Irene Country Club v Commissioner for Conciliation, Mediation and Arbitration and Others (JR 07/2020) [2021] ZALCJHB 209 (26 July 2021)
The court found that the commissioner failed to engage with the real issue and disregarded substantial material evidence presented by the applicant. The reasoning of the commissioner reflected bias, and the probabilities supported a finding of theft caused by fraudulent conduct. Given these procedural...
Source-derived case information.
- Citation
- [2021] ZALCJHB 209
- Parties
- Applicant: Irene Country Club; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Queendy Gungubele N.O.; Respondent: Xikombiso Julius Mkhavele; Respondent: Bongani Clifford Chauke
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR 07/2020
- Procedural Posture
- Review Application / Judgment
- Outcome
- The review application is granted. The arbitration award is set aside and the matter is remitted for a de novo hearing before a different commissioner.
- Judges
- N Cassim
- Legal Topics
- Review of Arbitration Award, Remittal for De Novo Hearing, Procedural Fairness, Commissioner Bias
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Country Club
Applicant
Commission for Conciliation, Mediation and Arbitration
Respondent
Queendy Gungubele N.O.
Respondent
Xikombiso Julius Mkhavele
Respondent
Bongani Clifford Chauke
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the arbitration award issued by the second respondent should be reviewed and set aside.
- 2 Whether the matter should be remitted to the CCMA for a de novo hearing before a different commissioner.
- 3 Whether the commissioner failed to consider material evidence and acted with bias.
Ratio Decidendi
The court found that the commissioner failed to engage with the real issue and disregarded substantial material evidence presented by the applicant. The reasoning of the commissioner reflected bias, and the probabilities supported a finding of theft caused by fraudulent conduct. Given these procedural irregularities, the court held that the arbitration award must be reviewed and set aside. The matter was remitted to the CCMA for a de novo hearing before a different commissioner to ensure procedural fairness. The court declined to substitute its own findings due to the absence of the fourth respondent and the express terms of the notice of motion.
Court Disposition
The review application is granted. The arbitration award is set aside and the matter is remitted for a de novo hearing before a different commissioner.
Orders
- The arbitration award under Case nr: GATW15407/19 issued by the second respondent is reviewed and set aside.
- The matter is remitted to the first respondent for the dispute to be arbitrated de novo by a commissioner other than the second respondent.
Full Case Text
Judgment text and source record
40 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 07/2020
In the matter between:
IRENE COUNTRY CLUB Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First
Respondent
QUEENDY GUNGUBELE N.O.
(cited in her capacity as Commissioner
of the Commission for Conciliation,
Mediation and Arbitration) Second
Respondent
XIKOMBISO JULIUS MKHAVELE Third
Respondent
BONGANI CLIFFORD CHAUKE Fourth
Respondent
Heard: 1 July 2021
Delivered: (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation
to the parties’ representatives by email. The date for hand-down is deemed to be on 26 July 2021)
JUDGMENT
CASSIM, AJ
[1] In this review application, the applicant seeks an order se ting aside the award of the second respondent (the commissioner), dated 28 November 2019 and remitting the matter back to the Commission for Conciliation, Mediation, and Arbitration (CCMA) for a de nova hearing before another commissioner.
[2] At the hearing, there was no representation for the fourth respondent. Mr Kanyoka appeared for the third respondent and submitted that if there was any theft, this was the action of the fourth respondent and not that of the third respondent. Arising from the fact that the fourth respondent did not appear to oppose the matter, the matter cannot be disposed of in its entirety. In short, it would be prejudicial for to the fourth respondent for the Court to substitute the findings of the commissioner as the notice of motion expressly seeks a referral back to the CCMA.
[3] With respect, the commissioner got it all wrong. She never came to grips with the real issue. She disregarded material evidence and her reasoning regrettably reflects a bias mind having regard to the substantial material evidence placed before her on behalf of the applicant. Prima facie speaking, a theft caused by fraudulent conduct is established by reference to the objective facts. The probabilities support such finding. Therefore, I am persuaded that the matter must be referred to the CCMA for a re-hearing.
[4] In the result, the following order is made:
Order
1. The arbitration award under Case nr: GATW15407/19 issued by the second respondent is reviewed and set aside;
2. The matter is remitted to the first respondent for the dispute to be arbitrated de novo by a commissioner other than the second respondent.
3. There is no order as to costs.
N. Cassim
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ms C Mouton
Instructed by: Vermeulen
Attorneys
For the Respondent: Mr S Kanyoka
Instructed by: S
E Kanyoka Attorneys