Court name
Labour Court Main Division
Case number
LC 86 of 2011
Case name
Purity Manganese (Pty) Ltd v Katjivena and Others
Media neutral citation
[2014] NALCMD 10
Judge
Smuts J










IN THE LABOUR
COURT OF NAMIBIA





CASE
NO: LC 86/2011





DATE:
26 FEBRUARY 2014





REPORTABLE







In the matter
between:





 


PURITY MANGANESE
(PTY) LTD.............................................APPELLANT





And





FABIOLA
KATJIVENA........................................................1st
RESPONDENT





THE LABOUR
COMMISSIONER...................................2ND
RESPONDENT





SAMUEL
UUSHONA........................................................3RD
RESPONDENT


 


Neutral
citation:        Purity Manganese
(Pty) Ltd v Katjivena (LC 86/2012) [2014] NALCMD 10 (26 February
2014)


 


CORAM: SMUTS, J


 


Heard on: 23
January 2014





Delivered on: 26
February 2014


 


Flynote: The
third respondent did not sign the referral form (LC 21) referring his
labour dispute to the office of the Labour Commissioner. The
applicant took this point at the commencement of the arbitration
proceedings but after conciliation had been completed. The arbitrator
dismissed the point. The applicant sought to set aside the award by
reason of the third respondent’s failure to have signed the
referral form. It alleged that the term ‘must’ in the
applicable rules resulted in the proceedings being a nullity. The
court rejected that approach and dismissed the application with
reference to the rule giver’s intention in making those rules
and because the third respondent’s participation in
conciliation and thereafter in the arbitration amounted to a
ratification of the referral.








ORDER








The application is
dismissed. There is no order as to costs.








JUDGMENT


 


SMUTS, J    








[1]      
At issue in this application to review and set aside an award of an
arbitrator made under s 89 of the Labour Act[1]
is whether the failure on a part of the referring party to sign the
referral notice renders the ensuing arbitration proceedings and the
award invalid and a nullity and liable to be set aside.


 


[2]       
This question for decision arises in the following way. The third
respondent was an employee of the applicant. He was dismissed on 4
May 2010 by the applicant after disciplinary process which had
commenced in March 2010. The third respondent referred the dispute
concerning his dismissal to the office of the Labour Commissioner
(second respondent in this application). The matter proceeded to
conciliation. It remained unresolved at the end of conciliation and
then proceeded to arbitration before the first respondent who had
also conducted or chaired the conciliation process.


 


[3]       
On 8 June 2011 the applicant received the arbitration award dated 6
June 2011. In terms of the award, the third respondent was found to
be unfairly dismissed and he was reinstated in his employment with
the applicant which was also ordered to make a payment, equivalent to
six months pay, for the period following his dismissal to
reinstatement on 1 July 2011.


 


The
referral


 


[4]       
In May 2010, the third respondent had referred the dispute of unfair
dismissal to the office of the Labour Commissioner by delivering a
completed form LC 21 and summary of the dispute. The LC 21 form was
however not signed by the third respondent himself. The form itself
does not provide for the signature of the referring party but his or
her representative. (‘Representative of the applicant.’)
This despite the wording of the rule to which I refer below. The
third respondent’s legal practitioner’s name was inserted
on the form where provision is made for the printed name and
signature of a representative of a referring party. The referral form
was accompanied by a request for legal representation at conciliation
or arbitration in terms of s86 (13) of the Act together with a
motivating statement in support of the request for representation.


 


[5]       
The Labour Commissioner referred the dispute to the first respondent
as arbitrator. As the dispute had not been conciliated, the
arbitrator was required under s86 (5) to attempt to resolve the
dispute through conciliation before proceeding with the arbitration.
The matter was postponed on a few occasions and conciliation took
place on 24 January 2011 without success. There were a few further
delays and the arbitration eventually proceeded on 6 April 2011 and
closing arguments were submitted on 15 April 2011.


 


[6]       
Both parties were legally represented at the arbitration proceedings.


 


[7]       
At the commencement of the arbitration proceedings, the applicant’s
legal representative, took the point that the third respondent had
not signed the referral form in accordance with rule 5 of the rules
relating to the conduct of conciliation and arbitration (the rules)
and further stated that neither the third respondent nor his legal
representative actually signed the form. Only the third respondent’s
legal practitioner’s name was printed at the place for the
signature on the form by the representative of an applicant.


 


[8]       
The point was thus taken that the institution of the referral was
irregular and that any further proceedings were irregular. The
arbitrator responded by directing that the proceedings should
continue and stated that the point had only been raised in the middle
of the proceedings. The arbitrator meant by this[2]
that although the point was taken at the commencement of the
arbitration, it had not been raised during conciliation which had by
then concluded.


 


[9]       
The record shows that the arbitrator did not permit any argument on
the issue although she invited a response to the point from the third
respondent’s representative after making the ruling. She was of
the view that the failure to have signed the form did not ‘make
an impact on the outcome of the procedures or on the case itself.’


 


[10]     
The applicant then timeously proceeded with an application to review
and set aside her award on the basis of this irregularity. In the
notice motion, the applicant also seeks an order for this court to
substitute its finding for that of the first respondent by holding
that the dismissal was fair. Quite how the second aspect would follow
from the first is not clear to me. This was not persisted with in
argument by Mr G Dicks who appeared on behalf of the applicant in
this application. He submitted that the award should be set aside.


 


[11]     
The question thus arises as to whether the failure on the part of the
third respondent to have signed the referral form LC 21 constituted a
vitiating irregularity and resulted in the proceedings being a
nullity, as was submitted by Mr Dicks. He did so with reference to
the rules relating to the conduct of conciliation and arbitration
before the Labour Commissioner (the rules). Before referring to the
rules, their statutory context is first  to be considered.


 


[12]     
Arbitration tribunals for the purpose of resolving labour disputes
are established under s85 of the Act. These operate under the
auspices of the Labour Commissioner and have jurisdiction to hear and
determine disputes. Of relevance for present purposes is s86 of the
Act which is entitled ‘Resolving disputes by arbitration
through Labour Commissioner.’ Section 86 (1) contemplates the
referral of disputes in writing to the Labour Commissioner or any
labour office. Subsections (3) to (7) provide:


(3)
      The party who refers the dispute in
terms of subsection (1) must satisfy the Labour Commissioner that a
copy of the referral has been served on all other parties to the
dispute.


(4)
       The Labour Commissioner must –


(a)       
refer the dispute to an arbitrator to attempt to resolve the dispute
through arbitration;



(b)       
determine the place, date and time of the arbitration hearing; and


(c)       
inform the parties to the dispute of the details contemplated in
paragraphs (a) and (b).


(5)
       Unless the dispute has already
been conciliated, the arbitrator must attempt to resolve the dispute
through conciliation before beginning the arbitration.


(6)
       If the conciliation attempt is
unsuccessful, the arbitrator must begin the arbitration.


(7)
       Subject to any rules promulgated
in terms of this Act, the arbitrator –


(a)       
may conduct the arbitration in a manner that the arbitrator considers
appropriate in order to determine the dispute fairly and quickly; and


(b)
       must deal with the substantial
merits of the dispute with the minimum of the legal formalities.’


 


 


[12]     
The rules are in the form of regulations made by the Minister under
his power to do so under s135 (2) (at) of the Act. Part 4 of the
rules concern the arbitration of disputes. It commences with rule 14
headed, ‘Referral of dispute arbitration.’ The relevant
portions of this rule are as follows:


14(1)
  A party that wishes to refer a dispute to the Labour
Commissioner for arbitration must do so by delivering a completed –


(a) 
. . .


(b) 
Form LC21


(2)       
The referring party must –


(a) 
sign the referral document in accordance with rule 5.’


 


[13]
Rule 5 of these rules (referred to in rule 14) deals with the signing
of documents in the following way:


5.
(1)   A document that a party must sign in terms of the Act
or these rules may be signed by the party or by a person entitled in
terms of the Act or these to represent that party in the proceedings.


(2) 
If proceedings are jointly instituted or opposed by more than one
employee, the employees may mandate one of their number to sign
documents on their behalf.


(3) 
A statement authorizing the employee referred to in subrule (2) to
sign documents must be signed by each employee and attached to the
referral document or opposition, together with a legible list of
their full names and address.’


 


[14]
Form LC 21 is attached to the rules. It is entitled ‘Referral
of dispute for conciliation or arbitration.’ It sets out a
number items which are to be completed such as the full name of an
applicant, physical address, postal address and other contact
details. It also then requires an applicant to identify the nature of
the dispute with reference to different possibilities posited on the
form. An applicant must also complete an item setting out the date on
which the disputes arose. At the end of section to be completed is a
place for signature below which is stated as follows:


Representative
of the applicant (print name and sign).’ Adjacent to this is
the place for an applicant to complete ‘position.’ The
date of the signing the form is to be completed and it is to be
directed to the office of the Labour Commissioner and to the other
parties to the dispute.’


 


[15]
Mr Dicks takes the point that the third respondent’s legal
representative, whose name was inserted on the LC 21 form, was not
entitled in terms of the Act or the rules to represent the third
respondent at that stage, namely when the form was completed and
lodged with the Labour Commissioner’s office. Mr Dicks points
out that the form was thus not completed as is required by the rules,
namely by a party. He also submitted that not only must the party
complete the form but the referring party must also sign the form
itself. It would appear from the form that the name of the legal
practitioner’s firm was merely inserted and that there was
furthermore no signature provided by the legal practitioner himself.


 


[16]
Mr Dicks argued that the use of the term ‘must’ in rules
14 and 5 meant that the requirement was peremptory. He submitted that
it follows from this construction that any failure to comply with
those rules would be visited with invalidity and a nullity. He
referred to the judgment of this court in
Springbok
Patrol (Pty) Ltd t/a Namibia Protection Services v Jacobs and
Others,
[3]
which had in turn referred to an earlier judgment of this court,[4]
in finding with reference to the requirement of referring parties to
sign referral documents in the context of joint referrals:


This
court has held that this requirement is not only a technicality and
must be complied with. The rule is set out in peremptory firms. In
this instance, the referral was not even signed by any employee but
by a union official.’


 


[17]
In the Springbok Patrol matter there was not a statement
attached to the referral by the employees. Nor was there an
attachment to the referral setting out the names of the individual
applicants. Indeed, there was evidence that several employees who
were supposed to form part of the group had distanced themselves from
the referral which a union representative had sought to bring on
their behalf. The court concluded that there had not been a valid
referral of the dispute in those circumstances.


 


[18]
In the Waterberg Wilderness Lodge matter, the referral also
purported to be of a joint nature. In that instance, only the
particulars of the first applicant were provided on the form which
was not signed but where an inscription ‘Menesia Uses plus
others’ was inserted. In the attached summary, the dispute is
referred to under a heading Menesia Uses plus 27 others and indicates
that the intention was to lodge a joint referral. It did however have
a handwritten list entitled ‘complainants names and numbers’
attached to it. The court found that Ms Uses properly lodged her
referral but that there was no proper dispute in respect of the other
complaints because they had not complied with the provisions of rule
5(1) by failing to sign form LC 21 themselves. Nor did they comply
with rule 5(3) because they had not signed a statement authorizing Ms
Uses to sign the documents on their behalf. But the court indicated
that those omissions could be rectified by the other 27 respondents
referring a dispute and applying for condonation for the late filing
of their referral.


 


[19]
Mr Dicks pointed out that rule 10 empower arbitrators to condone
non-compliance only in respect of referral documents or applications
being delivered outside the applicable time period prescribed in the
Act or in those rules. There is a further more general power of
condonation vested in arbitrators in rule 33. That rule has the
heading ‘Condonation for failure to comply with rules.’
But the rule itself only refers to time periods. It provides as
follows:


The
Labour Commissioner, conciliator or arbitrator may, on good cause
shown, condone any failure to comply with the time frames in these
rules.’


 


[20]
Mr Dicks rightly pointed out that the rules thus do not empower an
arbitrator to condone anything more than the failure to comply with
time periods. He submitted that it would not be competent for an
arbitrator to condone the failure to have signed a referral form as
there was no power in the rules accorded to arbitrators to do so. He
correctly submitted that arbitration tribunals, having been created
by the Act, would only have those powers expressly vested in them by
the Act and the rules, where the rules are authorized by the Act to
confer powers upon them. Mr Dicks also pointed out that there had in
any event been no application for condonation before the arbitrator
and that she had not dealt with the matter on that basis.


 


[21]
It would appear to me that the rule giver had intended to provide for
a general power of condonation for non compliance with the rules.
This is by virtue of the heading of rule 33. But the terms of the
rule however confine the power to condone to time periods prescribed
in the rules. Upon a consideration of the rules, it would be clear
that in most instances condonation would need to be sought in respect
of the time periods provided for and not in respect of other
requirements such as the requirement in question in this matter,
namely the signing of the referral form. The failure to provide for
the power of condonation in respect of this item could have very
harsh and unjust consequences if a point of this nature is taken
especially on appeal or in a review application where a complainant’s
referral has resulted in success in an award. This would appear to
have been an omission on the part of the drafter of the rules. The
usual approach of the courts where there has been
casus
omissus

in a text which does not cater for an eventuality (such as a power
for condonation in respect of non-compliance with rules not
containing time periods), is that a court would generally refuse to
fill a gap which the legislature has created. It would be for the
legislature to address the issue by way of amending legislation or in
this instance by amending the rules.[5]


 


[22]
But this is not the only inadequacy or anomaly in the rules. The form
LC 21 attached to the rules (the referral form provides for a
signature for an applicant’s representative and not an
applicant himself or herself. Yet the rules (rule 14 read with rule
5) provide in peremptory terms that a party must sign a referral.
This inaccurately prepared form is an invitation to confusion –
and grave potential prejudice if a court were to find that the
failure by a party to sign the form rendered it a nullity. The Act[6]
 precludes legal representation in conciliation on arbitration
proceedings except where an arbitrator has granted permission for
such representation where the parties agree or on special
circumstances being shown. A legal representative would thus not be
permitted to represent a party until and unless an application under
s86 (13) to do so were to be successful. That could only happen after
a referral form has already been submitted and an application for
legal representation has been successfully made.


 


[23]
Section 86 (12) of the Act however permits representation by union or
employer’s organization. But this subsection refers to
representation in arbitration proceedings in the context of
appearances and not in respect of the preceding referrals. Even if an
applicant’s representative on form LC 21 refers to a
representative under s86 (12) (which is by no means clear because of
the wording of s86 (12)), this does not clear up the massive
potential confusion created by the ineptly drafted form. Instead of
facilitating matters, its serves to create confusion and potential
prejudice to unrepresented applicants.


 


[24]
Mr Dicks argued that the usual consequence of failing to comply with
a rule cast in peremptory terms is invalidity. He accordingly
submitted that the failure on the part of the applicant to have
signed the form in conflict with the clear terms of rules 14 and 5
has resulted in the referral being a nullity and that the award made
by the arbitrator should be set aside as a consequence. He stressed
that the applicant had taken this very point at the commencement of
the arbitration proceedings, as I have already set out. But the
arbitrator stated that it was in the middle of the proceedings and
dismissed the point. Mr Dicks further pointed out that the arbitrator
furthermore did not permit argument in this issue. This is also
apparent from the record. She only permitted the third respondent’s
representative to say something about it after she had already made
her ruling. The arbitrator would appear to have considered that this
point was taken at a late stage in that the parties had already
participated in conciliation proceedings initiated by the referral
form where the arbitrator was involved as conciliator.


 


[25]
Although the arbitrator did not afford the parties the opportunity to
fully address the issue once it was raised and dealt with the point
in a summary manner, the question arises as to whether this failure
is a vitiating irregularity in those proceedings and resulted in a
failure to justice.


 


[26]
Whilst the use of the term ‘must’ may indicate an
intention on the part of the lawgiver or rule giver that a provision
is mandatory or peremptory and that non-compliance may result in
invalidity,[7] this is not the
end of the enquiry and may not necessarily arise. The labeling of
provisions as peremptory or directory and ascribing consequences by
virtue of that labeling exercise has, with respect, been correctly
characterized by the Supreme Court[8]
as an ‘oversimplification of the semantic and jurisprudential
guidelines pragmatically developed by the courts and distilled in a
long line of judgments to differentiate between – what they are
conveniently labeled as – peremptory and directory provisions.’


 


[27]
A very helpful survey and summary of applicable principles in
considering whether a term (such as ‘shall’ in that case)
is to have a mandatory meaning in the sense of a failure to comply
would result in a nullity is to be found in the recent matter of
Kanguatjivi
and Others v Shivoro Business and Estate Consultancy and Others
.[9]


[22]
In
Rally for Democracy and
Progress and Others v Electoral Commission of Namibia and Others

2010 (2) NR 487 (SC) at 513F – 514A the Supreme Court
contrasted (and disapproved of) the earlier inflexible approach on
statutory time limits as expressed in
Hercules
Town Council v Dalla
1936
TPD 229 at 240 ('. . . the provisions with respect to time are always
obligatory, unless a power of extending the time is given to the
Court') with '. . . later, more moderated approaches adopted or
endorsed by the courts (including the High Court which held that the
modern approach manifests a tendency to incline towards flexibility)'
(
DTA of Namibia and Another
v Swapo Party of Namibia and Others

2005 NR 1 (HC) at 11C). In this regard the Supreme Court approved of
the following extract from
Volschenk
v Volschenk
1946 TPD 486 at
490:





I
am not aware of any decision laying down a general rule that all
provisions with respect to time are necessarily obligatory and that
failure to comply strictly therewith results in nullifying all acts
done pursuant thereto. The real intention of the Legislature should
in all cases be enquired into and the reasons ascertained why the
Legislature should have wished to create a nullity.”





See
also Suidwes-Afrikaanse Munisipale Personeel Vereniging v Minister
of Labour and Another
1978 (1) SA 1027 (SWA) at 1038A – B.


 


[23]
In considering the question raised it is not helpful to focus merely
on whether the requirements of s 35 are peremptory or directory.
Although these are useful labels to use as part of the discussion
(Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA
430 (A) at 433H), the true enquiry is whether the legislature
intended the distribution of any assets in terms of the liquidation
and distribution account to be valid or invalid where the period for
inspection is shorter than 21 days. (CfEx parte Oosthuysen
1995 (2) SA 694 (T) at 695I). It should be remembered that —


 


It
is well established that the Legislature's intention in this regard
is to be ascertained from the language, scope and purpose of the
enactment as a whole and the statutory requirement in particular
(
Nkisimane
(supra at 434A);
Maharaj and
Others v Rampersad
1964 (4)
SA 638 (A)).' [
Oosthuysen
supra at 696A.]”


 


[24]
This principle was expanded in
Swart
v Smuts
1971 (1) SA 819
(A), when Corbett AJA (as he then was) said the following at 829E –
F:


 


In
general an act which is performed contrary to a statutory provision
is regarded as a nullity, but this is not a fixed or inflexible rule.
Thorough consideration of the wording of the statute and of its
purpose and meaning can lead to the conclusion that the Legislature
had no intention of nullity.' [My translation from the Afrikaans.]


 


[25]
In JEM Motors Ltd v Boutle and Another 1961 (2) SA 320 (N) at
328A – B the court expressed the issue in this helpful way:


 “.
. . what must first be ascertained are the objects of the relative   
provisions. Imperative provisions, merely because they are imperative
will not, by implication, be held to require exact compliance with
them where substantial compliance with them will achieve all the
objects aimed at.”


 


[28]     
Van Niekerk, J in that matter also referred to a summary of
guidelines on the issue approved of by the full bench:


[27]
In
DTA of Namibia and
Another v Swapo Party of Namibia and Others

supra at 9H – 10D the full bench noted with approval the
following stated in
Pio v
Franklin NO and Another

1949 (3) SA 442 (C) when Herbstein J summarised what the full bench
considered 'certain useful, though not exhaustive, guidelines' when
he said at 451:


In
Sutter v Scheepers
(1932 AD 165 at pp. 173, 174), Wessels JA suggested certain tests,
not as comprehensive but as useful guides to enable a Court to arrive
at that real intention. I would summarise them as follows:


(1)       
The word shall when used in a statute is rather to be considered as
peremptory, unless there are other circumstances which negative this
construction.


(2)       
If a provision is couched in a negative form, it is to be regarded as
a peremptory rather than a directory mandate.


(3)       
If a provision is couched in positive language and there is no
sanction added in case the requisites are not carried out, then the
presumption is in favour of an intention to make the provision only
directory.


(4)       
If when we consider the scope and objects of a provision, we find
that its terms would, if strictly carried out, lead to injustice and
even fraud, and if there is no explicit statement that the act is to
be void if the conditions are not complied with, or if no sanction is
added, then the presumption is rather in favour of the provision
being directory.


(5)       
The history of the legislation also will afford a clue in some
cases.”


 


[29]     
Van Niekerk concluded her thorough survey as follows:





[28]
In
Sayers v Khan
2002 (5) SA 688 (C) the following was stated at 692A – G (the
passage at 692A – D was recently applied in
Rally
for Democracy and Progress and Others v Electoral Commission of
Namibia and Others
supra at
516I):


 


The
jurisprudential guidelines relevant to the present case as
articulated by the South African Courts (particularly in cases such
as
Pio v Franklin NO and
Another
1949 (3) SA 442 (C)
and
Sutter v Scheepers
1932 AD 165 at 173 and 174) are usefully summarised by Devenish
(opcit at 231 – 4) as follows:





If,
on weighing up the ambit and aims of a provision, nullity would lead
to injustice, fraud, inconvenience, ineffectiveness or immorality and
provided there is no express statement that the act would be void if
the relevant prohibition or prescription is not complied with, there
is a presumption in favour of validity. . . . Also where 'greater
inconvenience would result from the invalidation of the illegal act
than would flow from the doing of the act which the law forbids', the
courts will invariably be reluctant — unless there is some
other more compelling argument — to invalidate the act.
Effectiveness and morality are inter alia also considerations that
the courts could use in the process of evaluation, in order to decide
whether to invalidate an act in conflict with statutory prescription.


 


(ii)       
The history and background of the legislation may provide some
indication of legislative intent in this regard.


 


(iii)      
The presence of a penal sanction may, under certain circumstances, be
supportive of a peremptory interpretation, since it can be reasoned
that the penalty indicates the importance attached by the legislature
to compliance. However, the courts act with circumspection in these
circumstances. . . .


 


(iv)      
Where the validity of the act, despite disregard of the prescription,
would frustrate or seriously inhibit the object of the legislation,
there is obviously a presumption in favour of nullity. This is a
fundamental jurisprudential consideration and therefore it outweighs
contrary semantic indications.”'


 


[30]     
Applying the approach and guidelines so usefully summarized by Van
Niekerk, J, I turn to the legislative purpose and context of the
rules. The statutory context of these rules, as already set out,  is
the conciliation and determination of labour and employment disputes
‘in a manner’ which the arbitrator considers appropriate
to determine the dispute fairly and quickly as is required by s86 (7)
(a). Arbitrators are also enjoined by s86 (7) (b) to deal with ‘the
substantial merits of the dispute with the minimum of legal
formalities.’


 


[31]     
The purpose of the rule requiring that referral documents are to be
signed, as set out in rules 14 and 5, would to be ensure that a
referral is authorized by a complainant. I enquired from Mr Dicks in
argument whether the applicant’s point would have been
addressed if the third respondent had merely signed the referral form
when the point was taken. He responded in the affirmative. That would
in my view appear to be correct, given the fact that the requirement
of the rules would then have been met, even though the referral
document had not been signed when it had been delivered. The failure
to sign can thus be cured in the course proceedings. This is because
of the doctrine of ratification in the context of the purpose of the
requirement. In view of the purpose of the requirement (of signature
to the referral form), it would be for the office of the Labour
Commissioner to reject a referral and avoid an unauthorized referral.
In that instance, a referring party would then be required by that
office to sign the form to ensure that the referral was authorized.
But once a referring party participates in conciliation and
thereafter in arbitration, without an objection to that
participation, it would seem to me that the requirement of a
signature had at that stage become redundant. This is because of the
fact that the participation by the referring party has resulted in a
ratification of the referral.


 


[32]     
I cannot accept that the rule giver could have intended by this rule
that the failure to have signed a referral form can, after
participation, result in an ensuing award being a nullity for that
reason alone. There is support for this proposition in a judgment by
a full bench in South Africa where there is also a requirement of a
signature to a referral form for conciliation, mediation and
arbitration.[10] A contrary
position had been taken previously by a single judge in an earlier
matter, holding that the failure to have signed a referral form
resulted in the CCMA in South Africa not having jurisdiction to
proceed with conciliation, mediation and arbitration.[11]


 


[33]     
The full bench in
ABC
Tesesales v Pasmans
[12]
after referring to a similar requirement in South Africa, however
overruled that earlier decision:


It
appears that the form concerned was filled in by the firm of
attorneys acting on behalf of Pasmans and that an articled clerk in
its employ signed the form as the ‘Party referring the
dispute.’ This I am prepared to assume, amounted to
non-compliance with rule 5.1. It is quite clear that after the
dispute had been referred for conciliation Pasmans and ABC
participated in the conciliation process and, thereafter, both
participated in the proceedings before the commissioner.


 


The
court’s duty in interpreting legislation is, of course, always
to establish the intention of the lawmaker, there is no difficulty in
discerning the intention of the words in rule 5.1 at the stage when
form 7.11 is handed to the CCMA. At that stage the intention is
clearly to provide for the CCMA to reject the form by reason of its
not having been signed by the referring party. In this way the
possibility of an authorized referral is avoided. However, the
referring party’s participation in the conciliation process
without objection renders the requirement of her signature redundant
at the stage. It follows that the rule-maker could not have intended
the rule to apply once such participation had occurred and with it,
the ratification of the referral. This approach, it seems to me,
gives effect to a purposive interpretation of the rule in accordance
with the approach approved of by this court in Business South
Africa v Congress of South African Trade Unions and Another

(1997) 18 ILJ 474 (LAC) at 479A-B and in Ceramic Industries Ltd
t/a Betta Sanitary Ware v National Construction Building & Allied
Workers Union
(2) (1997) 18 ILJ 671 (LAC) at 675G-H.


It
follows that with respect the Labour Court in Rustenburg Platinum
Mines Ltd (Rustenburg Section) v CCMA and Others
(1998) 19 ILJ
327 (LC); [1997] 11 BLLR 1475 (LC) erred in deciding in effect at
1479H-I that a referral which was not signed by the referring party
himself remained invalid beyond the stage of conciliation.’


 


[34]     
The arbitrator considered that the process, which had been commenced
by the referral form, had reached an advanced stage when the
arbitration started. This is because there had been conciliation
(which also requires a signed referral form in rule 13) which had
immediately preceded the arbitration and which had also been chaired
by her. The applicant and the third respondent had participated in
the preceding conciliation. It would appear that there be no point
taken as to the failure on the part of the third respondent to have
signed the referral form during conciliation. The point was then
taken, after conciliation had been contemplated (and failed) and the
arbitration had got under way. By that time, the referral –
necessary for conciliation – had been ratified.


 


[35]     
It thus seems to me on the facts of this matter that there had been
ratification on the part of the third respondent of his failure to
have signed the referral which had been in writing. It would seem to
me that once parties have participated in proceedings which are the
consequence of the submission and delivery of a referral form, then
it would not be open to the other protagonist to take the point of
the failure to have signed form because the question of authority
would then not arise. The position may be different in cases joint
referrals where parties have not signed or identified as was found in
Springbok Patrols which is to be confined to the facts of that
case and is also to be qualified by the views expressed in this
judgment. It would in my view be a point for the office of the Labour
Commissioner to take up before participation commences and for that
office to require compliance with the provisions of rules 5 and 14
for the matter to proceed in conciliation and arbitration. If that
office does not invoke these provisions, and reject a referral it may
then be for the protagonist to raise non-compliance with that rule
prior to participation in conciliation and arbitration as the case
may be, so that non-compliance can be rectified then. But once the
Labour Commissioner has appointed a conciliator and arbitrator to
conciliate and thereafter determine the dispute and who has assumed
jurisdiction to do so, and once the parties have participated in
those proceedings, then it would not in my view be open to the other
protagonist in the proceedings to take this point.


 


[36]     
This conclusion is re-inforced by examples which readily come to
mind. If Mr Dicks’ point is sound, then an employer would be
able to sit back at arbitration proceedings in the face of an
unsigned form and take the point on appeal, given the fact that, in
accordance with his argument, a nullity would result. But he stressed
that the facts of this matter are different because the applicant had
taken the point at the commencement of the arbitration proceedings.
Although the arbitrator did not fully articulate reasons for the
dismissal of that preliminary point in this way, it would seem to me
that it was rejected on the basis that the applicant had already
participated without objection in conciliation proceedings (which
also required a signed referral form) and it was thus not open to it
to take the point at a later that stage. There seems to me to be much
substance in that approach. I can find no fault with it, even if it
were not articulated in the way. This is akin to instances where
parties are precluded in the High Court Rules from applying to set
aside proceedings as irregular if that party has already taken
further steps in those proceedings.


 


[36]     
I accordingly conclude that, despite the language used by the rule
giver, the failure to have signed the referral form in this instance
where there had already been participation in conciliation, would not
result in the award being a nullity. I thus decline to grant the
application to review and set aside the award which was confined to
this ground only.


 


[37]     
The order I accordingly make is:





           
The application is
dismissed. There is no order as to costs.





DF
SMUTS





Judge



 


PPEARANCES


 


APPLICANT:
G Dicks



Instructed by GF
Köpplinger Legal Practitioners











RESPONDENT: JN
Tjitemisa



Instructed by
Tjitemisa & Associates










[1] 
Act 7 of 2011.




[2]
As is stated in the award.




[3]
LCA 70/2012, unreported, 31 May 2013.




[4]
Waterberg Wilderness Lodge v Uses and 27 Others LCA 16/2011,
unreported, 20 October 2011.




[5]
Joubert (ed) The Law of South Africa first reissue vol 25
part 1 at p380.


 




[6]
In s86 (13)




[7]
Schierhout v Minister of Justice 1926 AD 99 at 110.




[8]
In Rally for Democracy v Electoral Commission 2010 (2) NR 487 (SC)
at par [36].




[9]
2013 (1) NR 271 (HC) at par [22] – [25].




[10]
See ABC Telesales v Pasmans (2001) 22 ILJ 624 (LAC); CF
Rustenberg Platinum Mines v CCMA and Others (1998) 19 ILJ 327
(LC).




[11]
Rustenberg Platinum Mines Ltd v CCMA and Others (1998) 19 ILJ
327 (LC).




[12]
Supra at 626F-627E.