Rand Refinery (Pty) Limited v Sehunane NO and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Zondo CJ, Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Rogers J, Theron J and Van Zyl AJ |
| Judgment Date | 21 August 2023 |
| Citation | 2023 JDR 3059 (CC) |
| Hearing Date | 21 August 2023 |
| Docket Number | CCT 204/22 |
| Court | Constitutional Court |
Rogers J (Zondo CJ, Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Theron J and Van Zyl AJ concurring):
Introduction
This application, which the Court is deciding on the basis of written submissions without an oral hearing, is for leave to appeal a judgment of the Labour Court, Johannesburg (Nkutha-Nkontwana J). In that judgment the Labour Court set aside an arbitration award in favour of the present applicant, Rand Refinery (Pty) Ltd (Rand Refinery), on the basis that the award had been improperly obtained as contemplated in
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Rogers J (Zondo CJ, Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Theron J and Van Zyl AJ concurring)
section 145(2)(b) of the Labour Relations Act (Act). [1] The Labour Court and Labour Appeal Court refused leave to appeal.
The fourth respondent, Mr Wanda Maseko, was employed by Rand Refinery in its barcasting department. During 2017, he and a number of other employees faced disciplinary charges arising from the theft of gold bars. Mr Maseko’s disciplinary hearing was held in May 2017. He was dismissed. He referred an unfair dismissal dispute to the second respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA). At the ensuing arbitration before the first respondent, Mr Matome Victor Sehunane, one of Rand Refinery’s witnesses was Mr Phumudzo Sydney Mulafhi, at that time employed by the company as Manager: Security Investigations. The arbitrator found that Mr Maseko’s dismissal was fair and dismissed his unfair dismissal claim.
Litigation history
In March 2018, Mr Maseko and his trade union, the National Union of Metalworkers of South Africa (NUMSA), which is the third respondent, launched an application in the Labour Court to have the award reviewed and set aside. In what follows, my references to Mr Maseko include NUMSA unless the context indicates otherwise. Relying on section 145(2)(a) of the Act, [2] Mr Maseko alleged that the arbitrator had committed a gross irregularity by accepting hearsay evidence and making
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Rogers J (Zondo CJ, Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Theron J and Van Zyl AJ concurring)
a decision which no reasonable decision-maker could have made. Rand Refinery opposed the application. It was eventually enrolled for hearing on 14 October 2021.
On 21 September 2021, some three weeks before the scheduled hearing, Mr Maseko delivered an application in terms of rule 11 of the Rules of the Labour Court [3] in which he sought leave to supplement his case by adding, as a ground of review, that the award had been improperly obtained as contemplated in section 145(2)(b) and by adducing new evidence. This new evidence took the form of the founding, answering, replying and supplementary answering affidavits in litigation between Rand Refinery and Mr Mulafhi in the High Court, Limpopo Division, Polokwane (High Court).
The background to the High Court litigation is this. In March 2019, Rand Refinery dismissed Mr Mulafhi on grounds of incapacity after he failed several routine polygraph tests. Mr Mulafhi referred an unfair dismissal dispute to the CCMA which led to a settlement agreement in May 2019. In terms of this agreement, Mr Mulafhi was to cooperate with Rand Refinery in all pending security matters and to return all documents on investigations and disciplinary cases.
According to Rand Refinery, in May 2020 Mr Mulafhi began a smear campaign against the company, its attorneys and its labour law consultants. In September 2020, Rand Refinery launched an interdict application in the High Court to put a stop to this. An interim order was granted and extended from time to time. In October 2020, Mr Mulafhi – at that time unrepresented – filed an opposing affidavit, to which Rand Refinery replied. In his opposing affidavit, Mr Mulafhi alleged improprieties by Rand Refinery and its advisers in connection with disciplinary hearings.
In August 2021, Mr Mulafhi consulted attorneys for the first time on the High Court litigation. These attorneys were also Mr Maseko’s attorneys in the review case. They came on record for Mr Mulafhi, and towards the end of August 2021 Mr Mulafhi
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Rogers J (Zondo CJ, Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Theron J and Van Zyl AJ concurring)
delivered an application in the High Court for leave to file a supplementary affidavit. The supplementary affidavit expanded on the alleged improprieties in Rand Refinery’s disciplinary processes. Mr Mulafhi alleged, among other things, that he was cajoled into giving false evidence against employees, including Mr Maseko.
It was against this background that Mr Maseko, on 21 September 2021, applied to introduce into the review application all the papers filed to date in the High Court litigation. It is common cause that Rand Refinery filed a notice to oppose Mr Maseko’s rule 11 application. It is also common cause that on 12 October 2021 Rand Refinery’s attorneys served the company’s opposing papers on Mr Maseko’s attorneys by email. In this affidavit, Rand Refinery opposed Mr Maseko’s application to supplement his case and also responded to the allegations made in Mr Mulafhi’s affidavits. I shall return, presently, to the question whether Rand Refinery’s opposing affidavit was filed with the Labour Court.
The Labour Court’s judgment
The review application was argued virtually on 14 October 2021. On 19 November 2021, the Labour Court delivered judgment. The Labour Court granted Mr Maseko leave to amend his notice of motion and to file the further papers; reviewed and set aside the arbitration award; remitted the case to the CCMA for hearing afresh before a different commissioner; and ordered Rand Refinery to pay costs. In the course of the Court’s reasoning, the Judge said that, despite having filed a notice of opposition, Rand Refinery “failed to file any answering papers”. After summarising Mr Mulafhi’s allegations in the High Court litigation and quoting from the Supreme Court of Appeal’s judgment in Mkhize, [4] the Judge said that the Court could not “turn a blind eye” to the assertions of Rand Refinery’s main witness, Mr Mulafhi. The Judge concluded:
“In sum, it follows that the impugned award stands to be reviewed and set aside as it had been improperly obtained due to the prima facie proof that the arbitration proceedings were tainted by the perjured evidence of Mr Mulafhi. Of course, these
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Rogers J (Zondo CJ, Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Theron J and Van Zyl AJ concurring)
allegations must be tested. Hence this matter must be remitted to the CCMA for a hearing de novo before a Commissioner other than the first respondent. However, the enquiry will be limited to the issue of substantive fairness.”
In awarding costs against Rand Refinery, the Judge said that Rand Refinery was ill-advised in persisting with its opposition “despite the fact that it has no answer to the serious allegations contained in the supplementary affidavit”. A sensible move could have been to consent to the order sought by Mr Maseko, said the Judge.
Was the opposing affidavit filed?
Why did the Judge think that Rand Refinery had not filed an opposing affidavit? This Court sought submissions on that question, among others. Given that Rand Refinery filed a notice of opposition and served its opposing affidavit on Mr Maseko’s attorneys two days before the hearing, it is unlikely that Rand Refinery would not have filed the opposing papers with the Labour Court. According to Rand Refinery’s deponent in this Court, the opposing papers were indeed filed and were part of the paginated record. In supposed confirmation of this fact, the deponent attached...
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