Cell C (Pty) Ltd v Finger and Others (JR251/06) [2006] ZALC 48; [2006] 10 BLLR 919 (LC); (2006) 27 ILJ 1656 (LC) (28 March 2006)

Cell C (Pty) Ltd v Finger and Others (JR251/06) [2006] ZALC 48; [2006] 10 BLLR 919 (LC); (2006) 27 ILJ 1656 (LC) (28 March 2006)

The court held that an objection to the race of an arbitrator is not a valid ground for recusal and should not be tolerated. Although the arbitrator should not have recused himself, his decision to do so cannot be set aside, as he is now functus officio. Forcing an arbitrator who has recused himself to continue would be undesirable and compromise the integrity of the proceedings. The applicant's suggestion that another commissioner reconsider the recusal is not permissible, as such decisions are personal and not subject to reconsideration by others. The appropriate remedy for a party who persists in racist objections is to deprive him of relief, as established in Soller v Soller. The...

Citation
[2006] ZALC 48
Parties
Applicant: Cell C (Pty) Ltd; Respondent: George Finger; Respondent: The Commissioner for Conciliation, Mediation and Arbitration; Respondent: M S Rafee N.O
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
28 March 2006
Case Number
JR251/06
Procedural Posture
Review Application / Urgent Application to Review and Set Aside Arbitrator's Recusal Decision
Outcome
Application dismissed.
Judges
E Revelas
Legal Topics
Recusal of Arbitrator, Unfair Dismissal, Racial Bias Objection, Functus Officio, Costs Order
Labour Law Civil Procedure Recusal of Arbitrator Unfair Dismissal Racial Bias Objection Functus Officio Costs Order

Case Brief

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Parties

Cell C (Pty) Ltd

Applicant

George Finger

Respondent

The Commissioner for Conciliation, Mediation and Arbitration

Respondent

M S Rafee N.O

Respondent

Procedural Posture

Review Application / Urgent Application to Review and Set Aside Arbitrator's Recusal Decision

Legal Issues

  1. 1 Whether an arbitrator's decision to recuse himself based on a party's objection to his race can be set aside.
  2. 2 Whether a presiding officer's race is a valid ground for recusal.
  3. 3 Whether a punitive costs order made after recusal is valid.

Ratio Decidendi

The court held that an objection to the race of an arbitrator is not a valid ground for recusal and should not be tolerated. Although the arbitrator should not have recused himself, his decision to do so cannot be set aside, as he is now functus officio. Forcing an arbitrator who has recused himself to continue would be undesirable and compromise the integrity of the proceedings. The applicant's suggestion that another commissioner reconsider the recusal is not permissible, as such decisions are personal and not subject to reconsideration by others. The appropriate remedy for a party who persists in racist objections is to deprive him of relief, as established in Soller v Soller. The...

Court Disposition

Application dismissed.

Orders

  • The application to review and set aside the arbitrator's recusal decision is dismissed.
  • No order as to costs is made.