Mabule v Commission for Conciliation, Mediation and Arbitration and Others (JR1615/21) [2024] ZALCJHB 365; [2024] 12 BLLR 1294 (LC) (13 September 2024)

Mabule v Commission for Conciliation, Mediation and Arbitration and Others (JR1615/21) [2024] ZALCJHB 365; [2024] 12 BLLR 1294 (LC) (13 September 2024)

The court found that the arbitrator failed to holistically consider the factors set out in Section 3(1)(c) of the Law of Evidence Amendment Act when deciding whether to admit the transcript containing Mrs Senna's testimony. The exclusion of this evidence, particularly given Mrs Senna's status as the main witness and the lack of prejudice to the applicant, rendered the arbitration award unreasonable and reviewable. The court held that a proper ruling could not be reached without considering the transcript and that the interests of justice required its admission. Consequently, the arbitration award was set aside and the matter remitted for a hearing de novo before a different commissioner.

Citation
[2024] ZALCJHB 365
Parties
Applicant: Tsholo Mabule; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Joseph Rankgale Modise N.O; Respondent: Standard Bank of South Africa Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 September 2024
Case Number
JR1615/21
Procedural Posture
Review Application / Judgment on Review and Counter Review of Arbitration Award
Outcome
Arbitration award set aside; matter remitted for hearing de novo before a different commissioner; no order as to costs.
Judges
S Maluleke
Legal Topics
Admission of Hearsay Evidence, Review of Arbitration Award, Substantive Fairness of Dismissal, Remittal for De Novo Hearing
Labour Law Civil Procedure Admission of Hearsay Evidence Review of Arbitration Award Substantive Fairness of Dismissal Remittal for De Novo Hearing

Case Brief

Summary, issues, holding and outcome

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Parties

Tsholo Mabule

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Joseph Rankgale Modise N.O

Respondent

Standard Bank of South Africa Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review and Counter Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator erred in excluding hearsay evidence, specifically the transcript containing the testimony of Mrs Senna.
  2. 2 Whether the arbitration award could be properly made without the testimony of Mrs Senna, the main witness.
  3. 3 Whether the failure to consider the factors in Section 3(1)(c) of the Law of Evidence Amendment Act constituted a reviewable irregularity.

Ratio Decidendi

The court found that the arbitrator failed to holistically consider the factors set out in Section 3(1)(c) of the Law of Evidence Amendment Act when deciding whether to admit the transcript containing Mrs Senna's testimony. The exclusion of this evidence, particularly given Mrs Senna's status as the main witness and the lack of prejudice to the applicant, rendered the arbitration award unreasonable and reviewable. The court held that a proper ruling could not be reached without considering the transcript and that the interests of justice required its admission. Consequently, the arbitration award was set aside and the matter remitted for a hearing de novo before a different commissioner.

Court Disposition

Arbitration award set aside; matter remitted for hearing de novo before a different commissioner; no order as to costs.

Orders

  • The arbitration award granted by the second respondent on 11 July 2021 under case number NWRB1195-18 is reviewed and set aside.
  • The matter is referred back to the first respondent for a hearing de novo before a commissioner other than the second respondent.