Court name
Labour Court
Case number
80 of 2010
Title

Purity Manganese (Pty) Ltd v Katzao and Others (80 of 2010) [2011] NALC 19 (11 July 2011);

Media neutral citation
[2011] NALC 19
Coram
Damaseb JP





REPUBLIC OF NAMIBIA






REPUBLIC
OF NAMIBIA


Reportable”





CASE
NO. LC 80/2010


IN
THE LABOUR COURT OF NAMIBIA





In
the matter between:





PURITY
MANGANESE (PTY) LTD
…..........................................................
APPLICANT





and





TJERIPO
KATZAO
….......................................................................1ST
RESPONDENT


PHILIP
MWANDINGI
…....................................................................2ND
RESPONDENT


THE
LABOUR COMMISSIONER
….................................................3RD
RESPONDENT


THE
MINISTER OF LABOUR
….......................................................4TH
RESPONDENT








CORAM:
DAMASEB, JP








Heard:
20TH JUNE 2011


Delivered:
11TH JULY 2011


________________________________________________________________





Summary:
True purpose of a conciliation proceeding under Part B of
chapter 8 of the Labour Act. Such procedure not to be confused with
arbitration under Part C of chapter 8
.





Facts:
A conciliator was designated in terms of s 82 (3) of the Labour Act
in order to conciliate a dispute. After hearing the version of the
employee who referred a dispute of unfair dismissal to the Labour
Commissioner in terms of s 82(7) for conciliation, and in the absence
of the employer who had notice of the conciliation meeting but failed
or neglected to attend, conciliator purported to make a binding and
enforceable determination in terms of s 83 (2) (b). On the strength
of that determination the employee sought and obtained what purports
to be a compliance order in terms of s 90.





Held:



  1. That
    a conciliator acting under Part B of chapter 8 is not a court
    or tribunal within the meaning of article 12 (1) (a) of the
    Namibian Constitution. A conciliation proceeding lacks the trappings
    of a court or tribunal and is an informal avenue for resolving
    labour disputes.


  2. To
    the extent that the conciliator by his determination, purportedly
    under s 83(2) (b), sought to determine the civil rights and
    obligations of the parties, he usurped the powers of a court
    or tribunal and thus acted ultra vires.


  3. A
    conciliator has no competence to make a legally binding award
    against a party against whom a dispute has been reported and who
    fails to attend a conciliation meeting. If such party fails to
    attend, a conciliator remains seized of the matter and may call for
    further meetings if he or she is satisfied that there are prospects
    of a settlement; and if satisfied that there is no such prospect, or
    the 30-day period runs out in the meantime, he or she must refer the
    dispute to arbitration.


  4. A
    compliance order in terms of s 90 of the Labour Act is only
    competent in respect of an arbitration award made under Part C of
    chapter 8 of the Labour Act.


  5. The
    determination by the conciliator declared null and void and
    accordingly set aside, including the compliance order issued by the
    labour inspector purportedly in terms of s 90 of the Labour Act.


  6. Dispute
    remitted to the conciliator to either proceed with the conciliation
    or to determine the matter in accordance with law, guided by this
    judgment.













JUDGMENT





DAMASEB,
JP:
[1] This is an application for review under the Labour
Act, No: 7 of 2007. Mr Van Vuuren appears for the applicant while Mr
Chanda appears for the 2nd and 3rd respondents.
The 1st and 4th respondents do not oppose the
application.





[2]
Three issues fall for decision in this case. The first is whether the
Applicant had notice of a conciliation meeting that took place before
2nd Respondent on 30 March 2010. On the assumption that
the Applicant had notice of the 30 March meeting but defaulted to
attend, the second issue is the validity of a determination made by
the 2nd Respondent on 30 March 2010 in the absence of the
Applicant. A related issue, even if I should find that the Applicant
had notice of the 30 March 2010 meeting, is whether it was competent
for the 2nd Respondent to serve a notice of the
conciliation meeting on either party in the first place.





[3]
The first question involves a factual determination, while the second
implicates the interpretation of Parts B and C of chapter 8 of the
Labour Act. As far as the factual disputes are concerned, these being
motion proceedings, I must accept the version of the Respondents
unless it is farfetched and can be rejected merely on the papers.





[4]
After the record of the proceedings sought to be reviewed was filed,
the Applicant amended its notice of motion which now reads:






1.
Condoning applicant’s non-compliance with the Rules of Court,
in so far as it may be necessary.



2.
Reviewing and setting aside the proceedings conducted by the second
respondent on 30 March 2010 and the subsequent “Determination”
made by the second respondent on 1 April 2010.



3.
Declaring the “Determination” dated 1 April 2010 of the
second respondent and any purported decision taken by second
respondent in this matter null and void.



4.
Declaring the “Determination” dated 1 April 2010 of the
second respondent null and void for non-compliance with the
provisions of section 86(4), 86(5), 86(6) of the Labour Act, Act 11
of 2007, as read with the provisions of rule 6, 20(1), 27 and 34 of
the Rules for the conduct of Conciliation and Arbitration.



5.
In the alternative to prayers 1, 2, 3 and 4 above, that the
“Determination” of the second respondent dated 1 April
2010 and any purported decision taken by second respondent in this
matter be declared null and void as being in conflict with Articles
12 and 18 of the Namibian Constitution.



6.
Reviewing and setting aside second respondent’s decision not to
grant applicant’s application for the reversal of his
“Determination” dated 1 April 2010.



7.
In the alternative to prayer 6 above, that second respondent’s
refusal to grant applicant’s application for the reversal of
second respondent’s “Determination” dated 1 April
2010 be declared null and void as being in conflict with Articles 12
and 18 of the Namibian Constitution.



8.
That in the event of this application being opposed, such opposing
party be ordered to pay the costs of this application, jointly and
severally, if applicable, only if the above Honourable Court deems it
appropriate within the circumstances; and



9.
Granting such further or alternative relief as this Honourable Court
may deem meet.






CONDONATION



[5] Prayer 1 of the
notice of motion is aimed at remedying the Applicant’s alleged
failure to launch the review application within 30 days after an
award was served on it. It appears to me that the acceptance by the
applicant that it was out of time in launching the review application
is based on a misreading of the Labour Act. It is common cause that
the review application was filed 30 days after the determination by
the 2nd respondent. Given that, as will soon become
apparent, the determination made by the 2nd respondent was
not enforceable and was not an arbitration award as erroneously
assumed, the labour inspector’s compliance order, presumably in
terms of s 126 of the Labour Act, was a nullity and it was not
incumbent on the applicant to have appealed it to this court within
30 days as required by s 89 (2) or s 126(3). It was conceded in
argument that the step initially taken by the Applicant in applying
to the 2nd Respondent to reverse his determination of 1
April 2010, was inept and that the relief sought in prayers 6 (and in
the alternative, 7) seeking to have reviewed and set aside the 2nd
Respondent’s refusal to reverse his determination of 1 April
2010, is no longer being pursued. The application for review was
launched on 21 October 2010 – this after the Applicant had
approached this Court on an urgent basis on 5 August 2010 in order to
arrest a notice to comply with the 1 April 2010 determination.
Although Parker J dismissed Applicant’s attempt to stay the
notice to comply, he allowed the Applicant to, not later than 1
November 2010, “bring appropriate proceedings challenging
the ... determination of 1 April 2010.”
The application was
launched before the expiry of the deadline set by Parker J and that
alone should dispose of the matter.






Common cause facts
relative to the referral of a dispute of unlawful dismissal






[6] The 1st
Respondent, together with a co-employee, Fussy Katjizemine, was
dismissed by the Applicant following a disciplinary enquiry. On 21
September 2009, 1st Respondent referred a dispute for
conciliation or arbitration with the 3rd Respondent,
claiming unfair dismissal. The joint dispute of 1st
Respondent and Katjizemine was set down, with notice to the
Applicant, for conciliation before another conciliator for 5 November
2009. At Applicant’s request, the disputes were separated.






[7] Following separation
of the disputes, the 1st Respondent on 16 February 2010,
again referred the dispute to the 3rd Respondent. On 1
March 2010, the 2nd Respondent was designated by the 3rd
Respondent to conciliate the dispute between Applicant and 1st
Respondent. It is not in dispute that the 3rd Respondent
issued a "notice of conciliation or arbitration in terms of
section 82(a) (c) or 86(4) (c) of the Labour Act
” and in
terms thereof designated the 2nd respondent as
conciliator.






Disputed facts
relative to applicant’s failure to attend conciliation meeting



[8] The Applicant denies
that it was served with the notice issued by the 3rd
Respondent and alleges that, consequently, it was not aware that the
matter was set down for conciliation on 30 March 2010. It claims that
the matter was therefore heard in its absence on 30 March 2010 when
the 2nd Respondent, after hearing the evidence of 1st
Respondent, entered a ‘determination’ which is the
subject of the present review application. The following critical
averments are made on this score in an affidavit deposed to by one
Asi Eretz on behalf of the Applicant:






On
30 March 2010 the second respondent proceeded to hear the dispute in
the absence of applicant. Applicant did not attend the proceedings
since no notice had been provided to it of the date, time or venue. I
am advised and respectfully submit
that
second respondent could never have conducted any conciliation or
arbitration without the applicant having been properly notified.







On
30 March Mr Harold Kavari, applicant’s Human Resource
Consultant after 14h30, by chance discovered that the matter
had been set down for hearing during that morning. He had a
discussion with second respondent and subsequently wrote a letter to
explain his absence. In this regard I refer to a copy of the said
letter annexed hereto and marked as “AE9”, as well as Mr
Kavari’s explanation thereof.”






[9] Kavari’s letter
in question (dated 30 March 2010) is addressed to the 3rd
respondent and states the following:







We
first like to apologize for
failing
to attend the conciliation board scheduled for today 30 March 2010

before
Mr Phillip Mwandingi, at 09H00. There were an oversight and
I
thought this hearing was at 14h30
,I
meet the Clerical Assistant Ms Martha and she indicated that the
matter were scheduled for 09H00, Mr Mwandingi was not at office until
15H00 when I left the office. We are prepare to listen to the matter
and to resolve the matter through the dispute resolution mechanism in
place, therefore we would like to request that since this matter was
suppose to be conciliated at first, another day can be set down by
your office at any given time. Against the above
we
would like to apologize for any inconvenience cause by me failing to
attend the hearing as set down
.’
(Emphasis
added)






[10] Kavari’s
letter speaks for itself and no amount of spin or
ex
post facto
rationalisation
can justify the suggestion that he in fact did not know about the 30
March conciliation meeting. I find the conduct by the applicant to
try and wriggle out of the clear acceptance in this letter that they
knew about the conciliation meeting reprehensible. Besides there is
also evidence to show that the 2
nd
respondent faxed through a document to
the applicant which he says could only have been the notice. The 2
nd
respondent therefore established that
the applicant knew about the date of the conciliation meeting but
failed to attend.






Could the 2nd
respondent have served the notice on the parties?



[11] The Labour Act
empowers the Labour Commissioner (3
rd
respondent) to serve process.1
The 2nd
Respondent is a designated official2
of the 3rd
Respondent who, under the Labour Act,
is vested with the primary responsibility to conduct conciliation and
arbitration.
3
If the argument holds that it offends
Article 12
4
of the Namibian Constitution for the
2
nd
Respondent to serve process when at
the end of the day he may have to decide that very question, it must
also hold for the Labour Commissioner. I see nothing inherently
unfair in the 2
nd
Respondent (qua
designated conciliator of
3
rd
respondent) serving process on a party
to a dispute in a conciliation proceeding. In view of the conclusion
to which I have come, that the Part B, chapter 8 conciliation
procedure produces no binding legal effect, I find it unnecessary to
decide whether or not the evidence received by the second respondent
should have been under oath.









Was it competent for
the 2nd respondent to make a binding determination qua
conciliator with binding legal force?






[12] On 1 April 2010, the
2nd respondent issued a determination duly signed by him
as ‘Arbitrator’. In it he states the following,
amongst others:






In
the absence of any input by the respondent or its representative. I
have to accept what was said by the applicant as the probable true
version of what transpired. I therefore found that the dismissal of
the applicant was substantively unfair. I subsequently issue the
following order:



AWARD:
The respondent Purity Manganese (Pty) Ltd must reinstate the
applicant, Tjeripo Kazao, in the position previously occupied by him
with immediate effect, (1
st
April 2010). Furthermore, the respondent must pay all salaries that
were due to the applicant from the date he was unfairly dismissed to
date this Award is issued being the T’ April 2010, as if he was
never dismissed, made up as follows: N$ 1880.00 X 9 months = N$ 16
920. 00 .Payment to be made at the Office of the Labour Commissioner
by not later than the 20
th
April 2010, alternatively proof that such payment was made directly
to the applicant must be forwarded to the arbitrator before that
date. This Award is final and binding on both parties.’






Armed with this ‘final
and binding
award,
the first respondent on 29 June 2010 applied for its enforcement as a
result of which – and this is common cause - the labour
inspector purported to issue a compliance order in terms of s 90 of
the Labour Act.
5



What is the true
purpose of a conciliation proceeding?



[13] It is argued on
behalf of the 2
nd
and 3rd
respondents that a determination made
in terms of s 83(2) (b) is binding and enforceable and that if it
were not s 83 (2) (b) would be rendered purposeless. It was also
argued that the
Act
and Arbitration Rules would not make provision for a determination to
be reversed if it was not binding and enforceable’.
It
is further argued on behalf of the 2
nd
and 3rd
respondents that after the
determination of 1 April 20101 ‘
it
remained for the applicant to have recourse to the Act and
Arbitration Rules to apply to have the determination reversed
.’
6
The respondents’ counsel
confirms that the determination was made in terms of s 83 (2) (b).






[14] The applicant’s
counsel argued that the 2nd respondent, acting as
conciliator was not competent to make a binding determination and
that whatever award he made is unenforceable. He argued further that
the absence of an avenue in Part B for the revision or appeal against
a determination made in terms of s 83(2) (b), is an indicator that
any such determination is not binding and not enforceable but only
advisory.






[15] Chapter 8 of the
Labour Act deals with ‘
prevention
and resolution of disputes
.
Part B of that chapter deals with ‘
conciliation
of disputes
7
whereas Part C deals with ‘arbitration
of disputes
.8
In both Parts the Labour Act provides
for the method of appointment of a
conciliator
(
in case of conciliation)
and an
arbitrator
(in case of arbitration) - ‘the
functionary’- and spells out the procedure each functionary
must follow in the performance of their respective functions. It also
sets out the powers that the functionary (
qua
conciliator or arbitrator) enjoys. The
two roles (of conciliator as opposed to arbitrator) are separate and
distinct as will soon become apparent. By referring to himself as
'
arbitrator'
in his determination of 1 April 2010, the 2
nd
respondent failed to appreciate that
and that is where he fell in error.






[16] It is common cause
that the referral of the dispute initiated by the 1
st
respondent, to the 3rd
respondent who then designated 2nd
respondent, was proper. Upon the
designation of the 2
nd
respondent as conciliator, Part B of
chapter 8 was engaged. In terms of s 82 (9) of Part B:







The
Labour Commissioner, if satisfied that the parties have taken all
reasonable steps to resolve or settle the dispute, must –




  1. refer the dispute to a
    conciliator to attempt to resolve the dispute through conciliation."








Once a dispute is thus
referred, subsection (10) of s 82 kicks in and it states:



'... the conciliator
referred to in subsection (9) must attempt to resolve the dispute
through conciliation within -




  1. 30 days of the
    date the Labour Commissioner received the referral of the dispute;
    or



  2. Any longer period agreed
    in writing by the parties to the dispute.’ (My emphasis)







In turn, subsection (11)
states:



Subject
to the rules determined in terms of this Act, the conciliator –



(a) must determine how
the conciliation is to be conducted; and



(b) may require that
further
meetings9
be held within the period contemplated
in subsection (10).’ (My emphasis)









[17] Section 83 deals
with the consequences of failing to attend conciliation meetings. The
relevant provision is subsection (2) which states:



"...the conciliator
of the dispute may:




  1. dismiss the
    matter if the party who referred the dispute fails to attend
    a conciliation meeting; or



  2. determine the matter
    if the other party to the dispute fails to attend the
    conciliation meeting. ‘’ ( My emphasis)




And subsection 3 states:



(3)
The
Labour
Commissioner may reverse

a
decision made by a conciliator
in
terms of subsection (2) (a)
10
if



(a) application is made
in the prescribed form and manner; and



(b) the Labour
Commissioner is satisfied that there were good grounds for failing to
attend the conciliation meeting. "






[18] The definitions
section states the following in respect of conciliation:



‘’conciliation”
includes –




  1. mediating a dispute;



  2. conducting a fact
    finding-exercise
    ; and



  3. making an advisory
    award if





  1. it will enhance the
    prospects of settlement; or



  2. the parties to the
    dispute agree.’







Arbitration
distinguished from conciliation



[19] Part C provides for
an arbitration procedure and establishes ‘
arbitration
tribunals
for the purpose
of resolving disputes’ (my emphasis), as ‘contemplated in
Article 12(1) (a) of the Namibian Constitution
11
as follows:







In
the determination of their civil rights and obligations

...against them, all persons shall be entitled to a fair and public
hearing by an independent, impartial and competent
Court
or Tribunal established by law
...’
(My emphasis)






[20] Unlike conciliation,
the Labour Act in respect of
arbitration
procedure states the effect of an
arbitration award
12
and, in subsection (2) of s 87, has a
provision not provided for in respect of
conciliation,
in the following terms:



If
an
arbitration
award

orders a party to pay a sum of money, the amount earns interest from
the date of the award at the same rate as the rate prescribed from
time to time in respect of a judgment debt in terms of the Prescribed
Rates of Interest Act, 1975 (Act No. 55 of 1975) unless the award
provides otherwise. ‘







Arbitration given
trappings of judicial forum



[21] To sum up, the
arbitration procedure envisaged in Part C of chapter 8 is a
tribunal
and is accorded the
trappings of a judicial forum: In the first place, and as already
shown, it is created as a tribunal in terms of the constitution. A
decision following arbitration is by specific provision given binding
effect and made enforceable
13
. The arbitrator is required to give
reasons for his award
14.
An award sounding in money attracts interest
15.
An aggrieved party can seek its variation or rescission and the law
specifically makes it subject of appeal and review.
16
These trappings of a judicial
forum
are singularly
lacking in respect of the conciliation procedure.






Section 83(2) (b)
properly construed



[22] To make an
enforceable determination or award in terms of s 83 (2) (b) is a
determination of [a
person’s] civil rights and obligations’
within
the meaning of Article12 (1) (a) of the Namibian Constitution. It can
only survive if the instance making it is a
Court
or Tribunal
as contemplated
in that Article. I have shown that the Labour Act under chapter 8,
Part B does not establish the conciliator as a
tribunal’
and consequently could not have
intended that any determination made by a conciliator shall have
binding legal effect. That such a result was not contemplated by the
Legislature is apparent from the scheme adopted in respect of
conciliation and arbitration. Firstly, where the person who reports
the dispute fails to attend, the Labour Act provides for the
dismissal of the dispute. It provides for no specific procedure for
an award and its effect in default of appearance by the person
against whom a dispute is reported (referee). It only says that the
conciliator must determine the matter. That is perfectly reasonable:
the referrer of the dispute sets the legal machinery in motion and
his failure to attend is presumed by the law to be a lack of
interest. If he does not pursue the matter, it would be otiose to
require the referee to expend time and resources on the matter. But
the defaulting referrer is afforded the right to have the matter
reinstated on good cause shown. The same does not apply to the person
against whom the machinery of the law has been set in motion, because
– in my view – it is intended to be an informal and
inexpensive avenue for the resolution of labour disputes.






[23] Additionally, the
Labour Act makes no provision in terms of which the referee seek the
rescission thereof – assuming the binding effect as intended. I
conclude that, the fact that the labour Act has a specific procedure
in terms of which the referrer of a dispute may seek the reversal of
a dismissal due to absence, while not providing for a similar
procedure in respect of the referee, is a clear pointer that the
Legislature did not intend that punitive consequences would follow
default of appearance by the referee. Contrary to Mr Chanda's rather
courageous and unsubstantiated suggestion to the contrary, there is
no reversal procedure for a determination made by a conciliator under
s 82 (b), ie where the referee fails to attend a conciliation
meeting. Neither the
Labour
General Rules
17
nor the Rules
relating to the conduct of conciliation and Arbitration before the
Labour Commissioner
18
provide for a reversal procedure in
respect of a conciliation determination or award.






[24] The definition of
conciliation,
which clearly excludes any punitive or coercive measure, is another
barometer that no binding effect is contemplated in respect of a
determination or award under Part B (s 83(2)(b)). The definitions
section states that the conciliator may make a
fact-finding
award, and issue an 'advisory
award'
only if the parties
agree to
the making such award. Against this backdrop, the leap from
‘advisory’ to 'enforceable' contended by Mr Chanda is
plainly untenable, not least because unlike with arbitration awards,
there is no procedure provided in Part B for the enforcement of an
award made by a conciliator.



[25] The argument on
behalf of 2nd and 3rd respondent is so
fundamentally flawed and shows clearly that the 2nd
respondent completely misconstrued the difference between
conciliation under Part B and arbitration under Part C of chapter 8.
This is shown by the fact that he refers to himself in the award of 1
April 2010 as an ‘arbitrator’ while at the same
time strenuously maintaining that the determination was made under s
83(2) (b). The two are irreconcilable!






[26] The answer to Mr
Chanda’s suggestion that if no binding effect was intended in a
conciliation proceeding, s 83(2) (b) would become purposeless is the
following: Subsection (15) of s 82 states in relevant part:







...
a conciliator
must
issue a certificate that a dispute is unresolved if





  1. The conciliator believes
    that there is no prospect of settlement at that stage of the
    dispute; or



  2. the period
    contemplated in subsection (10) has expired.’ (
    my
    emphasis).







Subsection (16) in turn
states:



When
issuing a certificate under subsection (14) the conciliator must, if
the parties have agreed, refer the unresolved dispute for arbitration
in terms of Part C of this Chapter.' While subsection (17) states:



(17)
A conciliator referred to in terms of subsection (9) (a)-



(a) remains seized of
the dispute until it is settled
; and



(b) must continue to
endeavour to settle the dispute through conciliation in terms of
section 137. ‘(my emphasis)






[27] In my view, the
cumulative effect of subsections (15) to (17)
supra
is that if a referee fails to attend a
conciliation meeting, the conciliator remains seized of the matter
and can call further meetings if he entertains prospects of
settlement before the expiry of the 30-day period. If he considers
that there are no prospects of settlement, or the 30-day period had
expired, he
must
refer the matter to arbitration. Such
is the determination contemplated in s 83 (2) (b) – no other.
That is the proper role for conciliation under the Labour Act and it
is untenable to suggest that unless a determination made by a
conciliator under s 83 (2) (b) is binding and enforceable, it’s
purposeless. The legislative intended it to be a precursor to
arbitration.






[28] Not being a court or
tribunal, a conciliator appointed under the Labour Act is an
administrative functionary: He or she is a creature of statute and
enjoys only such powers as are given to them under the Labour Act. A
conciliator may not perform any function or exercise any power beyond
that conferred on them by the Labour Act. It is trite that all public
power must be sourced in law.
19
As Hoexter correctly observes:20







...administrators
have no inherent powers. Every incident of public power must be
inferred from a lawful empowering source, usually legislation. The
logical concomitant of this is that an action performed without
lawful authority is illegal or ultra vires – that is to say,
beyond the powers of the administrator.’






[29] I am satisfied that
the 2
nd
respondent acted ultra
vires
his powers in making
a determination or award which purported to have binding legal effect
and to be enforceable against the applicant by way of a compliance
order. Section 90 is applicable only in respect of arbitration which
falls under Part C of chapter 8. It cannot be invoked under Part B.
To the
extent that the conciliator by his determination, purportedly under s
83(2) (b), sought to determine the
civil
rights
and
obligations
of the parties, he
usurped the powers of a court or tribunal and thus acted
ultra
vires.






The relief sought



[30] Since I am satisfied
that the applicant had due notice of the proceedings of 30 March
2010, it would be inappropriate to grant the relief sought in prayer
2 of the amplified notice of motion. As it is the 2
nd
respondent’s case that he acted
as a conciliator and made a determination in that capacity in terms
of chapter B (s 83(2) (b)) and not chapter C, the relief sought in
prayer 4 is not competent. In view of the concession that the attempt
to seek from the 2
nd
respondent the reversal of his own
decision was equally incompetent, the relief sought in prayers 6 and
7 also falls away.






[31] The relief sought in
prayers 2 and 5 accords with the tenor of this judgment. It is
important though not to leave the matter in
limbo.
The 2
nd
respondent remains seized of the
matter and he should be required to perform his proper functions as
contemplated in Part B of chapter 8 as interpreted in this judgment.
The effect of my judgment is that the 2
nd
respondent remains seized of the
matter and he should proceed to complete the process and exercise his
powers, properly defined by this judgment, and bring the matter to
finality. I will therefore add an order to make that possible.






Costs



[32] The applicant asks
the Court to order costs against the respondents opposing the review.
Under s 118 of the Labour Act I can only order costs if the conduct
of the respondents is shown to have been frivolous or vexatious. It
appears that the 2
nd
and 3rd
respondent genuinely misconstrued the
conciliation procedure and acted
bona
fides
in terms of a
longstanding but wrong practice. On the other hand, some of the
defences advanced in the papers
21
, including in the heads of argument,
show that the applicant too misunderstood certain provisions of the
Labour Act. I do not think in such circumstances a case is made out
that the respondents acted frivolously or vexatiously. In the first
place, the applicant got itself in this situation because it, while
knowing of the conciliation meeting, failed or neglected to attend
it. Besides, the issues raised in this case are of great public
importance. I will therefore not make a costs order as asked.






The order



[33] The notice of motion
includes a prayer for alternative relief. Certain of the relief I
will grant, while not specifically asked for in the notice of motion,
follow from the grant of relief asked by the applicant. The court has
inherent power to frame relief to give effect to its judgment.






[34] Accordingly, I make
the following order:







  1. The 2nd
    respondent’s determination dated 1 April 2010 and any
    purported decision taken by such respondent in consequence of that
    determination is hereby declared null and void and as being ultra
    vires
    the Labour Act and Article 12 (1) ( a) of the
    Constitution;









  1. The dispute between the
    1st respondent and the applicant is remitted to the 2nd
    respondent who, being seized of the dispute, must determine it
    according to law.
















_______________________



DAMASEB, JP



ON BEHALF OF THE
APPLICANT: Adv Van Vuuren






Instructed By: Peter J
De Beer Legal Practitioners









ON BEHALF OF THE 2ND
AND 3RD RESPONDENTS: Mr Chanda






Instructed By:
Government-Attorneys









1Section
82(9) (c).




2Section
82(9) (a) read with s 82(3).




3Section
120 (2); s 121 (1) (c).




4In
the determination of their civil rights and obligations or any
criminal charges against them, all persons shall be entitled to a
fair and public hearing by an independent, impartial and competent
Court or Tribunal established by law: provided that such Court or
Tribunal may exclude the press and/or the public from all or any
part of the trial for reasons of morals, the public order or
national security, as is necessary in a democratic society.’




5ENFORCEMENT
OF AWARDS


90.
‘A party to an
arbitration
award made in terms of this Part

[ i.e. Part C ] may
apply to a labour inspector in the prescribed form requesting the
inspector to enforce the award by taking such steps as are necessary
to do so, including the institution of execution proceedings on
behalf of that person.’ ( My emphasis)




6Both
these arguments assume the right to seek reversal of a s 83(2)
determination but as will soon become apparent no such right exists
under Part b of chapter 8.




7Sections
81-83.




8Sections
84-90.




9Note
the use of the word
meeting’
as opposed to hearing’
in s 86 (8) (a) in relation to arbitration.




10Reversal
by the Labour Commissioner is therefore applicable only in the event
of a dismissal where the party referring the dispute fails to attend
a conciliation meeting.




11It
is significant to note the difference: there is no ‘
tribunal
created in respect of conciliation. There is no
reference in respect of conciliation to Article 12(1) (a) of the
constitution. In terms of that article, only a competent court or a
tribunal can
determine the
civil rights and
obligations of a person
. Part B
deliberately refers to the conciliation procedure as a ‘
meeting
as opposed to a’ tribunal’.




12Section
87 (1) states:
EFFECT OF ARBITRATION
AWARDS


An
arbitration award made in terms of this Part – (a) is binding
unless the award is advisory;


(b) becomes
an order of the Labour Court on filing the award in the Court by –


(i) any
party affected by the award; or


(ii) the
Labour Commissioner.’




13Section
90.




14Section
86(18).




15Section
87 92.




16Sections
88 and 89.




17Government
Notice 261 of 2008: Regulation 19 provides for a reversal procedure
only in respect of a dismissal of a dispute in terms of s 82(a). No
mention of a determination in terms of section 83(b).




18Government
Notice 262 of 2008: Rule 27 simply repeats s 83(2) of the Labour
Act.




19Fedusure
Life Assurance v Greater Jhb TMC
1999
(1) SA 374 (CC) paras 58-59.




20Cora
Hoexter,
Administrative Law in South
Africa
, 2007 (Juta) at p. 227.




21For
example that they thought condonation was required when clearly it
was not.