Custance v S A Local Government BargainingCouncil Others (D114/02) [2003] ZALC 26; (2003) 24 ILJ 1387 (LC) (12 March 2003)

Custance v S A Local Government BargainingCouncil Others (D114/02) [2003] ZALC 26; (2003) 24 ILJ 1387 (LC) (12 March 2003)

The Court found that clause 7 of the arbitration agreement could not validly oust the Labour Court's jurisdiction in circumstances where the law does not permit it, as this would contravene public policy and constitutional rights of access to justice. The arbitration was deemed private and governed by the Arbitration Act, which allows for review only on specific grounds. The applicant failed to establish any gross irregularity or mala fides in the arbitrator's conduct. The disciplinary inquiry and arbitration were procedurally fair, and the penalty of dismissal was appropriate given the nature of the misconduct, including racist abuse and assault. The award was not reviewable under the...

Citation
[2003] ZALC 26
Parties
Applicant: Robert Stephen Custance; Respondent: S A Local Government Bargaining Council & others
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
12 March 2003
Case Number
D114/02
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
Pillay
Legal Topics
Arbitration Review, Ouster Clause, Procedural Fairness, Dismissal for Misconduct, Public Policy Limitation
Labour Law Civil Procedure Arbitration Review Ouster Clause Procedural Fairness Dismissal for Misconduct Public Policy Limitation

Case Brief

Summary, issues, holding and outcome

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Parties

Robert Stephen Custance

Applicant

S A Local Government Bargaining Council & others

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether clause 7 of the arbitration agreement validly ousts the Labour Court's jurisdiction.
  2. 2 Whether the arbitration award is reviewable under section 33(1) of the Arbitration Act.
  3. 3 Whether the disciplinary inquiry and dismissal were procedurally and substantively fair.

Ratio Decidendi

The Court found that clause 7 of the arbitration agreement could not validly oust the Labour Court's jurisdiction in circumstances where the law does not permit it, as this would contravene public policy and constitutional rights of access to justice. The arbitration was deemed private and governed by the Arbitration Act, which allows for review only on specific grounds. The applicant failed to establish any gross irregularity or mala fides in the arbitrator's conduct. The disciplinary inquiry and arbitration were procedurally fair, and the penalty of dismissal was appropriate given the nature of the misconduct, including racist abuse and assault. The award was not reviewable under the...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.