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South Africa Judgment

Labour Court Durban

Miya v Kalaparsad t/a Nikiels Coach Tours and Others (D426/08) [2009] ZALCD 21 (9 February 2009)

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Professional case brief

Research organized from the available case record

Source document

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 Jafta

A Kalaparsad t/a Nikiels Coach Tours

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Hilda Grobler

Respondent

03

Procedural history

  1. Posture

    Review Application / Judgment

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

Labour Court Durban

Judgment

[2009] ZALCD 21

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

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)

Case cited

Labour Relations Act, 66 of 1995

Legislation

Legislation referenced in the available case record.

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