Kgoale v Thaba Chweu Local Municipality and Others (JR 2863/19) [2021] ZALCJHB 224 (11 August 2021)

Kgoale v Thaba Chweu Local Municipality and Others (JR 2863/19) [2021] ZALCJHB 224 (11 August 2021)

The court found that the commissioner failed to conduct proper arbitration proceedings by not receiving oral evidence or an agreed stated case. The process adopted, which relied solely on documents and written submissions, did not satisfy the statutory requirements for arbitration under the Labour Relations Act. The absence of admissible evidence deprived the parties of their rights to present and challenge evidence, and the commissioner made factual findings without a factual basis. Consequently, the arbitration award was a nullity and incapable of being issued. The dispute must be remitted to the CCMA for proper arbitration before a different commissioner.

Citation
[2021] ZALCJHB 224
Parties
Applicant: Thoka Marokwane Patrick Kgoale; Respondent: Thaba Chweu Local Municipality; Respondent: The CCMA; Respondent: Glen Cormarck N.O.
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 August 2021
Case Number
JR 2863/19
Procedural Posture
Review Application / Judgment on Opposed Review Application
Outcome
The review application is upheld; the arbitration award is reviewed and set aside. The dispute is remitted to the CCMA for arbitration before a different commissioner. No order as to costs.
Judges
G N Moshoana
Legal Topics
Arbitration Review, Admissibility of Evidence, Unfair Dismissal, Procedural Fairness
Labour Law Civil Procedure Arbitration Review Admissibility of Evidence Unfair Dismissal Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Thoka Marokwane Patrick Kgoale

Applicant

Thaba Chweu Local Municipality

Respondent

The CCMA

Respondent

Glen Cormarck N.O.

Respondent

Procedural Posture

Review Application / Judgment on Opposed Review Application

Legal Issues

  1. 1 Whether the arbitration award issued without hearing evidence constitutes a valid arbitration proceeding.
  2. 2 Whether the commissioner failed to perform the statutory function by not receiving admissible evidence.
  3. 3 Whether the absence of oral evidence or an agreed stated case renders the award a nullity.

Ratio Decidendi

The court found that the commissioner failed to conduct proper arbitration proceedings by not receiving oral evidence or an agreed stated case. The process adopted, which relied solely on documents and written submissions, did not satisfy the statutory requirements for arbitration under the Labour Relations Act. The absence of admissible evidence deprived the parties of their rights to present and challenge evidence, and the commissioner made factual findings without a factual basis. Consequently, the arbitration award was a nullity and incapable of being issued. The dispute must be remitted to the CCMA for proper arbitration before a different commissioner.

Court Disposition

The review application is upheld; the arbitration award is reviewed and set aside. The dispute is remitted to the CCMA for arbitration before a different commissioner. No order as to costs.

Orders

  • The award issued by Commissioner Glen Cormack dated 3 November 2019 under case number MP4226-19 is reviewed and set aside.
  • The dispute is remitted back to the CCMA to be arbitrated by another commissioner other than Cormack.