the absence of any representative of the appellant. Booysen contacted the
appellant’s attorney and informed them of the situation. He was advised to
wait for the commissioner to hand down his award.
[11] On the 8th May 2004 the second respondent handed down his award.
The effect of the award was that he found the dismissal of the third
respondent to have been substantively unfair. The appellant was ordered
to re-instate the third respondent into his position as sales manager at the
Grahamstown store retrospectively from 6 December 2003. This means
that the reinstatement order was to operate for the entire period from the
day after the dismissal.
[12] On the 11th May 2004 the appellant’s attorneys were notified of the
award. The appellant then instructed its attorneys make an application to
have the award rescinded. On the 17th June 2004 the appellant filed an
application with the CCMA to have the second respondent’s award
5
rescinded. The same was served on the third respondent. The rescission
application was brought in terms of section 144 of the Labour Relations
Act, 1995 (Act 66 of 1995)(“the Act”).
Section 144 reads as follows-:
“Variation and rescission of arbitration awards and ruling.
Any commissioner who has issued an arbitration award or ruling, or any other
commissioner appointed by the director for purpose, may on that commissioner’s
own accord or, on the application of any affected, vary or rescind an arbitration
award or ruling-
(a) erroneously sought or made in the absence of any party affected
by that award;
(b) in which there is an ambiguity, or an obvious error or omission,
but only to the extent of that ambuity, error or omission; or
(c) granted as a result of a mistake common to the parties to the
proceedings.”
[13] The application for the rescission of the arbitration award came before the
second respondent. On the 4th August 2004 he handed down his ruling.
The second respondent dismissed the application for rescission. In doing
so the second respondent concluded that the material facts and
circumstances of the application for rescission did not fall within the
provisions of s 144 of the Act.
The second respondent stated his reasons as follows:-
6
“In the circumstances it cannot be said that the award was erroneously sought or
erroneously made in the absence of any party affected by the award in that the notice
given to the applicant complied in all respects with the rules in question. The fact that
the applicant’s employee made an incorrect diary reference does not affect the question
of proper notice and therefore does not make the ward erroneously sought or erroneously
made.
The fact that the entry was incorrectly diarized did not amount to good cause for
rescission. If this was so then any person could claim that the matter be rescinded
under s 144 by virtue of the fact that he either forgot or made an incorrect diary reference
regarding an arbitration hearing. This obviously defeats the purpose of s 144, which was
enacted to address the three categories listed there under only.”
[14] The appellant, thereafter, brought a review application in the Labour Court
and sought to have the second respondent’s ruling reviewed and set
aside. The application was heard by Pillay J in the Labour Court who
dismissed the application. In its judgment, the Labour Court stated its
conclusions as follows:-
“[4] The application for rescission was brought in terms of all the sub sections
of s 144 of the Labour Relations Act No. 66 of 1995 (the “LRA”). As it
turned out, submissions in this review were made only in terms of ss (a).
Nevertheless the commissioner’s ruling comprehensively covered ss (b)
and (c). …
[6] Neither s 144, nor Rule 32 of the CCMA requires an applicant for rescission to
show good cause. I am in respectful disagreement with judgments and awards
7
that require it in applications for rescissions of a CCMA decision. (Goodyear
South Africa (Pty) Ltd v CCMA and Others - P117/01 unreported at paragraph
15, per Gering A J.) …
[11] In the circumstances I hold that good cause is not a requirement in an application for the
rescission of the decision of the CCMA, and the commissioner was not required to take it into
account. However, I also find that to the extent that he did take it into account, he justifiably
rejected the explanation as not amounting to good cause.”
[15] The appellant subsequently sought and obtained the leave of the court a
quo to appeal to the Court, which leave was granted.
The appeal
[16] Before this Court, counsel for the appellant, submitted that the main
question raised in the appeal is whether s 144 of the Act permits the
rescission of a CCMA arbitration award on the ground of good cause. He
submitted that a finding in favour of the appellant on this issue would
result in the appeal being upheld as it would follow that the court a quo
had erred in law in concluding that good cause was an insufficient basis
for the rescission of an arbitration award. Moreover, he submitted that
there can be no dispute that the appellant had in fact demonstrated good
cause for its non- attendance at the CCMA on the date when the
arbitration proceedings were held.
[17] It was argued that the approach adopted by the second respondent and
the Labour Court in regard to whether or not an arbitration award is to be
rescinded on the basis that an applicant (for rescission) has shown good
8
cause is predicated on the approach that s 144 of the Act does not
contemplate good cause to be shown. Counsel for the appellant submitted
that, as the text of s 144 mirrors the wording of Rule 42 of the Uniform
Rules of Court, this approach stems from placing reliance on the
interpretation of Rule 42 in various decisions of the High Court. (See
Colyn v Tiger Foods Industries Ltd t/a Meadow Feed Mills (Cape) 2003
(6) SA 1 (SCA)).
[18] It is apparent from the judgment of the court a quo that it applied s 144 as
if it was applying the provisions of Rule 42 of the Uniform Rules of Court.
This approach, it was argued, effectively amounted to a reliance on the
principle of statutory interpretation referred to as “in pari materia”. The
effect of this principle is that, where the meaning of a statute is unclear,
then that statute should be afforded the same meaning given to an earlier
statute if couched in the same language. It was submitted that this
principle is inapplicable because it only applies to corresponding statutory
provisions and not to provisions in statutes and corresponding rules of
Court. It was argued that, that interpretation of Rule 42 arises in
circumstances which are entirely different to the circumstances under
consideration in relation to section 144 of the Act. In the High Court, a
party bringing an application for rescission has available to him, in addition
to the provisions of Rule 42, other remedies. He may obtain rescission
under the common law or under the provisions of Rule 31(2) of the
9
Uniform Rules which permits rescission on good cause shown. There is
no similar rule which is applicable to arbitration proceedings before the
CCMA.
[19] Counsel for the appellant submitted that this Court could interpret section
144 in such a way as to include “good cause”. He said that this Court has
previously interpreted provisions of the Act to include words that were not
expressly part of such provisions. In this regard he referred to the decision
of this Court in Carephone. In Carephone this Court held that the ground
of review of exceeding powers in section 145 of the Act had to be read to
also include unjustifiability of an arbitration award as a ground of review.
He also relied on the judgment of this Court in Queenstown Fuel
Distributors CC v Labuschagne NO and Others (2000) 21 ILJ 166 (LAC).
In that case this Court decided that, although there was no express
provision in section 145 of the Act giving the Labour Court the power to
condone non-compliance with the six weeks time-limit set out therein,
section 145 had to be read to be directory and, therefore, not to exclude
this Court’s power to condone non-compliance with time-limits relating to
access to Court.
[20] An additional reason why the “in pari materia” principle is inapplicable is
that in interpreting Rule 42 the civil courts do not have to contend with the
provisions of section 3 of the Act. This section provides:-
10
“Any person applying this Act must interpret its provisions –
a) To give effect to its primary objects;
b) In compliance with the constitution, and
c) In compliance with the public international obligations of the
Republic.”
[21] As one of the primary objects of the Act is the effective resolution of labour
disputes, applying the “in pari materia” principle would defeat this object
of the Act as it would in effect deprive the appellant in these
circumstances of the opportunity of being heard and thus the dispute
between the parties would not effectively be resolved.
[22] In response to the appellant’s argument, the third respondent contended
that, as the appellant had sought to raise on appeal a single issue which
was whether or not s 144(a) of the Act permitted the rescission of a
CCMA arbitration award on good cause shown, the appeal must fail as the
sub-section makes no mention of good cause as a ground for rescission.
It was submitted that, as section 144 of the Act mirrors verbatim the
provisions of Rule 42 of the Uniform Rules of the High Court and the
civil courts have ruled that the correct interpretation of Rule 42 is that it
does not contemplate rescission of a default judgment on good cause,
section 144 of the Act can also not be said to contemplate rescission of a
CCMA award on good cause shown. Moreover, the civil courts have
11
consistently refused to rescind default judgments under Rule 42(1)(a)
where there was no irregularity in the proceedings and the party in default
relied on the negligence or physical incapacity of his attorney. (See:
Bristo v Hill 1975(2) SA 505 N; Tshabala v Peer 1979 (4) SA 27T). It
was submitted that section 144(a) of the Act is of limited application and
can only be invoked in circumstances where an award was erroneously
sought or erroneously made.
[23] In any event, counsel for the third respondent urged that this Court
should be slow to “read in” or to construe s 144 (a) of the Act to include
good cause as a ground for the rescission of an arbitration award since a
court does not have power to create substantive law and rules which seek
to make substantive law are ultra vires .
[24] In the affidavit in support of the application for rescission of the arbitration
award Jacobus Federick Booysen stated:-
“I now wish to make the following submissions, which is material to the legal
aspects pertaining to this rescission application:
6.1 It is respectfully submitted that it is trite that in order to succeed in an application
for rescission of an award, the affected party (hereinafter referred to as the
“applicant”) must show good cause justifying the rescission of the award under
attack. In establishing good cause, the applicant bears the onus of not only
proving that it has a reasonable explanation for its default but also that it has a
bona fide case to pursue before this Honourable Commission.”
12
[25] Even though the appellant relied on the provisions of s 144, counsel
argued that on the facts as set out in Booysen’s affidavit good cause was
demonstrated and that the second respondent ought to have rescinded
the award solely on that ground.
Section 144 of the Act reads as follows:-
“144. Variation and rescission of arbitration awards and rulings. - Any
commissioner who has issued an arbitration award or ruling, or any other commissioner
appointed by the director for that purpose, may on that commissioner’s own accord or, on
the application of any affected party, vary or rescind an arbitration award or ruling –
(a) erroneously sought or erroneously made in the absence of any party
affected by that award;
(b) in which there is an ambiguity, error or omission, but only to the extent of
that ambiguity, error or omission; or
(c) granted as a result of a mistake common to the parties to the
proceedings.”
[26] It is so that s 144 of the Act makes no mention of good cause shown.
Moreover s 144 of the Act mirrors the text of Rule 42 of the Uniform Rules
of Court. Rule 42 (1) reads as follows:-
“42 (1) the court may, in addition to any other powers it may have mero motu or
upon the application of any party affected, rescind or vary:
(a) an order or judgment erroneously sought or erroneously granted in
the absence of any party affected thereby;
(b) An order or judgment in which there is an ambiguity , or a patent
error or omission, but only to the extent of such ambiguity, error or
13
omission;
(c) An order or judgment granted as the result of a mistake common to
the parties.”
[27] In Colyn v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape)
2003 (6) SA 1(SCA), Jones AJA with regard to Rule 42 stated the position
as follows:-
“[5] It is against this common law background which imparts finality to judgment in
the interest of certainty, that Rule 42 was introduced. The Rule caters for
mistakes. Rescission or variation does not follow automatically upon proof of a
mistake. The Rule gives the Court a discretion to order it, which must be
exercised judicially (Theron NO v United Democratic Front (Western Cape
Region) and others and Tshivhase Royal Counsel and another v Tshivhase and
Another; Tshivhase and Another v Tshovahase and Another.).
[6] Not every mistake or irregularity may be corrected in terms of the Rule. It is, for
the most part at any rate, a restatement of the common law. It does not purport
to amend or extend the common law. That is why the common law is the proper
context for its interpretation. Because it is a Rule of court it ambit is entirely
procedural.
[7] Rule 42 is confined by its wording and context to the rescission or variation of an
ambiguous order or an order containing a patent error or omission (Rule 42(1)(b)); or an order
resulting from a mistake common to the parties (Rule 42 (1)(c)); or ‘an order erroneously sought
or erroneously granted in the absence of a party affected thereby’ Rule 42(1)(a)). In the present
case the application was, a far as the Rule is concerned only based on Rule 42 (1)(a) and the
crisp question is whether the judgment was erroneously granted.”
[28] In the civil courts, Rule 42 is confined by its wording and context to limited
14
application. However it is clear that the rule do not deprive the court of its
discretion which must be exercised judicially.
The civil courts had always retained discretion to grant rescission of a
judgment on good cause shown. In De Wet and Other v Western Bank
Limited 1979 (2) SA 1031 [AD] at 1024 F Trengrove AJA explained the
position as follows:-
“Thus, under the 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 (cf examples quoted by Kersteman (op cit sv
defaillant) 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 Courts 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 for 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.”
15
[29] It seems to me that in applying s 144 of the Act a commissioner is in the
same position as a judicial officer in the civil courts when considering an
application for rescission.
[30] Moreover, s 3 of the Act directs any person applying the Act to interpret its
provisions in such a way that it gives effect to the primary objects of the
Act and for the interpretation to comply with the Constitution.
[31] This is what occurred in Carephone (Pty) Ltd v Marcus NO and Others
(1998) 11 BLLR 1093 (LAC). In this case this Court had to interpret and
give effect to section 145(2)(a)(iii) of the Act. The court held that section
145(2)(a)(iii) had to be interpreted in the manner consistent with the
Constitution. Even though section 145(2)(a)(iii) was the exact equivalent of
section 33(1)(b) of the Arbitration Act 42 of 1965, which had traditionally
been interpreted narrowly, this Court decided or chose a wider
interpretation of section 145(2)(b)(iii) by effectively reading into it the
provisions of item 23(b) of Schedule to the Constitution. This then gave
rise to wider grounds of review then the ordinary language reflects.
[32] In Queenstown Fuel Distributors CC v Labuschange NO and Other
(2000) 21 ILJ 166 this Court found that the Act did not expressly confer
authority on the Labour Court to condone non-compliance with the
16
time-limit set out in section145 of the Act. This Court inquired into the
question whether there was anything in the Constitution which suggested
that the legislature did not, despite what it may have said or omitted to
say, intend the time-bar to be immune from adjustment by the court. It
considered the injunction in section 3 of the Act and the provisions of
s23(1) and of the Constitution and concluded at 174G, “that
considerations of justice and convenience dictate that acceptance of the
proposition that the legislature intended the time-limit for bringing review
proceedings in section 145(1)(a) to be directory. In principle, therefore, it is
possible to condone non-compliance with the time-limit”.
[33] As there are circumstances which can be envisaged, such as in the
present case, and which fall outside the circumstances referred to section
144 of the Act in such cases both logic and common sense would dictate
that a defaulting party should, as a matter of justice and fairness be
afforded relief. It follows, that if one was to hold that section144 of the Act
does not allow for the rescission of an arbitration award in circumstances
where good cause is shown and that an applicant who seeks rescission of
an arbitration award was compelled to bring the application within the
limited circumstances allowed by the wording of the section it could lead to
unfairness and injustice. In my view this would be inconsistent with the
spirit and the primary object of the Act referred to above. Furthermore, I
am of the view that to interpret section 144 of the Act so as to include
17
“good cause” as a ground for rescission is to give the Act an interpretation
that is in line with the right provided for in section 34 of the Constitution
because, if section 144 is not interpreted in that way, a party who can
show good cause for his default would be denied an opportunity to
exercise his right provided for in section 34 of the Constitution despite the
fact that he may not have been at fault for his default. That could be a
grave injustice.
[34] It would appear that the second respondent was of the view that good
cause could be considered as a ground for rescinding the award. In his
reasons for refusing the application for rescission he made the following
remarks:-
“The fact that the entry was incorrectly diarized did not amount to good cause
for rescission.”
[35] The test for good cause in an application for rescission normally involves
the consideration of at least two factors. Firstly, the explanation for the
default and secondly whether the applicant has a prima facie defence. In
Northern Province Local Government Association v CCMA and Other
[2001] 5 BLLR 539 (LC) at 545 at para 16 it was stated:
“An application for the rescission of a default judgment must show good cause
and prove that he at no time denounced his defence, and that he has a serious
18
intention of proceeding with the case. In order to show good cause an applicant
must give a reasonable explanation for his default, his explanation must be made
bona fide and he must show that he has a bone fide defence to the plaintiff’s
claims.”
[36] In MM Steel Construction CC v Steel Engineering and Allied Workers
Union of SA and Others (1994) 1 5 ILJ 1310 (LAC) at 1311 I – 132a
Nugent J had this to say:-
“These two essential elements ought nevertheless not to be assessed mechanistically
and in isolation. While the absence of one of them would usually be fatal, where they
are present they are to be weighed together with relevant factors in determining whether
it should be fair and just to grant the indulgence.”
[37] In considering good cause, the second respondent took into account only
one aspect of the test. That is to say he only considered the fact that
Booysen had mis-diarized the date of the arbitration hearing. He clearly
did not consider the appellant’s defence to the third respondent’s claim as
he made no mention of it in his decision. In my view, the second
respondent, failed to weigh together all the relevant factors in determining
whether it was just and fair and therefore, whether good cause had been
shown for the rescission of the arbitration award. It follows that the
second respondent did not apply his mind to all the issues before him and
if he did, he ought to, in the circumstances of this case, to have rescinded
his earlier default award.
19
[38] When the matter came before the Labour Court, Pillay J adopted the
approach that good cause is not a requirement in an application for the
rescission of a decision of the CCMA and a commissioner was obliged not
to take it into account. As already shown above, I take a different view.
Section 144 must be interpreted so as to also include good cause as a
ground for the rescission of a default arbitration award. Accordingly, a
commissioner may rescind an arbitration award under section 144 where
a party shows good cause for its default. In my view this approach of
interpreting the Act is in line with the approach adopted by this Court in the
Queenstown case referred to above, particularly at paragraph 17-24
thereof. It, therefore, follows that the decision of the Labour Court is to be
set aside.
[39] In light of all of the above the Court a quo should have set aside the ruling
of the CCMA. The next question that arises is whether the Court a quo
would then have had to remit the matter to the CCMA to be dealt with
afresh or whether it could itself have effectively made the decision that the
CCMA ought to have made in the rescission application. One of the
primary objects of the Act is the effective resolution of disputes. This
includes an expeditious resolution of disputes. In this case the dismissal
occurred in December 2003. Accordingly, there has already been a delay
of over three years. Furthermore, the employer had missed the arbitration
hearing date by one day. The non-attendance by the employer’s
20
representative was due to an understandable mistake. On the merits the
employer’s case is one which deserves an opportunity to be heard at the
arbitration. I am of the view that, if I were to remit the matter back to the
CCMA for it to decide the rescission application afresh, the granting of the
rescission in this matter would be a foregone conclusion in the light of all
the circumstances of the case. I am of the view that the Labour Court,
and, therefore, this Court as well, has power in cases such as this to make
the decision which the tribunal whose decision is on review should have
made (See Traub v Administrator of the Transvaal and another 1989 10
ILJ 9 at 21D-H)
[40] I do not propose to deal with the facts relating to the rescission in any
detail. The facts relating to the background to the dismissal dispute have
been set out above. Those show, in my view, that the employer has a
case on the merits that is triable. Indeed, it cannot be said that the
employer has no reasonable prospects of success. The explanation of the
failure by the employer’s representative to appear at the CCMA is
understandable. He misdiarised the matter. He thought it was to be on the
day after the day when it was actually set down for arbitration. In all of
those circumstances the arbitration award given earlier should be
rescinded and the employer be given an opportunity to defend its decision
to dismiss the employee. With regard to costs I am of the view that each
party should pay its own costs.
21
[41] In the premises I make the following order-:
1. The appeal is upheld.
2. Each party is to pay its own costs.
3. The order of the Labour Court is set aside and replaced with the
following order-:
“(a). the application for review succeeds.
(b). No order is made as to costs.
The ruling issued by the CCMA dismissing the rescission
(c).
application is hereby set aside and is replaced with the
following decision-:
(i) the arbitration award previously issued in this matter
Is hereby rescinded and the dispute can be set down
for arbitration with notice to all parties.”
_____________________
Jappie AJA
I Agree.
______________________
Zondo JP
I Agree.
______________________
Khampepe AJA
On behalf of the appellants: Adv. AT Myburgh
Instructed by
Van Zyl incorporated
22
Port Elizabeth
On behalf of the respondent: Adv Quinn Sc
Instructed by
Mili attorneys
Grahamstown
Judgment handed down on the 29th June 2007
23
