Kimberley Ekapa Mining Joint Venture v Setlhodi and Others (C634/2019) [2021] ZALCCT 89 (19 November 2021)

Kimberley Ekapa Mining Joint Venture v Setlhodi and Others (C634/2019) [2021] ZALCCT 89 (19 November 2021)

The court found that the commissioner made comments which could reasonably be interpreted as influencing the employee not to testify, thereby compromising the fairness of the arbitration proceedings. In the absence of any denial from the commissioner or the employee, the court accepted the applicant's version. This...

Source-derived case information.

Citation
[2021] ZALCCT 89
Parties
Applicant: Kimberley Ekapa Mining Joint Venture; Respondent: Emily Setlhodi; Respondent: Commission for Conciliation Mediation & Arbitration; Respondent: Commissioner Leon Joubert N.O.
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
19 November 2021
Case Number
C634/2019
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; matter remitted to CCMA for rehearing before a different commissioner.
Judges
BN Conradie
Legal Topics
Arbitration Review, Commissioner Misconduct, Procedural Fairness, Substantive Unfair Dismissal
Labour Law Arbitration Review Commissioner Misconduct Procedural Fairness Substantive Unfair Dismissal

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Parties

Kimberley Ekapa Mining Joint Venture

Applicant

Emily Setlhodi

Respondent

Commission for Conciliation Mediation & Arbitration

Respondent

Commissioner Leon Joubert N.O.

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner committed misconduct or a gross irregularity in the conduct of the arbitration proceedings.
  2. 2 Whether the arbitration award should be reviewed and set aside due to alleged bias and unfairness.
  3. 3 Whether the matter should be remitted for rehearing before a different commissioner.

Ratio Decidendi

The court found that the commissioner made comments which could reasonably be interpreted as influencing the employee not to testify, thereby compromising the fairness of the arbitration proceedings. In the absence of any denial from the commissioner or the employee, the court accepted the applicant's version. This amounted to misconduct and an irregularity in the conduct of the proceedings. As a result, the arbitration award was reviewed and set aside. The court declined to substitute its own decision due to the lack of evidence from the employee and ordered that the matter be remitted to the CCMA for rehearing before a different commissioner.

Court Disposition

Arbitration award reviewed and set aside; matter remitted to CCMA for rehearing before a different commissioner.

Orders

  • The arbitration award issued by the Third Respondent under case number NC2274-19 on 19 September 2019 is reviewed and set aside.
  • The matter is remitted to the Second Respondent to be heard by a commissioner other than the Third Respondent.