REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE:   YES/NO
Case number:  522/98
In the matter between:
SACCAWU & OTHERS
Appellants
and
THE PRESIDENT OF THE INDUSTRIAL TRIBUNAL
1st Respondent
VENDA SUN HOTEL AND CASINO
2nd Respondent
CORAM:
HEFER ADCJ, HOWIE, PLEWMAN JJA,
MELUNSKY and FARLAM AJJA
HEARD:
20 NOVEMBER 2000
DELIVERED:
29 NOVEMBER 2000
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SUMMARY:   Industrial Tribunal - Members alleged to be biased - Whether
bias established.
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JUDGMENT
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MELUNSKY AJA:
[1] This is an appeal against a decision of the High Court of Venda (Coetzee AJ).
The appellants, the applicants in the court a quo, are the South African Commercial
Catering and Allied Workers Union (“the Union”) and 173 individuals who had been
employed by Venda Sun Hotel and Casino Limited, the second respondent in the
court a quo (“the second respondent”).  The first respondent in the High Court was
the President of the Industrial Tribunal of Venda.  At the relevant time labour matters
in Venda were regulated by the Venda Labour Relations Proclamation, 3 of 1991 (“the
Proclamation”).  The Industrial Tribunal of Venda (“the tribunal”) which was
established in terms of the Proclamation, was authorised to determine disputes relating
to alleged unfair labour practices.
[2] In the court a quo the appellants sought orders in the following terms:

“1.
Calling upon the Respondents to show cause why the
determination and/or proceedings of the tribunal given on or about
the 9th May 1997 under Case Number IT 23/06/93 should not be
reviewed and corrected or set aside; and
2.
Calling upon the First Respondent, the President of the said
Tribunal, to dispense (sic) within 21 days of the receipt of the
notice of motion to the Registrar of this Honourable Court the
record of such proceedings sought to be corrected [and] set aside
together with any such reasons as [he] is by law required or
obliged to give or make and to notify the applicants that he has
done so.”
Coetzee AJ dismissed the application with costs but granted the appellants leave to
appeal to this Court.
[3] The application arose out of the dismissal of 180 employees (173 of whom are
appellants in this Court) by the second respondent during January 1993.  Some of the
employees were dismissed for taking part in an illegal strike and others for being absent
from work without leave.  In June 1993 the Union and the dismissed workers brought
an application before a tribunal consisting of Advocates Nthabalala and Mojapelo and

Mr Netshifhefhe, an attorney, for an order declaring the dismissals to be an unfair
labour practice and for reinstatement of the employees.  The second respondent raised
a point in limine to the effect that, in terms of the Proclamation, an application for
reinstatement was time-barred and that the employees were not entitled to that form of
relief.  The tribunal decided the point in the second respondent’s favour and thereafter
the proceedings were adjourned.  They resumed at a later date before a tribunal
consisting only of Mojapelo (as president) and Netshifhefhe.  After a lengthy hearing
the tribunal eventually made its determination on 9 May 1997.  It held that the
dismissals of the striking workers did not constitute an unfair labour practice but that
the dismissals of seven of the applicants who were absent without leave were
procedurally unfair.  There was no express determination relating to the other workers
who had been dismissed for being absent without leave but from the reasons given it
may be assumed that the tribunal considered that their dismissals did not amount to

an unfair labour practice.
[4] The application in the court a quo was based on two main grounds -
irregularities allegedly committed by the tribunal and the alleged bias of both of its
members.  In this Court counsel for the appellants restricted his argument to the
question of bias.  He was correct in doing so for the alleged irregularities cannot be
properly adjudicated upon in the absence of the record of the proceedings before the
tribunal, a matter which will be commented upon later.  The question of bias was dealt
with in a superficial manner in the founding affidavit which was deposed to by Mr
Gelebe.  He stated that Mojapelo and Netshifhefhe displayed bias during the hearing
by failing to treat the appellants’ attorney with the same courtesy and respect that they
showed towards the second respondent’s legal representative.  Gelebe went on to say:
“At every opportunity available to them [Mojapelo and Netshifhefhe]
endeavoured to show how ignorant [our attorney] was and how
unsuitable he was in the conduct of our application.  This belief was

strengthened in us when on or about the 10th day of February 1997,
Mycolens, Mutangwa and myself were sent by the Registrar of that
Tribunal to pass on a message to Mr Netshifhefhe at his offices ......
Upon our arrival at Mr Netshifhefhe’s office and after passing on the
message from the Registrar he turned to us and informed us that we had
wasted money and time by employing an attorney of record who came
from far away.  He further stated that if he had handled our case he
would have won it and in fact it would have been finalised much sooner
than it took for the proceedings to finish in this matter.  Naturally, we
were taken aback by his attitude but as we did not want to question him
we left his office and reported the matter to our attorney of record.”
[5] Both in this Court and the court a quo it was only the second respondent who
opposed the application.  The first respondent did not reply to the appellants’
allegations nor did he intimate whether he or the tribunal abided by the decision of the
court.  If the first respondent was aware of the application, his silence was, to say the
least, discourteous.  It is possible, however, that the first respondent did not know of
the proceedings.  According to the return of the deputy sheriff of Thohoyandou, the
notice of motion was served on an adult person (described as a “security manager”)

who was apparently in control of the first respondent’s place of business at an
unspecified address in Thohoyandou.  In the founding affidavit it was stated that the
first respondent’s “address for service is c/o The Registrar, The Industrial Court,
Pretoria” which, counsel for the appellant appeared to concede, was the place where
service should have been effected.  It may be noted that the notice of motion was
directed to both Mojapelo and Netshifhefhe at “c/o Industrial Court, Pretoria” and was
received by an official or officials of that court (one of these was L Cloete, Security
Manager, apparently the same person on whom service was effected in
Thohoyandou).  There is nothing to indicate how the documents were delivered to the
Industrial Court or that they were passed on to the members of the tribunal.  It is only
necessary to add that Netshifhefhe was not cited as a party to the proceedings.  In
Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission
1982 (3) SA 654 (A) it was pointed out at 672E-F  that in the case of an application

for the review of a decision of a statutory body, the notice of motion is to be directed
and delivered to the chairman of the body in his representative capacity and that there
is no need to cite the body itself.  In view of certain specific allegations of bias on the
part of Netshifhefhe, it might have been desirable for the appellants to have cited him
as a party to the proceedings but there is no need to express a firm view on whether
this was necessary.  Despite the facts mentioned above, it will be assumed for the
purposes of the appeal that service was properly effected on the first respondent.
[6] At the commencement of the hearing in the court a quo the attorney representing
the second respondent informed the learned judge that the record of the proceedings
before the tribunal was available at the offices of the Industrial Court in Pretoria.  He
applied for a postponement, coupled with a tender to pay the costs occasioned
thereby, to enable him to place the record before the court.  The application for a
postponement was opposed by the appellants’ counsel and was refused.

Consequently Coetzee AJ had before him only the affidavits and the tribunal’s reasons
and on a consideration of these documents he held that the appellants had not
established the grounds of review.
[7] In terms of rule 53 of the Uniform Rules of Court (similar to the rule that applied
in Venda at the time), the right to require the record of the proceedings of a body
whose decision is taken on review is primarily intended to operate for the benefit of
the applicant (see Motaung v Mothiba NO 1975 (1) SA 618 (O) at 625F and Jockey
Club of South Africa v Forbes 1993 (1) SA 649 (A) at 660E-H).  However, and
depending on the circumstances, a respondent should not be prevented from placing
the record, or the relevant parts thereof, before a court simply because the applicant
does not do so.  Moreover - and this is of particular significance  in the present matter
- an applicant who does not furnish the record to the court runs the risk of not
discharging the onus, especially  where the allegations upon which it relies are put in

issue.
[8] On the appellants’ behalf it was argued in this Court that the second
respondent’s opposing affidavit was so concise as to amount to little more than a bare
denial of the appellants’ allegations.  Consequently it was contended that we should
decide the appeal solely on the facts put forward by the appellant and that the record
of the proceedings was unnecessary.  It is true that Mr Nicholls, the deponent to the
second respondent’s affidavit, could hardly have expressed himself more
economically.  However he denied all the material allegations made by the appellants,
save for those relating to what Netshifhefhe was alleged to have said on 10 February
1997, of which Nicholls had no knowledge.  With the exception of the last-mentioned
occurrence, the appellants’ allegations relating to bias or partiality lacked particularity
and the second respondent’s denial, without elaboration, was sufficient to raise
substantial disputes of fact.  Without recourse to the record of proceedings the

disputes cannot be resolved on the affidavits.  The result is that the appellants’
generalised allegations of bias have not been established.
[9] The appellants’ counsel seemed to recognise the difficulty with which his clients
were faced and he directed most of his argument to what allegedly took place in
Netshifhefhe’s office on 10 February 1997.  He submitted that Netshifhefhe’s
comments were a clear indication that at least one member of the tribunal was biased
and he suggested that the matter should be referred back to the court a quo in the light
of the record which, he eventually conceded, should have been placed before that
court.  Coetzee AJ, it should be noted, did not deal with the aforesaid remarks
attributed to Netshifhefhe, which, in my view, is the only issue that warrants further
consideration.
[10] The test for apprehended bias is objective and the onus of establishing it rests
on the applicant (President of the Republic of South Africa and Others v South

African Rugby Football Union and Others 1999 (4) SA 147 (CC) at 175 B-C, par
45).  The existence of a reasonable suspicion of bias satisfies the test (Moch v
Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 8H-I).
It is beyond question that members of the tribunal had to act impartially.  It is,
moreover, not only actual bias, but the outward appearance of bias, that may vitiate
the decision of a body such as the tribunal as justice must be seen to be done (see
BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’
Union and Another 1992 (3) SA 673 (A) at 690A-695B).
[11] Whether the appellants have established a disqualifying bias depends on what
Netshifhefhe is alleged to have said to the Union’s representatives.  The background
to the specific occasion was the general averment that members of the tribunal made
it clear that they regarded the appellants’ attorney as incompetent and that they
humiliated or belittled him.  This was denied by the second respondent and does not,

in the circumstances of the case, provide assistance in determining whether
Netshifhefhe, in particular, was biased.  His extra curial criticism of the appellants’
attorney to lay clients, if it occurred, is obviously to be deplored.  But, however
deplorable his conduct might have been, it does not follow that he was biased against
the appellants or that the appellants should reasonably have suspected that he was.  It
is clear that Netshifhefhe’s remarks related to the first hearing before the tribunal and
its decision that the claim for reinstatement could not be pursued because the
application therefor was made out of time.  Netshifhefhe seems to have implied that
the attorney concerned had failed to apply for reinstatement within the prescribed time
and that if he (Netshifhefhe) had represented the employees they would have been
entitled to claim reinstatement and that the whole application would have been
disposed of more expeditiously.  I doubt whether it is reasonable to read more than
this into the extract from the founding affidavit, which I have quoted in par 4.  It may

even be that Netshifhefhe’s statement indicated that he had a degree of sympathy
towards the appellants and their predicament.  Whatever may be said about his
remarks, however, they cannot reasonably be construed as an indication of bias
against the appellants.  It may also be of some significance that after the matter was
reported to the appellants’ attorney nothing was said about it until after the tribunal’s
determination, some three months later.  It suffices to say, however, that the appellants
have not discharged the onus of establishing bias on the part of Netshifhefhe and it is
not necessary to speculate on the possible reasons for the attorney’s inactivity.
[12] The appeal is dismissed with costs.
L S MELUNSKY
ACTING JUDGE OF APPEAL
CONCUR:
HEFER ADCJ)
HOWIE JA)

PLEWMAN JA)
FARLAM AJA)