Mashigo v Safety and Security Sectoral Bargaining Council and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Prinsloo J |
| Judgment Date | 01 June 2022 |
| Citation | 2023 JDR 2451 (LC) |
| Hearing Date | 26 May 2022 |
| Docket Number | JR 269/2020 |
Prinsloo J:
Introduction
The Applicant seeks to review and set aside an arbitration award issued on 4 December 2019 wherein the Second Respondent (arbitrator) found his dismissal to be fair. The application for review was filed late and for this, the Applicant seeks condonation.
The Third Respondent (SAPS) opposed the application for review, but the condonation application is unopposed.
I have considered the application for condonation and applying the applicable legal principles, I am satisfied that a case has been made out for condonation to be granted.
Brief history
The Respondent employed the Applicant on 17 July 1991 and at the time of his dismissal, he held the rank of warrant officer. The Applicant was dismissed on 6 March 2012, pursuant to the outcome of a disciplinary hearing. He was charged with misconduct and found guilty on charges relating to assault and attempted murder, following a shooting incident on 24 September 2010.
The Applicant filed an internal appeal and on 16 July 2012, the Appeals Authority confirmed the finding of guilty as well as the sanction of dismissal. In August 2012, the Applicant referred an unfair dismissal dispute to the First Respondent (bargaining council). The presiding arbitrator found his dismissal substantively unfair and ordered the Applicant’s retrospective reinstatement with effect from 31 July 2012 and with backpay up to 4 May 2015.
The Respondent approached this Court to review the arbitration award, which application was successful. The arbitration award was reviewed and set aside and the matter was remitted to the bargaining council for a hearing de novo. The Applicant appealed against the Labour Court judgment and on 31 May 2018, the Labour Appeal Court (LAC) dismissed the appeal.
2023 JDR 2451 p3
Prinsloo J
The dispute was remitted to the bargaining council for a hearing de novo and an arbitration award was issued on 4 December 2019. The Applicant’s dismissal was found to be substantively fair. The aforesaid arbitration award is the subject of this review application.
The arbitration proceedings
Pursuant to the Court order which remitted the matter for a hearing de novo, the bargaining council had set the matter down for arbitration.
On 12 August 2019, the legal representatives of the Applicant and the Respondent signed a pre-arbitration minute. They agreed on inter alia the common cause facts and the issues the arbitrator has to decide. The parties specifically agreed to a common bundle, they admitted the correctness of the contents of the documents to be used as documentary evidence, that the parties would submit written submissions and that the record of the disciplinary hearing and previous arbitration proceedings ‘must be admitted as evidence of the arbitration’. The parties further agreed that no witnesses will be called.
In SA Breweries (Pty) Ltd v Louw, [1] the LAC was required to, inter alia, determine a complaint by the appellant that the Court a quo decided the case on factual issues not properly put before it on the pleadings, nor as refined in the pre-trial conference minute. On the issue of a pre-trial minute the LAC held that: [2]
‘The relationship between the pleadings and the pre-trial conference minute has been the subject of several judicial pronouncements [3] . In short, a minute of this sort is an agreement from which one cannot unilaterally resile. Also, a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a minute; if it does, it is necessary that that change go hand in hand with a necessary amendment. The chief objective of the pre-trial conference is to agree on limiting the issues
2023 JDR 2451 p4
Prinsloo J
that go to trial. Properly applied, a typical minute – cum – agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.’
It is common cause that in the first arbitration hearing the Applicant testified, as well as the four witnesses called by the Respondent.
In the arbitration award, the arbitrator recorded that the parties elected not to lead evidence, but tendered a joint bundle of documents consisting of the disciplinary hearing record and the first arbitration proceedings, which they agreed would constitute the record of this arbitration. The parties also filed written closing arguments.
The review application
The Applicant seeks to review...
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