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South Africa Judgment

Labour Court Johannesburg

Irene Country Club v Commissioner for Conciliation, Mediation and Arbitration and Others (JR 07/2020) [2021] ZALCJHB 209 (26 July 2021)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

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.
  • There is no order as to costs.

02

Material facts

Parties

Irene Country Club

Applicant Counsel: Ms C Mouton

Commission for Conciliation, Mediation and Arbitration

Respondent Counsel: S E Kanyoka

Queendy Gungubele N.O.

Respondent

Xikombiso Julius Mkhavele

Respondent Counsel: Mr S Kanyoka

Bongani Clifford Chauke

Respondent

03

Procedural history

  1. Posture

    Review Application / Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the commissioner disregarded material evidence and failed to address the real issue, resulting in a biased award. The applicant sought to have the award set aside and the matter remitted for a fresh hearing before another commissioner.
Respondent
The third respondent, represented by Mr Kanyoka, contended that any alleged theft was the action of the fourth respondent and not the third respondent. The fourth respondent did not appear to oppose the matter. The respondents did not oppose the referral back to the CCMA as sought by the applicant.

05

Court’s reasoning

  1. 01

    Labour Relations Act, 66 of 1995

    An arbitration award may be set aside if the commissioner fails to consider material evidence or acts with bias.

  2. 02

    Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)

    Where procedural fairness is compromised, the matter should be remitted for a de novo hearing before a different commissioner.

06

Ratio, limits and disposition

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.

Obiter and limits

  • It would be prejudicial to the fourth respondent for the court to substitute the findings of the commissioner, given the lack of opposition and the specific relief sought.
  • The commissioner failed to come to grips with the real issue and disregarded material evidence, which undermines the integrity of the arbitration process.

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.

  • 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.
  • There is no order as to costs.

Source and reliance status

Labour Court Johannesburg

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Judgment reading view

Judgment text

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Source document

Labour Court Johannesburg

Judgment

[2021] ZALCJHB 209

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

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)

Case cited

Labour Relations Act, 66 of 1995

Legislation

Legislation referenced in the available case record.

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