Haraeus Refinery (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (P 315/11) [2013] ZALCPE 15 (13 March 2013)

Haraeus Refinery (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (P 315/11) [2013] ZALCPE 15 (13 March 2013)

The commissioner failed to apply her mind to the issue of legal representation before allowing the third respondent to be represented by an attorney, in contravention of Rule 25 of the CCMA Rules. The commissioner did not expressly consent to legal representation nor provide reasons for such consent, which was a statutory requirement. This omission constituted a gross irregularity and rendered the arbitration award unreasonable and procedurally unfair. The applicant was not denied the right to call witnesses, as its representative chose not to call Mr Greef. The arbitration award was therefore reviewable and set aside.

Citation
[2013] ZALCPE 15
Parties
Applicant: Heraeus Refinery (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner N Sesani; Respondent: Leon Potgieter
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
13 March 2013
Case Number
P 315/11
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; arbitration award set aside and matter remitted for arbitration de novo.
Judges
Lallie
Legal Topics
Legal Representation in Arbitration, Gross Irregularity, Review of Arbitration Award, Procedural Fairness
Labour Law Civil Procedure Legal Representation in Arbitration Gross Irregularity Review of Arbitration Award Procedural Fairness

Case Brief

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Parties

Heraeus Refinery (Pty) Ltd

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner N Sesani

Respondent

Leon Potgieter

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Did the commissioner fail to apply her mind to the issue of legal representation before consenting thereto?
  2. 2 Did the commissioner commit a gross irregularity rendering the arbitration award reviewable?
  3. 3 Was the applicant denied the right to call a witness during arbitration?

Ratio Decidendi

The commissioner failed to apply her mind to the issue of legal representation before allowing the third respondent to be represented by an attorney, in contravention of Rule 25 of the CCMA Rules. The commissioner did not expressly consent to legal representation nor provide reasons for such consent, which was a statutory requirement. This omission constituted a gross irregularity and rendered the arbitration award unreasonable and procedurally unfair. The applicant was not denied the right to call witnesses, as its representative chose not to call Mr Greef. The arbitration award was therefore reviewable and set aside.

Court Disposition

Application for review granted; arbitration award set aside and matter remitted for arbitration de novo.

Orders

  • The arbitration award issued by the second respondent under Case Number ECPE 5244-10 and dated 10 June 2011 is reviewed and set aside.
  • The matter is remitted to the first respondent to be arbitrated de novo by a commissioner other than the second respondent.