POPCRU obo Agnes Nkuna v Safety and Security Sectoral Bargaining Council and Others

Ms Agnes Nkuna was employed by the South African Police Service (SAPS) as a Senior Administrative Officer from 1 February 2006, stationed within the Human Resources Management Division at National Office. She was charged with several allegations of misconduct and on 24 December 2013 was placed on precautionary suspension without remuneration in terms of Regulation 13(2) of the Regulations for the South African Police Service. She appeared before an internal disciplinary hearing on 19 March 2014, was found guilty, and dismissed. She noted an appeal through POPCRU on 11 April 2014 (outside the prescribed period), challenging the finding and sanction. A condonation application was granted on 26 June 2014. The appeals authority only issued its findings on 5 December 2014, well beyond the 30-day period prescribed in Regulation 17(9). POPCRU contended the outcome was invalid as Ms Nkuna was not afforded an opportunity to supplement her grounds of appeal after receiving the transcribed record. POPCRU then referred a dispute of interpretation of the Collective Agreement in terms of section 24 of the LRA. The parties agreed to file heads of argument without leading oral evidence, despite patent disputes of fact. The arbitrator ruled in favor of SAPS, finding that POPCRU failed to prove SAPS contravened the relevant Regulations.

• Whether the arbitrator erred in proceeding to determine the matter on the basis of written submissions without a proper stated case setting out agreed facts
• Whether the arbitration award was reasonable in the absence of a factual matrix
• Whether the interpretation of Regulations 13(2), 16(a) and (b) and 17(9) could properly be undertaken without evidence and agreed facts
• Whether disputes of fact including the computation of time and the date of noting the appeal required oral evidence

1. The arbitration award issued under case number PSSS 679-14/15 dated 6 March 2017 was reviewed and set aside. 2. The matter was remitted to the SSSBC to be heard de novo before an arbitrator other than the second respondent. 3. No order as to costs.

When parties elect to proceed by way of a stated case in arbitration proceedings, they must set out both facts and issues in a crisp and unequivocal manner through a written statement of agreed facts. An arbitrator cannot properly interpret regulations or collective agreements without a factual matrix or factual substratum. Where there are patent disputes of fact, an arbitrator must refuse to determine the matter on written submissions alone and must insist on oral evidence and agreed facts. The failure to have a proper factual foundation renders an arbitration award patently unreasonable, as the arbitrator cannot properly apply their mind to the issues in dispute. This irregularity vitiates the award and constitutes a reviewable irregularity. An award made in the absence of a proper factual plinth falls outside the band of reasonable decisions that a reasonable arbitrator could reach.

The Court expressed sympathy for the arbitrator who was called upon to interpret a collective agreement devoid of a factual matrix. The Court emphasized that arbitrators should not yield to any 'flotsam and jetsam mooted as a stratagem to curtail the proceedings.' The Court noted that practitioners must follow rudimentary elements of good practice when intending to proceed on the basis of a stated case, and that an arbitrator faced with a request to determine a special case where facts are inadequately stated should decline to accede to the request. The Court observed that costs do not follow the result in the Labour Court and noted the persisting collective agreement relationship between the parties as a reason for not making a costs order. The Court cited the principle that words without context mean nothing and context is everything, while cautioning that context should not drown the words chosen by the parties.

This case reinforces the critical importance of proper procedural compliance when parties seek to have disputes determined on a stated case basis in arbitration proceedings. It emphasizes that arbitrators must insist on a properly formulated stated case with agreed facts before proceeding to determine disputes, particularly where interpretation of regulations or collective agreements is required. The judgment serves as a stern warning to practitioners and arbitrators that shortcuts in procedure, even with the consent of parties, will not be countenanced where they undermine the ability of the decision-maker to properly apply their mind to the issues. It underscores that arbitrators have a duty to refuse to proceed where the factual foundation is inadequate, regardless of the parties' agreement to proceed in that manner. The case contributes to the body of jurisprudence on the requirements for reasonable arbitration awards and the grounds for review under section 145 of the LRA.