Miya v Kalaparsad t/a Nikiels Coach Tours and Others (D426/08) [2009] ZALCD 21 (9 February 2009)
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...
Source-derived case information.
- Citation
- [2009] ZALCD 21
- Parties
- Applicant: Buhle Zamokwakhe Miya; Respondent: A Kalaparsad t/a Nikiels Coach Tours; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Hilda Grobler
- Court
- Labour Court Durban
- Jurisdiction
- South Africa
- Case Number
- D426/08
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application for review dismissed.
- Judges
- Pillay D
- Legal Topics
- Review of Arbitration Award, Procedural Fairness, Cross Examination Rights
Source-derived case record
Summary, issues, holding and outcome
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Parties
Buhle Zamokwakhe Miya
Applicant
A Kalaparsad t/a Nikiels Coach Tours
Respondent
Commission for Conciliation, Mediation and Arbitration
Respondent
Commissioner Hilda Grobler
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the commissioner denied the applicant a fair opportunity to cross-examine the employer.
- 2 Whether the arbitrator's interventions in the proceedings amounted to procedural unfairness.
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.
Court Disposition
Application for review dismissed.
Orders
- The application for review is dismissed.
Full Case Text
Judgment text and source record
61 paragraphs
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