BKH Mining Services CC t/a Dancarl Diamond Mining v Commission for Conciliation Mediation and Arbitration and Others (J1063/97) [1998] ZALC 108 (11 November 1998)

BKH Mining Services CC t/a Dancarl Diamond Mining v Commission for Conciliation Mediation and Arbitration and Others (J1063/97) [1998] ZALC 108 (11 November 1998)

The Labour Court held that section 144 of the Labour Relations Act expressly authorizes the commissioner who issued the arbitration award to decide on rescission applications, and thus the principle of nemo iudex in re sua does not apply in this statutory context. The applicant failed to establish any actual bias or reasonable perception of bias on the part of the commissioner. The Court further found that the applicant did not apply for condonation for the delay in bringing the rescission application, which was launched approximately nine months after the award was known to the applicant. Even assuming condonation was not required, the applicant's prospects of success in the main case...

Citation
[1998] ZALC 108
Parties
Applicant: BKH Mining Services CC t/a Dancarl Diamond Mine; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: E Hambidge N.O.; Respondent: National Union of Mineworkers; Respondent: Oupa Mosito
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
11 November 1998
Case Number
J1063/97
Procedural Posture
Review Application / Judgment on Review of CCMA Rescission Decision
Outcome
Review application dismissed with costs; arbitration award made an order of the Labour Court with costs against the applicant.
Judges
R M M Zondo
Legal Topics
Ccma Review, Rescission of Award, Natural Justice, Condonation, Unfair Dismissal
Labour Law Civil Procedure Ccma Review Rescission of Award Natural Justice Condonation Unfair Dismissal

Case Brief

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Parties

BKH Mining Services CC t/a Dancarl Diamond Mine

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

E Hambidge N.O.

Respondent

National Union of Mineworkers

Respondent

Oupa Mosito

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Rescission Decision

Legal Issues

  1. 1 Whether the CCMA commissioner contravened the principles of natural justice by deciding the rescission application herself.
  2. 2 Whether the commissioner adopted a bias or unreasonable attitude towards the applicant during the rescission proceedings.
  3. 3 Whether the applicant was entitled to rescission of the arbitration award despite delay and lack of condonation.

Ratio Decidendi

The Labour Court held that section 144 of the Labour Relations Act expressly authorizes the commissioner who issued the arbitration award to decide on rescission applications, and thus the principle of nemo iudex in re sua does not apply in this statutory context. The applicant failed to establish any actual bias or reasonable perception of bias on the part of the commissioner. The Court further found that the applicant did not apply for condonation for the delay in bringing the rescission application, which was launched approximately nine months after the award was known to the applicant. Even assuming condonation was not required, the applicant's prospects of success in the main case...

Court Disposition

Review application dismissed with costs; arbitration award made an order of the Labour Court with costs against the applicant.

Orders

  • The applicant's review application is dismissed with costs.
  • The arbitration award issued by the second respondent on 3 July 1997 is made an order of the Labour Court.