Cell C (Pty) Ltd v Finger and Others (JR251/06) [2006] ZALCJHB 29 (28 March 2006)

Cell C (Pty) Ltd v Finger and Others (JR251/06) [2006] ZALCJHB 29 (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. However, once the arbitrator has recused himself, he becomes functus officio and cannot be compelled to arbitrate the matter. Forcing an arbitrator who has recused himself to continue would be undesirable and could compromise the fairness of the proceedings. The applicant's suggestion that another commissioner reconsider the recusal decision was rejected, as commissioners do not have the power to reconsider each other's inherently personal decisions. The review application was found to be inappropriate, and the applicant failed to demonstrate a clear right to...

Citation
[2006] ZALCJHB 29
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 Johannesburg
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 racist objection should be set aside.
  2. 2 Whether the arbitrator was functus officio after recusal and could be compelled to arbitrate.
  3. 3 Whether another commissioner could reconsider the recusal decision.

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. However, once the arbitrator has recused himself, he becomes functus officio and cannot be compelled to arbitrate the matter. Forcing an arbitrator who has recused himself to continue would be undesirable and could compromise the fairness of the proceedings. The applicant's suggestion that another commissioner reconsider the recusal decision was rejected, as commissioners do not have the power to reconsider each other's inherently personal decisions. The review application was found to be inappropriate, and the applicant failed to demonstrate a clear right to...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order as to costs.