Eshowe Spar v Mkhwanazi and Others (D625/05) [2007] ZALCD 15 (4 December 2007)

Eshowe Spar v Mkhwanazi and Others (D625/05) [2007] ZALCD 15 (4 December 2007)

The court found that the applicant failed to discharge its onus of proof in the arbitration, as the critical witness regarding the alleged misconduct did not testify. The evidence relied upon was limited to the chairperson's account and documentary evidence, which was insufficient to overturn the arbitrator's finding. The employee's conduct, while amounting to negligence, did not constitute a dismissable offence in the circumstances, especially given her long service and lack of personal gain. The applicant's delay in filing the review application was unreasonable, as the possibility of settlement had dissipated well before the application was lodged. The court held that neither the...

Citation
[2007] ZALCD 15
Parties
Applicant: Eshowe Spar; Respondent: E Mkhwanazi; Respondent: Charles Oakes N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
4 December 2007
Case Number
D625/05
Procedural Posture
Review Application / Application for Condonation and Review of Arbitration Award
Outcome
Application for condonation refused; application for review refused; applicant ordered to pay costs.
Judges
Pillay D
Legal Topics
Condonation of Late Filing, Review of Arbitration Award, Dismissal for Negligence, Onus of Proof, Insubordination
Labour Law Civil Procedure Condonation of Late Filing Review of Arbitration Award Dismissal for Negligence Onus of Proof Insubordination

Case Brief

Summary, issues, holding and outcome

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Parties

Eshowe Spar

Applicant

E Mkhwanazi

Respondent

Charles Oakes N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Application for Condonation and Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant's delay in filing the review application should be condoned.
  2. 2 Whether the arbitrator's award was reviewable on the merits.
  3. 3 Whether the employee's conduct amounted to a dismissable offence.

Ratio Decidendi

The court found that the applicant failed to discharge its onus of proof in the arbitration, as the critical witness regarding the alleged misconduct did not testify. The evidence relied upon was limited to the chairperson's account and documentary evidence, which was insufficient to overturn the arbitrator's finding. The employee's conduct, while amounting to negligence, did not constitute a dismissable offence in the circumstances, especially given her long service and lack of personal gain. The applicant's delay in filing the review application was unreasonable, as the possibility of settlement had dissipated well before the application was lodged. The court held that neither the...

Court Disposition

Application for condonation refused; application for review refused; applicant ordered to pay costs.

Orders

  • The application for condonation is refused.
  • The application for review is refused.