Miya v Kalaparsad t/a Nikiels Coach Tours and Others (D426/08) [2009] ZALCD 21 (9 February 2009)
- Citation
- [2009] ZALCD 21
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Durban
- Panel
- Pillay D
- Case number
- D426/08
More details
- Court
- Labour Court Durban
- Panel
- Pillay D
- Case number
- D426/08
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found no evidence in the arbitration transcript to support the applicant's contention that the commissioner interfered unduly with his cross-examination of the employer. The arbitrator maintained control over the proceedings in accordance with her terms of reference, but did not prevent the applicant from exercising his rights. Furthermore, the applicant failed to establish that any alleged restriction on cross-examination could have revealed dishonesty or materially affected the outcome. The application for review was therefore dismissed.
Court disposition
Application for review dismissed.
Orders
- The application for review is dismissed.
02
Material facts
Parties
Buhle Zamokwakhe Miya
Applicant Counsel: Mr JaftaA Kalaparsad t/a Nikiels Coach Tours
RespondentCommission for Conciliation, Mediation and Arbitration
RespondentCommissioner Hilda Grobler
Respondent03
Procedural history
Posture
Review Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the commissioner denied the applicant a fair opportunity to cross-examine the employer.
- 02
Whether the arbitrator's interventions in the proceedings amounted to procedural unfairness.
Party arguments
- Applicant
- The applicant contended that the commissioner did not allow him a fair opportunity to cross-examine the first respondent, the employer, during the arbitration proceedings. He argued that the arbitrator's interventions unduly restricted his ability to challenge the employer's evidence and that this amounted to procedural unfairness.
- Respondent
- No appearance was made for the respondent. The record does not reflect any argument presented on behalf of the respondent.
05
Court’s reasoning
Legal principles
- 01
Labour Relations Act, 66 of 1995
A party alleging procedural unfairness must demonstrate not only that they were prevented from asking questions, but also that such prevention could have affected the outcome by exposing dishonesty or material facts.
- 02
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)
Arbitrators are entitled to steer proceedings within their terms of reference, provided they do not impede the parties' rights to a fair hearing.
06
Ratio, limits and disposition
Ratio decidendi
The court found no evidence in the arbitration transcript to support the applicant's contention that the commissioner interfered unduly with his cross-examination of the employer. The arbitrator maintained control over the proceedings in accordance with her terms of reference, but did not prevent the applicant from exercising his rights. Furthermore, the applicant failed to establish that any alleged restriction on cross-examination could have revealed dishonesty or materially affected the outcome. The application for review was therefore dismissed.
Obiter and limits
- It is insufficient for a party to merely allege that they were prevented from asking questions; they must show how such prevention could have impacted the fairness of the proceedings.
- Arbitrators must balance procedural control with the parties' rights to a fair hearing, but interventions that do not materially impede those rights are permissible.
Court disposition
Application for review dismissed.
- The application for review is dismissed.
Source and reliance status
Labour Court Durban
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Durban
Judgment
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO:D426/08
DATE:9 FEBRUARY 2009
In the matter between
BUHLE
ZAMOKWAKHE
MIYA
Applicant
and
A KALAPARSAD T/A NIKIELS COACH
TOURS
First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
COMMISSIONER
HILDA GROBLER Third Respondent
JUDGMENT
PILLAY D, J
This is an application to review and set aside the award of the third respondent commissioner. The principle complaint against the award is that the commissioner did not allow the applicant a fair opportunity to cross examine the first respondent, the employer.
The Court has debated at length the evidence from the transcripts with Mr Jafta who appears for the applicant, and it has not found any evidence to support the contention that the arbitrator interfered unduly with the applicant’s cross examination. The arbitrator was keen to hold the parties to her terms of reference and to that extent steered the proceedings.
Furthermore, it is not enough for the applicant to say that he was prevented from asking a question. The applicant has to go further and say that he might have shown that the employer was lying. That case has not been made out in the pleadings. The applicant has failed to establish that in the circumstances of this case, the arbitrator’s interventions in the proceedings impeded his cross examination unfairly. The application for review is dismissed.
___
Pillay D, J
Date of Editing: 22 May 2009
Appearances:
For the Applicant: Mr Jafta – Jafta Inc
For the Respondent: No Appearance
IN
THE HIGH COURT OF SOUTH AFRICA
DURBAN
AND COAST LOCAL DIVISION
CASE NO
:
D426/08
DATE
:
BUHLE
ZAMOKWAKHE
MIYA
Applicant
A KALAPARSAD T/A NIKIELS COACH
TOURS
Respondent
BEFORE
THE HONOURABLE MADAM JUSTICE PILLAY
ON
BEHALF OF APPLICANT :
MR JAFTA
REPORT ON
RECORDING Clear recording.
TRANSCRIBER’S
CERTIFICATE
This is, to the best abilities of the transcriber, a true and correct transcript of the proceedings, where audible, recorded by means of a mechanical recorder in the matter:
B Z MIYA v A KALAPARSAD t/a NIKIELS COACH TOURS
CASE NO
:
D426/08
COURT
OF ORIGIN
:
DURBAN
TRANSCRIBER
:
MRS S M BOYCE
DATE
COMPLETED
:
10 MARCH 2009
NO
OF TAPES
:
CD
NO
OF PAGES
:
44
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