Magnum Security (Pty) Limited v Thobejane and Others (JR170/01) [2002] ZALC 199 (11 December 2002)
The court found that the arbitrator committed a gross irregularity by accepting the evidence of a witness who did not testify under oath and giving it greater weight than the evidence of a witness who did testify under oath. This conduct amounted to legal misconduct and a defect as contemplated by section 145 of the...
Source-derived case information.
- Citation
- [2002] ZALC 199
- Parties
- Applicant: Magnum Security (Pty) Limited; Respondent: Petrus Thobejane; Respondent: M J Ralefatane N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration
- Court
- Labour Court
- Jurisdiction
- South Africa
- Judgment Date
- 11 December 2002
- Case Number
- JR170/01
- Procedural Posture
- Review Application / Judgment
- Outcome
- The arbitration award is set aside and the dispute is referred back to the CCMA for arbitration by a different commissioner.
- Judges
- E Revelas
- Legal Topics
- Unfair Dismissal, Arbitration Review, Gross Irregularity, Legal Misconduct
Source-derived case record
Summary, issues, holding and outcome
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Parties
Magnum Security (Pty) Limited
Applicant
Petrus Thobejane
Respondent
M J Ralefatane N.O.
Respondent
Commission for Conciliation, Mediation and Arbitration
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the arbitration award should be set aside due to irregularities in the conduct of the arbitration proceedings.
- 2 Whether the arbitrator committed a gross irregularity by accepting unsworn evidence and giving it greater weight than sworn testimony.
Ratio Decidendi
The court found that the arbitrator committed a gross irregularity by accepting the evidence of a witness who did not testify under oath and giving it greater weight than the evidence of a witness who did testify under oath. This conduct amounted to legal misconduct and a defect as contemplated by section 145 of the Labour Relations Act. On this ground alone, the arbitration award was set aside and the dispute was referred back to the CCMA to be arbitrated by a different commissioner.
Court Disposition
The arbitration award is set aside and the dispute is referred back to the CCMA for arbitration by a different commissioner.
Orders
- The award of the second respondent is set aside.
- The dispute is referred back to the Commission for Conciliation, Mediation and Arbitration for arbitration.
Full Case Text
Judgment text and source record
27 paragraphs
Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR170/01
2002-12-11
In the matter between
MAGNUM SECURITY (PTY) LTIMITED Applicant
and
PETRUS THOBEJANE 1ST Respondent
M J RALEFATANE N.O. 2ND Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 3RD Respondent
________________________________________________________________
J U D G M E N T
REVELAS J:
1. The first respondent was dismissed by the applicant pursuant to a disciplinary inquiry where he was found guilty of certain misconduct. The first respondent then referred a dispute about an unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (âthe CCMAâ), where the second respondent arbitrated the matter under the auspices of the CCMA and made an award in favour of the first respondent, finding that the dismissal was unfair.
1. 2. The applicant has brought an application to review this arbitration award in terms of section 145 of the Labour Relations Act 66 of 1995 (âthe Actâ) and have it set aside.
3. There are several grounds upon which the applicant brought this application for review. However, this award falls to be set on the first ground and it is not necessary to consider any of the other grounds.
4. What the second respondent had done, is to accept the evidence of a witness (as reliable), who did not testify under oath. He disbelieved a witness who did testify on oath. In the matter of Morningside Farms v Van Staden No and another [1998] BLLR 488 LC, this Court held that an arbitrator who does not hear evidence of any party under oath commits a gross irregularity. It may have been that the Labour Court went too far in that case and applied a test which is too strict, but in a further case, Landman J held that arbitrators are entitled to conduct proceedings within their own discretion. However, conduct such as under consideration in this judgment, where some witnesses do testify under oath and some do not, and where unequal weight is given to their testimonies, does amount to an irregularity. Landman J described it as âlegal misconductâ and said it amounted to a defect contemplated in S145 of the Act (See: Mthembu & Mahomed Attorneys v CCMA and others (1998) 19 ILJ 144 (LC) at 148 A-C).
1. 5. In these circumstances alone, the award ought to be set aside and is referred back to the CCMA to be arbitrated by a different commissioner.
6. In the circumstances it is ordered that:
1. The award of the second respondent is set aside.
2. The dispute is referred back to the Commission of Conciliation, Mediation and Arbitration for arbitration.
_________________
E. Revelas
ON BEHALF OF APPLICANT: Mr. C Beckenstrater from MOODIE & ROBERTSON
ON BEHALF OF RESPONDENT: MOSEGOMI ATTORNYS. c/o
LEGODI Attorneys.