Klaasen v Commission for Conciliation, Mediation and Arbitration and Others (LC260/03 , C260/03) [2005] ZALC 11; [2005] 10 BLLR 964 (LC); (2005) 26 ILJ 1447 (LC) (27 June 2005)

Klaasen v Commission for Conciliation, Mediation and Arbitration and Others (LC260/03 , C260/03) [2005] ZALC 11; [2005] 10 BLLR 964 (LC); (2005) 26 ILJ 1447 (LC) (27 June 2005)

The commissioner failed in his inquisitorial duty to caution the unrepresented applicant about the consequences of not testifying under oath. This omission constituted a reviewable irregularity, as it denied the applicant a fair trial of the issues. The commissioner’s acceptance of the respondent’s uncontradicted evidence was directly linked to the applicant’s failure to testify, which was not properly explained to him. The award must be set aside and the dispute remitted for fresh arbitration before a different commissioner.

Citation
[2005] ZALC 11
Parties
Applicant: Ocelli Francke Aubouinn Klaasen; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner CJ Wessells N.O.; Respondent: Alexkor Limited
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
27 June 2005
Case Number
C260/2003
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dispute is remitted to the CCMA for fresh arbitration before a different commissioner. No order as to costs.
Judges
Murphy AJ
Legal Topics
Arbitration Review, Procedural Fairness, Unrepresented Litigant, Failure to Testify, Adverse Inference
Labour Law Arbitration Review Procedural Fairness Unrepresented Litigant Failure to Testify Adverse Inference

Case Brief

Summary, issues, holding and outcome

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Parties

Ocelli Francke Aubouinn Klaasen

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner CJ Wessells N.O.

Respondent

Alexkor Limited

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner committed a reviewable irregularity by failing to caution the applicant about the consequences of not testifying under oath.
  2. 2 Whether the applicant was denied a fair trial of the issues due to lack of proper guidance from the commissioner.
  3. 3 Whether the commissioner misdirected himself regarding the date of dismissal.

Ratio Decidendi

The commissioner failed in his inquisitorial duty to caution the unrepresented applicant about the consequences of not testifying under oath. This omission constituted a reviewable irregularity, as it denied the applicant a fair trial of the issues. The commissioner’s acceptance of the respondent’s uncontradicted evidence was directly linked to the applicant’s failure to testify, which was not properly explained to him. The award must be set aside and the dispute remitted for fresh arbitration before a different commissioner.

Court Disposition

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

Orders

  • The award of the second respondent dated 08 April 2003 under CCMA case number NC 1229/02 is reviewed and set aside.
  • The dispute is remitted to the first respondent, to be arbitrated de novo by a Senior Commissioner other than the second respondent within 4 weeks of this order or such other time period as the parties may agree.