SACCAWU & Others v The President of the Industrial Tribunal & Another

The South African Commercial Catering and Allied Workers Union (SACCAWU) and 173 individual employees were dismissed by Venda Sun Hotel and Casino Limited in January 1993. Some were dismissed for participating in an illegal strike, others for being absent without leave. In June 1993, the Union and dismissed workers applied to the Industrial Tribunal of Venda for a declaration that the dismissals constituted an unfair labour practice and for reinstatement. The tribunal initially ruled that reinstatement claims were time-barred. After a lengthy hearing before a reconstituted tribunal (consisting of Advocates Mojapelo and Netshifhefhe), the tribunal determined on 9 May 1997 that dismissals of striking workers were not unfair, but dismissals of seven workers for absence without leave were procedurally unfair. The appellants sought to review and set aside this determination on grounds of irregularities and alleged bias by tribunal members, particularly based on their treatment of the appellants' attorney and comments made by Netshifhefhe to Union representatives on 10 February 1997.

• Whether the members of the Industrial Tribunal were biased against the appellants
• Whether alleged discourteous treatment of the appellants' attorney by tribunal members constituted disqualifying bias
• Whether extra-curial comments by a tribunal member (Netshifhefhe) to the appellants' representatives established bias or reasonable apprehension of bias
• The test for establishing bias in administrative and quasi-judicial proceedings
• Whether the appellants discharged the onus of proving bias in the absence of the full record of proceedings

The appeal was dismissed with costs.

The binding legal principles established are: (1) The test for bias in administrative and quasi-judicial proceedings is objective, and the onus of establishing bias rests on the applicant alleging it; (2) The existence of a reasonable suspicion of bias satisfies the test for disqualifying bias; (3) Not only actual bias but the outward appearance of bias may vitiate a decision of an administrative tribunal; (4) Extra-curial comments by a tribunal member that are critical of legal representation, while deplorable, do not necessarily establish bias or reasonable apprehension of bias against a party - the comments must reasonably be construed as indicating partiality against that party; (5) Generalized allegations of bias lacking particularity, when denied by the opposing party, create disputes of fact that cannot be resolved without reference to the record of proceedings; (6) An applicant who fails to place the record before the reviewing court bears the risk of not discharging the onus of proof, particularly where allegations are put in issue.

The court made several non-binding observations: (1) In applications for review of statutory bodies, the notice of motion should be directed and delivered to the chairman in his representative capacity without necessarily citing the body itself, though where specific allegations of bias are made against an individual member, it might be desirable to cite that person as a party; (2) The court noted possible service irregularities but assumed proper service for purposes of the appeal; (3) The court commented that the first respondent's silence and failure to respond was discourteous, though it was possible he was not aware of the proceedings; (4) While the right to require the record under Rule 53 is primarily for the applicant's benefit, a respondent should not be prevented from placing the record before the court depending on circumstances; (5) The court noted that the appellants' attorney's inactivity for three months after being informed of Netshifhefhe's comments until after the unfavorable determination might be significant, though it was unnecessary to speculate on reasons for this inactivity.

This case is significant in South African labour and administrative law for clarifying the application of the bias test in administrative tribunal proceedings. It emphasizes the objective nature of the bias test and the burden on applicants to establish actual or reasonably apprehended bias with sufficient particularity. The case demonstrates that improper or unprofessional conduct by a tribunal member does not automatically constitute disqualifying bias - there must be a reasonable basis for concluding the member was biased against the party. It also highlights procedural issues regarding the importance of placing the record of proceedings before a reviewing court when factual disputes arise, and the consequences of failing to do so. The judgment reinforces that justice must not only be done but must be seen to be done, while recognizing that not every impropriety amounts to bias that would vitiate proceedings.