Free State Consolidated Gold Mine v Jammy and Others (J768/98) [1998] ZALC 50 (6 August 1998)

Free State Consolidated Gold Mine v Jammy and Others (J768/98) [1998] ZALC 50 (6 August 1998)

The court found that the arbitrator failed to apply the correct standard of proof as mandated by the terms of reference, namely the balance of probabilities. Instead, the arbitrator applied a test akin to the criminal standard, requiring the exclusion of all other reasonable inferences, which is inappropriate in civil and labour proceedings. This constituted an excess of jurisdiction and a misdirection in law, justifying the setting aside of the award. The applicant was entitled to a review as the arbitrator did not consistently apply the proper standard, and prejudice may have resulted from this error.

Citation
[1998] ZALC 50
Parties
Applicant: Free State Consolidated Gold Mine; Respondent: B M Jammy; Respondent: National Union of Mineworkers & Others (2nd to 14th Respondents)
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
6 August 1998
Case Number
J768/98
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; arbitration award set aside; costs awarded against the respondents.
Judges
Brassey
Legal Topics
Arbitration Review, Standard of Proof, Dismissal for Theft, Balance of Probabilities
Labour Law Civil Procedure Arbitration Review Standard of Proof Dismissal for Theft Balance of Probabilities

Case Brief

Summary, issues, holding and outcome

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Parties

Free State Consolidated Gold Mine

Applicant

B M Jammy

Respondent

National Union of Mineworkers & Others (2nd to 14th Respondents)

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator applied the correct standard of proof in assessing the evidence at the disciplinary hearing.
  2. 2 Whether the evidence presented was sufficient to establish the commission of theft by the individual respondents on a balance of probabilities.
  3. 3 Whether the arbitrator exceeded his powers by applying the criminal standard of proof instead of the civil standard.

Ratio Decidendi

The court found that the arbitrator failed to apply the correct standard of proof as mandated by the terms of reference, namely the balance of probabilities. Instead, the arbitrator applied a test akin to the criminal standard, requiring the exclusion of all other reasonable inferences, which is inappropriate in civil and labour proceedings. This constituted an excess of jurisdiction and a misdirection in law, justifying the setting aside of the award. The applicant was entitled to a review as the arbitrator did not consistently apply the proper standard, and prejudice may have resulted from this error.

Court Disposition

Application for review granted; arbitration award set aside; costs awarded against the respondents.

Orders

  • The award of the first respondent dated 24 February 1998 is reviewed and set aside.
  • The 2nd to 14th respondents must pay the costs of the application.