Recommencing arbitration proceedings: Arbiter mistakes

Note: Footnotes omitted, emphasis added and certain personal details redacted to comply with law.

Introduction

[1] This is a very old case which makes for some sorry reading. It is a prime example of how not to conduct litigation in this Court. The matter started as far back as 2011 when the first respondent was dismissed, and then, throughout the many following years, there were a variety of applications and counter applications, stay proceedings, leave to appeals and other preliminary issues, which all served to materially delay conclusion of the case. It is absolutely astounding to me that over the years, this entire matter (including this case and other applications) has attracted no less than seven judgments by various Judges of this Court. In the course of all of this, the merits of the review application itself, which application was brought as far back as 2013, has still not been decided.

I am compelled to reiterate the following principle in Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty) Ltd , which in my view has undoubtedly been severely compromised:

‘Our courts have, on occasion, pronounced on the importance of labour disputes to be conducted with expedition. For example, in National Research Foundation the Labour Court held:
‘[15] It is now trite that there exists a particular requirement of expedition where it comes to the prosecution of employment law disputes. … ‘

[2] What makes all of this worse is that if mere common sense was applied by the parties, and in particular the first respondent, right from the outset of the review application, it would have been realised that the most efficient, competent and in fact expeditious resolution of the matter would have been to agree to simply refer the matter back to the GPSSBC, so that a proper arbitration could be held from scratch. I am quite sure that if this was done, this case would have been completed long ago. I will now do my bit to hopefully finally bring this matter to an end, on the merits. However, considering the history in this case, it is probably likely that good sense will not prevail, and the matter will be sought to be pursued to the Labour Appeal Court. So, I will be as thorough as reasonably possible in deciding this matter on the merits.

[3] Before getting to grips with the merits of the case, certain preliminary issues must be addressed. There were all kind of difficulties with the administration of the Court file in this case, with a variety of spurious allegations being made by the first respondent’s attorneys, which I will not delve into in any detail. Suffice it to say, and to ensure that the sanctity of the Court file was retained, it was kept in the chambers of the Judge President.

Instead of accepting this intervention as a gesture of good faith and assistance to the parties, which is exactly what it was, the first respondent’s attorneys embarked upon a course of action which in essence boiled down to accusing the Judge President of interference with the case. I find this suggestion unfounded and unacceptable. The Judge President placed nothing in the file nor did he in any manner interfere with its compilation. The Judge President also made no decisions or determinations on the file, and in fact went out of his way to ensure that all decisions made in this case were made by presiding Judges in open Court.

In short, the Judge President simply retained the file for safe keeping and to ensure that the matter be heard, due to a variety of reasons that need not burden this judgment. In the end, and whatever may happen in this matter would in each instance be entirely in the hands of the presiding Judge it is allocated to.

[4] When the matter was set down for 30 November 2022, the file was allocated specifically to me to deal with. I was presented with a letter dated 24 November 2022 written to the Registrar by the first respondent’s attorneys, in which a number of contentions were made. This included that when the matter came before Nieuwoudt AJ on 15 September 2021, that learned Judge had determined that the merits of the review application had to be argued (which was done), and consequently, only that Judge could and had to decide such merits, and it was therefore not competent for the review application to be set down for argument on the merits on 30 November 2022.

The first respondent’s attorneys also took issue with a variation judgment handed down by Nieuwoudt AJ on 5 November 2021, which directly contradicted the version offered by the first respondent that the review could only be determined on the merits by Nieuwoudt AJ. This entire issue will however be dealt with later in this judgment. Suffice it to say at this stage, I was unconvinced that there was any impediment to the merits of the review application being argued before me, and I insisted that the matter proceed.

[5] There is another issue of concern. In the letter dated 24 November 2022 by the first respondent’s attorneys, it was indicated that the first respondent’s counsel, advocate Ndziba, would recuse himself from the matter because of the alleged interference by the Judge President with the case as well as an alleged abuse by the Judge President of his judicial position.

This contention was also relied upon by the first respondent’s attorney in stating that he would similarly recuse himself. I have little doubt that this was all part of a stratagem to scupper the hearing of the review application on the merits on 30 November 2022. To put it as simply as possible, the Judge President was not deciding the matter, and these allegations could simply not serve as any kind of justification for the first respondent’s counsel and attorney not to appear before me on 30 November 2022 to argue the merits of the review application.

[6] When the matter then came before me on 30 November 2022, the applicant, as represented by counsel, and the first respondent personally, was present. I indicated to the first respondent that I had seen the letter of 24 November 2022 by his attorneys, however I did not accept that what was contained therein in any manner stood in the way of the matter being heard on the merits on that day. The first respondent indicated that he would like an opportunity to have his attorney attend at Court, and I afforded him that opportunity. The first respondent’s attorney, Mr Malahlela, arrived sometime later. He indicated he was not ready to proceed with the matter, based on what was contained in the letter of 24 November 2022. I explained to Mr Malahlela why I considered the position that had been adopted in that letter to be fundamentally wrong. Mr Malahlela insisted that it was required that Nieuwoudt AJ had to hand down judgment on the merits of the review. I however indicated to Mr Malahlela that there was no obstacle to my determination of the review application on the merits thereof, with the record being in all respects complete, and if he and / or the first respondent’s counsel decided not to participate, they had to stand or fall by that decision, as I would proceed to decide the matter.

[7] In a last attempt to accommodate the first respondent, I informed Mr Malahlela that I would hear argument from the applicant’s counsel that was present in Court, that he had to make careful notes of what was being submitted by such counsel, and that I would then afford the first respondent’s attorneys (and counsel) an opportunity to file written submissions in answer to any argument the applicant’s counsel had presented. I did this because Mr Malahlela was not inclined to present argument himself. The applicant’s counsel then proceeded to present argument.

At the conclusion of the argument of the applicant’s counsel, I made the following order:

• • 1. Judgment in deciding the merits of the review application is reserved.
  • 2. The first respondent, Mr NWM, is given until 20 January 2023 to file further written submissions on the merits of the review application.
  • 3. The applicant, the Minister of Correctional Services, is given until 27 January 2023 to file replying submissions to the first respondent’s submissions in terms of paragraph 2 of this order.
  • 4. The issue of costs shall be determined along with the judgment on the merits of the review application.

[8] The first respondent’s counsel then did file written submissions as contemplated by my order quoted above, albeit only on 27 January 2023, having requested an extension. The applicant elected not to make further submissions. The submissions made by the first respondent have been properly considered by me in deciding this case.

[9] All the above being said, the current application before me concerns an application by the applicant to review and set aside an arbitration award by the second respondent in his capacity as an arbitrator of the General Public Services Sector Bargaining Council (GPSSBC), being the third respondent. This arbitration award is dated 15 November 2013 and was issued under case number GPBC 4864 / 2011. In terms of this arbitration award, the second respondent found that the dismissal of the first respondent by the applicant was substantively and procedurally unfair, and he then afforded the first respondent consequential relief in the form of reinstatement retrospectively to the date of his dismissal on 24 October 2011, with full back to pay to such date of dismissal. The second respondent directed that the first respondent report for duty on 6 January 2014. Dissatisfied with this arbitration award, the applicant then launched the current review application in terms of section 145 as read with 158(1)(g) of the Labour Relations Act (LRA) .

[10] As will be discussed below, this matter falls to be decided, not on the merits of the issue whether the dismissal of the third respondent by the applicant was substantively and procedurally fair, but rather on the basis that the second respondent had committed misconduct in the course of the arbitration proceedings of the kind that would vitiate such arbitration proceedings, no matter what the outcome on the merits of the dismissal itself may have been. Therefore, and in deciding this matter, I will now proceed to only summarize the facts relevant to deciding the applicant’s principal review ground relating to the misconduct of the second respondent, which is what it presented when the matter was argued before me.

Background facts

[11] As stated above, this matter has a long and rather unfortunate history. It all started on 24 October 2011, when the first respondent was dismissed by the applicant for misconduct. The first respondent pursued his dismissal as an unfair dismissal dispute to the GPSSBC, where the matter was then ultimately set down for arbitration over a number of days in the course of 2012.

. . . . .

The proceedings before Nieuwoudt AJ

[52] Before delating with the merits of the review application, it is necessary to first deal with the first respondent’s contentions that it is not competent to set the review application down for hearing on the merits thereof, because of what happened on 15 September 2021 before Nieuwoudt AJ. In his written submissions dated 26 January 2023, the first respondent once again repeats all the contentions made in the letter of 24 November 2022 referred to above. The first respondent however added that the review application was set down for a ‘rehearing before a new judge’ on 30 November 2022, by way of order from the Judge President. This latter statement is simply not true, as there was no such order by the Judge President. The matter was set down because the conditions for set down as contained in the order of Nieuwoudt AJ of 5 November 2021 had been fulfilled.

[53] The first respondent argued that its counsel was entitled not to appear in Court on 30 November 2022 by virtue of what was contained in the letter from the first respondent’s attorneys dated 24 November 2022. However, and in compliance with my order on 30 November 2022, and as stated, the first respondent did file the written submissions he was given the opportunity to make. I have also established that the applicant’s heads of argument on the merits of the review application, had been served on the first respondent as far back as October 2019, and filed in Court then. The submissions made by the applicant’s counsel in Court before me was principally based on the written heads of argument already filed by it.

[54] I am convinced, based on a consideration of all that had transpired in this matter as summarized above, that the first respondent had a clear stratagem. This stratagem was to avoid, at all costs, the review application being heard on the merits thereof. The clearly incorrect interpretation sought to be attached by the first respondent to the judgment of Nieuwoudt AJ, as specifically later amended by the learned Judge, is in line with this stratagem. This kind of situation cannot be allowed to perpetuate. With the application to dismiss the review application now having been finally disposed of, it is critical that the review application must now be finally decided, once and for all. I will next set out why the contentions of the first respondent to the contrary are simply unsustainable.

[55] Where it comes to the interpretation of Court orders, the applicable principles have been summarized by the Constitutional Court in Eke v Parsons as follows:

‘The starting point is to determine the manifest purpose of the order. In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.’

The Constitutional Court in Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others v Road Traffic Management Corporation and Others added the following considerations:

‘… As in the case of any document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary or qualify, or supplement it.’

[56] In Mashaba v Citibank Na SA Branch and Others , [2019] 11 BLLR 1265 the Court [per Sean Snyman AJ], having considered the above principles, held that:

‘… in addition to the aforesaid, there is in my view a further consideration. This consideration is that it must always be borne in mind that Court orders must grant effective relief, and the order as it stands must be capable of being construed so as to give effect to the purpose for which it was intended.

This is evident from the following dictum in SOS Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation (SOC) Limited and Others:

‘Court orders are intended to provide effective relief and must be capable of achieving their intended purpose. That must be the starting point in interpreting a court order …’

The Court added that:

‘… A determination of the legal context within which the words in an order are used is also required. …’

[57] In my view, the judgment of Nieuwoudt AJ of 26 October 2021, as varied on 5 November 2021, is sufficiently clear. Both these judgments must be read as a whole, and the language contained therein is clear. Even though it is true that Nieuwoudt AJ required the parties to argue the merits of the review application, the learned Judge actually made it clear that he did this only to cater for the scenario that if he decided that the first respondent’s point in limine not be upheld, he could then decide the merits of the review.

Therefore, and in simple terms, if the learned Judge refused the point, he would then issue judgment on the merits of the review. The learned Judge never ruled, and no such intention is apparent from his judgment, that if he upheld the point in limine, he would still at some unknown point in the future (which considering the history in this case may be years) simply hand down judgment on the merits. As matters turned out, the learned Judge upheld the point in limine. It follows that he was never seized with deciding the merits of the review application, and he never did.

[58] I have quoted the relevant extracts from the judgment of Nieuwoudt AJ earlier in this judgment. It is clear from these extracts that the learned Judge undoubtedly had in it in mind that the review application on the merits cannot be considered until such time as the application for leave to appeal the refusal of the dismissal application had been decided. In fact, the order granted on 5 November 2021 records that until the aforesaid has happened, ‘The review application should not be set down on the merits’. Such order surely makes it clear that the set down of the review application for hearing, on the merits thereof, is contemplated only once the leave to appeal application is disposed of.

[59] The first respondent, confronted with the clear language of the judgments of Nieuwoudt AJ, then seeks in indicate that the order as granted on 5 November 2021 did not ‘capture’ the actual decision made by Nieuwoudt AJ on 15 September 2021. In order to succeed with such a submission, extrinsic evidence about what was discussed or submitted in Court, and what the learned Judge said in Court, on 15 September 2021, would need to be considered.

However, and considering that the language used in the written order, which was contained a specifically amended judgment, is clear and unambiguous, such an extrinsic consideration is not permitted. The first respondent is specifically limited only to the judgments as they stand, where it comes to the interpretation thereof. And in this context, the import of the judgments is clear, being that Nieuwoudt AJ was not seized with the merits of the review application, because of the pending application for leave to appeal. Therefore, Nieuwoudt AJ never decided the merits of the review application, but instead ordered that it be set down for argument on the merits once the impediment of the application for leave to appeal is removed.

[60] If Nieuwoudt AJ had it in mind that he would simply issue a judgment on the merits of the matter, should the application for leave to appeal ultimately be unsuccessful, the learned Judge would have said so in clear terms. There is nothing in the order that he gave that can substantiate any such interpretation. The purpose of the order granted always was to defer the hearing of the review application on the merits until the application for leave to appeal had been concluded. In fact, and as illustrated by Nieuwoudt AJ himself in his judgment, if the first respondent ultimately won in the Constitutional Court which would lead to his dismissal application being upheld, that would be the end of the review application, without even having to hear the merits thereof. But if the application for leave to appeal failed, then the review application had to be considered on the merits thereof.

[61] I in any event find it questionable that the first respondent can adopt the position that the review application should not be argued on the merits because of what happened on 15 September 2021, when the very approach of his counsel on 15 September 2021 was to avoid the consideration of the merits of the review application by way of the point in limine.

To then seize upon the approach adopted by Nieuwoudt AJ to nonetheless require that the merits of the review to be argued just in case the point in limine was found to have no substance, in order to scupper the matter being set down for argument on the merits at a later stage because the point in limine succeeded, is simply opportunistic in the extreme.

[62] In all the above circumstances, the import of the judgments of Nieuwoudt AJ is in my view undeniable. The learned Judge was not seized with deciding the merits of the review application. The learned Judge only had to decide whether the hearing and determination of the review application should be stayed and should be deferred until such time as the Constitutional Court had decided the first respondent’s application for leave to appeal against the order refusing his application to dismiss the review. The learned Judge decided this issue in favour of the first respondent, and made an order accordingly.

In fact, as contemplated by the order of Nieuwoudt AJ itself, once the impediment of the pending application for leave to appeal was removed, the review application was ripe to be set down for hearing on the merits thereof. I would accordingly reject any contention by the first respondent that only Nieuwoudt AJ could decide the review application on the merits.

The review application was properly and competently set down before me for determination on 30 November 2022, on the merits thereof, and I am entitled to now and finally determine the same.

Test for review

[63] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, the Constitutional Court dealt with the test for review. Whilst accepting that the permissible grounds for review are articulated in section 145(2) of the LRA, the Court nonetheless said that: ‘… the reasonableness standard should now suffuse s 145 of the LRA …’, and concluded that the threshold test for the reasonableness of an award was: ‘… Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?…’.

[64] However, the judgment in Sidumo supra does not contemplate that the review grounds as specifically listed in Section 145(2)(a) of the LRA are somehow obliterated or negated. A review application can still succeed without a review applicant having to show that the outcome arrived at by the arbitrator is unreasonable, where the review grounds are founded on the text of Section 145(2)(a) itself.

In particular, if an arbitrator commits misconduct in the course of conducting the arbitration, it does not matter whether the outcome arrived at is reasonable or unreasonable, as the misconduct itself vitiates the proceedings, resulting in the award being set aside.

In National Commissioner of the SA Police Service v Myers and Others , the Court said the following:

‘… It should be noted, however, that the standard of review as formulated by the Constitutional Court in Sidumo does not replace the grounds of review contained in s 145(2) of the LRA. The grounds of review referred to in s 145(2) still remain relevant …’

[65] The nature of the determination where it comes to the review grounds as articulated in the text of Section 145(2), was summarized in Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others [2014] 4 BLLR 374 (LC) per Sean Snyman AJ] as follows:

‘… What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been.

Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity …’

[66] The following dictum in Naraindath v Commission for Conciliation, Mediation and Arbitration and Others [2000] 6 BLLR 716 (LC) is also relevant, where the Court [per MJD Wallis AJ] said:

‘… A failure to conduct arbitration proceedings in a fair manner, where that has the effect that one of the parties does not receive a fair hearing of their case, will almost inevitably mean either that the commissioner has committed misconduct in relation to his or her duties as an arbitrator or that the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.’

Analysis: the review

[67] In this case, and in my view, the undeniable facts speak for themselves. The arbitration proceedings between the applicant and the first respondent were convened before arbitrator Malebye as the duly appointed arbitrator of the GPSSBC. The arbitration actually commenced before her, and seven witnesses testified for the applicant in support of its case of misconduct against the first respondent. The testimony of its last (seventh) witness had not been completed, with such witness still being subject to cross-examination. No case had a yet been presented by the first respondent in his defence.

[68] From the record, it is apparent that the legal representatives of both the applicant and the first respondent were not satisfied with the manner in which arbitrator Malebye was conducting and presiding over the arbitration. In fact, and from the extracts of the record quoted earlier in this judgment, the first respondent’s counsel even described her as being inexperienced to the extent that she was unable to effectively manage the presenting of evidence in the arbitration. There had also been an earlier recusal application, which was refused by arbitrator Malebye. The upshot however came when an issue arose about the questioning of the applicant’s last witness, and the arbitrator was called upon to make a ruling. It is at this point that arbitrator Malebye mero motu recused herself from the arbitration, giving no motivated reasoning for this decision.

[69] This recusal then brought the second respondent into the picture, in a case where there was a pending hearing that was far from having been completed. Legally, the proceedings into which the second respondent stepped into were in the form of a trial (which is what arbitration really is) where witnesses had testified. It is an important part of the duties of an arbitrator, as presiding officer, to assess the credibility of the witnesses that may testify before him or her in that trial.

This assessment is done on the basis of the following dictum in SFW Group Ltd and Another v Martell et Cie and Others , where the Court said:

‘…the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf…, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. … a witness’ reliability will depend, apart from the other factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. …’ (emphasis added).

In my view is not possible for the second respondent to effectively discharge this duty on the basis of reading a transcript of what happened in the earlier trial proceedings before another arbitrator. But another concern must be that the quality of the evidence presented before arbitrator Malebye was in any event in doubt, especially considering the concerns raised by both parties.

[70] The second respondent, when he stepped into the arbitration, specifically asked the parties what their intentions were as to the further conduct of the matter. I have already set out in some detail the exchanges between the parties and the second respondent in this regard, as they appear from the transcript. From these exchanges, it is in my view clear that the applicant was of the view that the arbitration should start de novo.

Where it came to the first respondent, his position was less clear. The first respondent’s counsel gyrated between accepting that the arbitration should start de novo on the one hand, and then that the arbitration should simply proceed on the basis of considering the recording of the earlier arbitration, on the other. It also appeared from the addresses by both parties that there were difficulties with the evidence presented in the earlier arbitration, and the first respondent’s counsel was particularly critical in this regard. Pursuant to this toing and froing, the parties then stated that they would leave the decision on how to proceed with the matter in the hands of the second respondent. There was however no agreement between the parties to proceed with the matter on the basis of the recording of the earlier arbitration before arbitrator Malebye.

[71] The above being the undeniable reality, what was the second respondent as newly appointed arbitrator in this matter lawfully expected to do, in discharging his duties as arbitrator? In my view, he could do only one thing, namely to recommence the arbitration proceedings de novo. I reach this conclusion not only based on the facts in this case, but also based on what I believe to be sufficient legal precedent in this regard.

[72] It is my view that as a general rule, where an arbitrator recuses himself or herself from an arbitration that has not been completed and is still continuing, whether the arbitrator does so mero motu or on application by one of the parties, then that arbitrator and the arbitration proceedings are rendered functus officio, as that arbitration has ceased to exist.

As held in Zackey and Another v Magistrate of Benoni and Another :

‘… But it seems to me that it must amount to a decision that the court has no jurisdiction to hear the matter. Once that is decided the court could not be properly seized of the matter at all, and all the proceedings before that court prior to the recusation being accepted must logically become a nullity. In my view an accused successfully asking for recusation cannot demand any more than that the court records its recusation – it cannot claim any verdict at all. …’

[73] The only consequence that can follow from the above state of affairs that is that the proceedings must recommence before another arbitrator, de novo. If the newly appointed arbitrator simply continues with the arbitration in place of the recused arbitrator, it is in reality nothing else but such newly appointed arbitrator stepping into the shoes of the recused arbitrator and continuing the proceedings as if the new arbitrator was always the arbitrator. That, I believe, is not permissible in law, and would constitute a nullity.

In Punshon v Wise, NO and Others the Court held:

‘… The magistrate recused himself at the instance of the accused. As soon as he did so he became functus officio. If follows, therefore, that if there had been a demand for it, he could not, after he had recused himself, enter a verdict, yet the accused asks the Court to send the case back to the same magistrate for that purpose. It was because of the action of the accused that the present position has been created. The proceedings have become, in my opinion, a nullity in the circumstances.

I notice that in Gardiner and Lansdown (4th ed., p. 301) there is a statement that in the event of the death or the incapacity of the magistrate proving other than purely temporary – and here it is permanent – the matter must be heard de novo before another magistrate. …’

And in S v Suliman it was held that the above applies equally where the presiding officer has recused himself mero motu.

[74] An apposite example can be found in Director of Public Prosecutions, Northern Cape v Brooks .

In that case, the presiding Judge had recused herself, in circumstances where the admissibility of video and audio material gained in an entrapment still had to be decided, the evidence of one witness was incomplete, and another witness still had to testify. The Court accepted that the consequence of the recusal by the trial judge in these circumstances was that ‘… all the proceedings before her were nullified’, and a de novo hearing was the only option.

[75] An important reason why an arbitration de novo must be the only appropriate course of action in the case of the recusal of an arbitrator in incomplete arbitration proceedings, is aptly described by the following dictum in Mhlanga v Mtenengari and Another :

‘… The desirability of adopting such a course is self-evident. The second judicial officer would otherwise be deprived of the substantial advantage of seeing and hearing the witnesses for himself and of being able to compare their demeanour with that of the witnesses who testified in person before him. He would be steeped only partially in the atmosphere of the trial. …’

[76] In Mhlanga supra, the Court did say that in the event of it being agreed by the parties that the newly appointed presiding officer continue with the trial, in the sense that the transcript of the earlier proceedings be produced as evidence before him, then the presiding officer may be at liberty to do so. The Court however emphasized that in the absence of consent, the trial must commence afresh.

In Mondi Shanduka Newsprint (Pty) Ltd v Murphy the Court reasoned as follows as to why the Court considered it necessary for a hearing de novo in that particular case, which is also of relevance in casu:

‘… Given the number of conflicts of fact and expert opinion in this case, I am of the view that a judge would not be able properly to determine the matter upon a mere reading of the record.

It is also no answer to the above to suggest that one can simply apply the tests set out in Stellenbosch Farmers’ Winery for the resolution of disputes. That is because the first two aspects referred to by the learned judge of appeal are the credibility of the factual witnesses and their reliability. The very fact that they cannot be decided merely on paper is recognised in Plascon-Evans and provides a limitation on the ability of judges to make such decisions, except in special circumstances. …’

[77] In arbitrations before the CCMA or bargaining councils, the hearing itself is a dynamic process.

There are no pleadings to speak of and there is rarely a limitation of issues and articulation of cases by way of pre-arbitration proceedings and minutes.

A case may develop in the course of evidence being led. Parties are often not legally represented, and it is always the duty of any arbitrator appointed under the LRA to supervise the process and ensure that the necessary evidence is properly placed before him or her in substantiation of the cases as sought to be presented by the parties. Observations of the testimony of an earlier witness may well inform the arbitrator as to how a later witness should be treated when giving evidence. In my view, a proper trial (hearing) is undermined where there is nothing else but effectively a substitution of an arbitrator in the course of an incomplete arbitration proceedings.

As said in South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) :

‘… A trial is a dynamic process where the issues develop under the supervision of the presiding judicial officer. Oral testimony is led. Pleadings may be amended as the issues take shape. The nature of the process imposes duties of evaluation on the Judge or magistrate, who is required to gauge the personal attributes of the witnesses who are called and to hold an even hand between the contenders. …’

[78] It appears from the authorities that an agreement by the parties to continue with the matter based on the recording of the earlier proceedings, instead of conducting a hearing de novo, may be considered competent principally in the case where the actual proceedings (hearing) had concluded and all that remained is a verdict (decision).

As held in Standard Bank of South Africa Ltd v Sibanda :

‘In St Paul Insurance Co SA Ltd v Eagle Insurance Ink System (Cape) (Pty) Ltd 2010 (3) SA 647 (SCA) the Supreme Court of Appeal held that where, in a civil matter in which the hearing of evidence has been completed, the presiding judge dies before the delivery of judgment, the parties are entitled to agree that a transcript of the evidence, together with the documentary exhibits, be placed before another judge for the hearing of argument and the delivery of judgment …’

[79] In my view, it is unlikely that a recusal (withdrawal) of the presiding officer would arise at the stage where the proceedings (hearing) had already been fully completed and only a decision is outstanding. More than likely, the withdrawal of the presiding officer from the matter at this stage would happen where the presiding officer becomes deceased, or otherwise incapacitated to make a decision, after the proceedings had concluded.

It would then be quite understandable and actually practicable that the parties agree that another presiding officer simply decide the matter based on the record of the completed proceedings, even if it is not an ideal situation. This is because, simply put, the parties would have had no concerns with the conduct of the presiding officer in the course of the process and the manner in which evidence was presented or dealt under the auspices of that presiding officer, and the withdrawal of the presiding officer took place as a result of external factors other than those factors normally associated with an act of recusal.

[80] Where a recusal happens in the course of the proceedings based on a decision by the presiding officer, that is a totally different kettle of fish. As a general principle, a recusal in this context happens because the presiding officer is concerned that he or she would not be able to bring an unbiased and entirely independent view to bear in the proceedings.

Even though there exist no proper reasons given by arbitrator Malebye why she recused herself, it cannot be accepted that she did this based on some personal / subjective whim or consideration. It must be accepted that she did so for substantive and objective reasons, which, in the case of recusal, would be a lack of impartiality and / or independence.

As explained in S v Zuma and Another :

‘… It would appear to me that the same applies in cases where judicial officers decide suo motu to recuse themselves. There must be an objectively reasonable basis in law for doing so, quite apart from the judicial officer’s subjective and sometimes parochial views and feelings.

If it were otherwise, judicial officers would recuse themselves from hearing matters in respect of which they have some personal aversion, fear or foreboding, under the ruse of subjective reasons which may not be subjected to objective standards of scrutiny and this may yield the administration of justice and the esteem and dignity of the courts a shattering blow in the minds of the public. In that way, judicial officers may circumvent their duty to sit even in appropriate cases by employing the simple stratagem of recusing themselves suo motu for personal reasons when no objective or reasonable basis for so doing exists in law, logic or even common sense. …’

[81] There can be many reasons giving rise to a justified view of a lack of impartiality and / or independence on the part of a presiding officer, one of which could be the conduct of the presiding officer and / or his or her interaction with the parties and / or witnesses in the course of the hearing. It must therefore be accepted that where a presiding officer takes the material decision of recusing himself or herself, it must be because of a lack of the requisite impartiality and / or independence that has become apparent, or has arisen, in the course of the proceedings.

In this context, the following dictum in Bokoni Platinum Mines (Pty) Ltd v Moropane is apposite:

‘It has long been accepted by our courts that a decision maker should be unbiased and impartial. This common-law right is now buttressed by the fair trial rights in the Constitution. Impartiality is the cornerstone of any fair and just legal system and an impartial presiding officer in every judicial proceeding or tribunal is an absolute requisite of fairness.

The rule against bias requires the recusal of a presiding officer where there is bias or a reasonable perception thereof. Once the conduct of a judicial officer is tainted with bias, this vitiates the proceedings. The law reports are replete with criminal matters where the entire proceedings were rendered a nullity upon a presiding officer having recused him or herself.

The reason for this is straightforward. Unbiased adjudication is fundamental to a fair hearing: it is an irreducible prerequisite. Once an adjudicator recognises his or her own bias, recusal must follow. But so too does the consequence that the proceedings cannot stand. They are set aside because we do not ask whether a biased adjudicator came to a correct decision.

Rather, the law adopts the position that a biased adjudication will not be countenanced because it is so inimical to what fairness requires that the decisions rendered by it may not stand.

There is a dearth of authorities in respect of civil matters but there are no coherent reasons why civil litigants have a lesser claim to an unbiased hearing. Nor why the principle of nullity should not apply to them. …’

[82] Applying all the above principles to the undeniable facts as summarized above, I have little hesitation in accepting that the arbitration proceedings in this case were a nullity, because the second respondent did not commence the arbitration de novo, which he was compelled to do.

The moment arbitrator Malebye recused herself from what was still substantially incomplete proceedings, those proceedings became functus officio. As said, recusal contemplates a lack of impartiality and / or independence, which has the consequence of vitiating the entire proceedings. The second respondent as arbitrator should not even have asked the parties for their views on how to proceed with the matter going forward. He should have simply directed that the proceedings start de novo. His failure to have done so compromised the right of the parties to a fair hearing, and constituted misconduct in the arbitration proceedings as contemplated by section 145(2)(a) of the LRA.

[83] But even if the views of the parties as to how the matter was to proceed are considered, it is my view that the problem remains that the parties cannot agree to continue with the arbitration before the second respondent, as newly appointed arbitrator, based on the recording of what had happened in the earlier proceedings.

The reason for this is that the option to agree to continuation of the matter using the recording of earlier proceedings, is only available where the proceedings in which the evidence was led had been concluded, and all that remained was a decision (award).

The matter in casu was however far from complete, with issues regarding the admissibility of evidence and the appropriateness of questioning still being outstanding, a witness still being under cross examination, and a number of further witnesses still having to testify.

This took the option to agree to simply continue, off the table. In failing to appreciate this, the second respondent committed misconduct, and deprived the parties of fair hearing, especially considering his duties as an arbitrator in assessing and determining the evidence.

[84] In any event, a consideration of the record shows that there was no agreement that the matter continue on the basis of the previous recording, instead of starting the proceedings de novo. I am satisfied that the applicant’s counsel adequately expressed his concerns to the second respondent, to the effect that the matter had to start de novo.

The position adopted by the first respondent’s counsel is contradictory to say the least. At the very best, it can be said that the parties acquiesced in leaving the issue up to the second respondent to decide, each of them having expressed their respective views, which certainly cannot constitute an agreement to proceed concluded between them.

I also have some concerns about the second respondent in fact expressing, when the process then continued, that the parties had agreed to that course of action when that was certainly not the case.

One must also consider all of the concerns expressed by both parties where it came to how arbitrator Malebye conducted the earlier proceedings. In the absence of clear agreement on this issue, even assuming it was possible by the parties to so agree, there was no other option but to start the arbitration de novo.

[85] Ironically, there were indications much earlier in this matter itself that what happened with the second respondent simply proceeding with the arbitration, was irregular.

When Steenkamp J dealt with the stay application in his judgment of 5 February 2014 under case number J 16 / 14, he specifically mentioned that

‘… However, I do take into account that he process adopted by the Commissioner, namely to carry on with an arbitration before a new commissioner in circumstances where that Commissioner had not had the opportunity to consider the evidence of the previous witnesses in person but only on paper, may be open to attack on review …’.

Next, and when Molahlehi J dealt with the application to reinstate the review application in his judgment of 5 March 2015, the learned Judge said:

‘…I agree that the explanation proffered by the applicant is not satisfactory. However, I find that it is compensated for by the prospects of success. In this regard, it has not been disputed that the second respondent, in his consideration of the dispute, relied on the evidence which was presented before the first arbitrator and not him. It seems to me that there are excellent prospects that on review. In this regard it would appear that the Court is likely to find that the approach adopted by the second arbitrator amounted to gross irregularity …’ (sic).

For the reasons summarized above, these views are obviously correct.

[86] To try avoid the consequences of the above to the sustainability of the arbitration award, the first respondent takes aim at the grounds of review as they have been articulated in the applicant’s founding affidavit, which grounds, according to the first respondent, do not contemplate placing the case I have dealt with above, before this Court on review.

According to the first respondent, the applicant now relies on a new case of a lack of consent to simply proceed with the proceedings, which was never raised as a review ground.

It is of course trite that a review applicant must make out its case on review in the founding affidavit and in the supplementary affidavit in terms of Rule 7A(8), and the review applicant would then be bound to that case.

When properly considering what the applicant has actually raised as a basis for review in its founding and supplementary affidavits, it in my view undoubtedly contemplates a pleaded case that the second respondent committed misconduct by continuing with the arbitration instead of requiring that the arbitration recommence de novo.

This is exactly what this matter is all about, and the issue of consent to proceed with the arbitration is but one of the facets of such case. In short, the case of the applicant, described as succinctly as possible, is that when arbitrator Malebye recused herself, it was not legally competent for the second respondent as the newly appointed arbitrator to simply continue with the arbitration, and not start it de novo.

This case is properly before Court, and the first respondent’s contentions to the contrary have no substance.

[87] But even if it can be said that the applicant did not specifically raise a case of a lack of consent to continue with the arbitration, and this was a material issue that needed to be raised, it has to be stated that this Court has a supervisory duty over the CCMA and bargaining councils, their functions, and of the arbitration proceedings conducted under their auspices. If the applicant is prohibited from raising an irregularity of the kind that occurred in casu, then this supervisory duty would be compromised.

In ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others the Court [per Sean Snyman AJ] said:

‘… What the court is seised [sic] with in this matter is a review application, and the power exercised by the court in such an application is to conduct a review of not only the arbitration award issued by the arbitrator, but also of the arbitration proceedings giving rise to such an award. This is evident from the wording of s 145(2)(a) of the LRA, as read with the prescription relating to the powers of the court in terms of s 158(1)(g) of the LRA. The exercise of the review jurisdiction and functions by the Labour Court in respect of arbitration awards of the CCMA entails the exercise of an overall supervisory duty over such functions of the CCMA.’

The Court concluded:

‘… In my view, … the arbitration proceedings must be lawful, reasonable and procedurally fair, and that the Labour Court, in exercising its powers in terms of s 145 of the LRA, is duty bound to supervise the CCMA and the exercise of its arbitration functions, so as to ensure that this happens and this is indeed the case.’

[88] The first respondent also sought to rely on the provisions of section 138 of the LRA, as basis to justify the approach the second respondent had adopted. There is no merit in the reliance on this section. Section 138 was never intended to be used as a basis to justify a case where the right to a fair hearing has been compromised. Simply put, section 138 cannot be used to cover up that which is inherently unfair where it comes to the conduct of the arbitration proceedings.

This was aptly described in Ekurhuleni Metropolitan Municipality v SA Local Government Bargaining Council and Others as follows:

‘The injunction to conduct the proceedings with the minimum of legal formality may justify a decision by a commissioner to conduct proceedings with less regard for the formality that ordinarily characterises a trial in this court or any other civil court, but it is not an invitation or a licence to disregard the parties’ right to a fair hearing …’

[89] All being said, I am satisfied that when the second respondent decided to simply continue with the arbitration based on the recording of the proceedings before the previous arbitrator, he committed misconduct which deprived the applicant of a lawful and procedurally fair hearing. He should have directed, when taking over the matter, that it starts de novo. The situation was exacerbated by the fact that when the arbitration then continued, the second respondent recorded that the parties agreed to that process, when this was clearly not the case. This all constitutes misconduct by the second respondent as arbitrator as envisaged by Section 145(2)(a)(i) of the LRA. The effect of this misconduct is that the arbitration award itself is vitiated and falls to be set aside.

Conclusion

[90] Having regard to the conclusion I have come to above, there is no need to consider any of the other grounds of review raised in this matter. Nor is it necessary to consider any of the other issues raised by the first respondent. The simple reality is that the entire arbitration proceedings are a nullity, and the misconduct of the second respondent is such that it vitiates the entire arbitration proceedings and with it the arbitration award that he had made. The arbitration award of the second respondent is therefore reviewed and set aside.

[91] Having reviewed and set aside the arbitration award of the second respondent, where to now?

The answer is somewhat unfortunate, considering this matter first arose in 2011, the review application having been brought in 2013, and the matter now being more than a decade old and with the end not yet in sight. I accept that this Court has wide powers under section 145(4) of the LRA to make any determination it deems appropriate, where it has decided to review and set aside an arbitration award. I also accept that this matter is severally testing the fundamental requirement of the expeditious resolution of employment disputes.

That being said, the undeniable reality is that the applicant did not receive a fair hearing, which must always be paramount, and it was the misconduct of the second respondent that gave rise to such situation. No reliance can be placed on any of the evidence as it emerged from the vitiated arbitration proceedings, meaning that any substitution of the arbitration award with another determination is impossible. As a result, it would be inappropriate and unwarranted to substitute the award of the second respondent with an award that I would consider to be appropriate, and the matter needs to be conducted again in the GPSSBC, de novo, before another arbitrator.

As succinctly said in Sasol Infrachem v Sefafe and Others:

‘… The remedy employed must cure the irregularity; it must restore the right. Generally, nothing less than a complete rehearing would be required…’.

Costs

[92] In terms of section 162(1) of the LRA, I have a wide discretion where it comes to costs.

I am mindful of the dictum in Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others where the Court said:

‘In the labour context, the judicial exercise of a court’s discretion to award costs requires, at the very least, that the court must do two things. First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered. Second, it must apply its mind to the dictates of the fairness standard in s 162, and the constitutional and statutory imperatives that underpin it …’

[93] Considering all that happened in this case, I am of the view that the first respondent is deserving of a costs order against him.

The manner in which he conducted himself, whether it is on advice of his legal representatives or of his own accord, is deplorable. Had the first respondent simply applied a little focus and common sense, especially considering the earlier remarks made by Steenkamp J and Molahlehi J in their judgments in 2014 and 2015, it would have been obvious to him that further litigation should be avoided by simply agreeing to a consent order under in terms of Rule 17 that the arbitration award be reviewed and set aside and the matter be remitted to the GPSSBC for arbitration de novo.

If that was done, this matter would have been long since concluded. I also take a dim view of the manner in which the first respondent sought to interpret and apply the two judgments of Nieuwoudt AJ to suit his purposes, which interpretation was entirely unjustifiable and opportunistic.

[94] I am convinced that the first respondent must have been aware that applicant had good prospects of success on review where it came to the second respondent’s decision to simply continue with the arbitration instead of starting it de novo. It is for this reason, in my view, that the first respondent did all he could to scupper the review application, without the merits thereof having to be considered.

He did this by way of questionable attempts to execute the award, thereby harassing the applicant, the constant taking of points in limine, multiple dismissal applications, leave to appeals and objecting to set down dates.

This stratagem is unacceptable, and primarily the cause of the entire delay in this case, especially considering that the review application was ripe for hearing as far back as July 2014. Added to this, the applicant then had to spend time, effort and costs to defend against these attempts, which defence is conducted out of the already depleted public purse. These kind of attempts by a litigant to avoid dealing with the merits of a case is worthy of censure in the form of a costs order.

[95] This Court has consistently said that frivolous and unfounded litigation is deserving of costs orders. In fact, and in his judgment of 25 October 2019, Lagrange J made a punitive costs award against the first respondent. Further, and in the proceedings under case number J 16 / 14, Tlhotlhalemaje J also made a costs award against the first respondent. All these costs orders were motivated by the same kind of conduct on the part of the first respondent summarized above. The first respondent seems impervious to these clear warnings. He should pay the price for this misconception.

[96] In the end, the first respondent’s opposition to what was clearly a material irregularity, never had substance. The conduct of the first respondent throughout is nothing else but an abuse of process. The first respondent must now be told, in no uncertain terms, that exercising his right of access to the Courts must be done in a responsible manner and always in compliance with the rules and processes of this Court. The only way that the first respondent can learn this lesson is by way of an appropriate costs order.

[97] But what puts the icing on the cake, so to speak, is the manner in which the first respondent (through his attorneys and counsel) chose to deal with the Judge President of this Court.

It is entirely unacceptable for the first respondent to write to the Registrar on 24 November 2022 and make accusations such as the Judge President interfering with the matter so that the archiving thereof could be avoided, that he abused his judicial position, and that he acted unreasonably, without any evidence to substantiate such conclusions. This is especially so, considering that the first respondent was well aware that such complaints should be referred to the Judicial Service Commission (JSC) to be dealt with in that appropriate forum, which the first respondent did, and which complaints were rejected by the JSC.

In De Lacy and Another v SA Post Office the Court had the following to say:

‘An officer of the court may not without more convey to a court allegations or claims by a client when there is reason to believe that the allegations are untruthful or without a factual basis. This duty is heightened in circumstances where imputations of dishonesty and bias are directed at a judicial officer who ordinarily enjoys a presumption of impartiality. It behoves the legal representative concerned to examine carefully the complaints of judicial bias and dishonesty and the facts, if any, upon which the accusations rest.’

And as held [per Sean Snyman AJ] in Sepheka v Du Pont Pioneer (Pty) Ltd :

‘Any allegation of bias, especially on the part of a judge of this court, must be substantiated by a proper factual basis, must not be based on mere speculation and conjecture, and must be proved by the party alleging bias. …’

[98] In its heads of argument, the applicant has asked for a punitive attorney and client costs order against the first respondent. I must confess that I was sorely tempted to accede to this request, considering how the first respondent behaved. However, and as a gesture of mere goodwill, I have decided not to, even though it is deserving. Therefore, and at the very least, the first respondent is deserving of a costs order, and I will thus order him to pay the third respondent’s costs of the entire review application. This shall include the costs of two counsel.

[99] In the premises, I make the following order:

Order

1. The applicant’s review application is granted.
2. The arbitration award of the second respondent, arbitrator M J Matlala dated 15 November 2013 and issued under case number GPBC 4864 / 2011, is reviewed and set aside.
3. The dispute is remitted back to the third respondent, the GPSSBC, for arbitration de novo, on the merits thereof, before an arbitrator other than the second respondent.
4. The first respondent is ordered to pay the applicant’s costs, which shall include the costs of two counsel, where used.

Flynote:

Review application – application based on misconduct by arbitrator – s 145(2)(a) of LRA – principles considered – misconduct vitiates proceedings – whether outcome reasonable not relevant

Recusal – previous arbitrator mero motu recusing herself in course of arbitration – arbitration proceedings incomplete – new arbitrator continuing with proceedings – consequences and principles considered – de novo arbitration required and essential for fair hearing – new arbitrator simply continuing with arbitration proceedings constitutes misconduct contemplated by s 145(2)(a)

Recusal – new arbitrator recording agreement to proceed with arbitration – no such agreement exists – agreement to continue with arbitration where proceedings incomplete and where complaints made against previous arbitrator not competent in any event – arbitrator committed misconduct by proceeding with arbitration on this basis

Review application – failure of new arbitrator to recommence arbitration proceedings de novo constitutes misconduct – nature of misconduct vitiates proceedings no matter what the outcome may be – award reviewed and set aside and matter remitted back to GPSSBC for arbitration de novo

Judgment – interpretation of judgment – principles considered – no indication in earlier judgment by another Judge that review application will be decided only by that Judge on the merits without further hearing – prior judgments also all dispose of preliminary issues raised by first respondent – competent to finally decide review on the merits thereof pursuant to new set down notice

Review application – review application upheld – matter remitted back to GPSSBC for arbitration de novo

Costs – principles considered – conduct by first respondent justifies costs order against him – costs order made

Summary: