Mkhize v Antrobus SC and Another (JR1342/12) [2015] ZALCJHB 398 (13 November 2015)

Mkhize v Antrobus SC and Another (JR1342/12) [2015] ZALCJHB 398 (13 November 2015)

The Labour Court held that the grounds for reviewing a private arbitration award under section 33(1) of the Arbitration Act are strictly limited to misconduct, gross irregularity, or excess of powers. The applicant's complaints were found to be attempts to appeal the merits of the arbitrator's findings rather than legitimate grounds for review. The arbitrator had duly considered all relevant evidence, was not biased, and had acted within his powers. The applicant was given an opportunity for representation and to state his case but refused to participate in the disciplinary hearing. Allegations of procedural unfairness, bias, and failure to consider evidence were unfounded. The review...

Citation
[2015] ZALCJHB 398
Parties
Applicant: Thokozani Raymond J Mkhize; Respondent: Mark Antrobus SC (Arbitrator); Respondent: Bonitas Marketing (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 November 2015
Case Number
JR1342/12
Procedural Posture
Review Application / Judgment on Review of Private Arbitration Award
Outcome
Review application dismissed with costs on an attorney and client scale. Costs awarded against applicant and his attorney for interlocutory applications to strike out scandalous matter. Registrar directed to refer judgment to Law Society for investigation into attorney's conduct.
Judges
AC Basson
Legal Topics
Arbitration Act Section 33, Review of Private Arbitration, Procedural Fairness, Gross Irregularity, Misconduct by Arbitrator, Disciplinary Dismissal
Labour Law Civil Procedure Arbitration Act Section 33 Review of Private Arbitration Procedural Fairness Gross Irregularity Misconduct by Arbitrator Disciplinary Dismissal

Case Brief

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Parties

Thokozani Raymond J Mkhize

Applicant

Mark Antrobus SC (Arbitrator)

Respondent

Bonitas Marketing (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Private Arbitration Award

Legal Issues

  1. 1 Whether the private arbitration award dismissing the applicant was reviewable under section 33(1) of the Arbitration Act.
  2. 2 Whether the arbitrator committed misconduct, gross irregularity, or exceeded his powers in the conduct of the arbitration.
  3. 3 Whether the applicant was denied procedural fairness, including the right to legal representation and a fair disciplinary hearing.

Ratio Decidendi

The Labour Court held that the grounds for reviewing a private arbitration award under section 33(1) of the Arbitration Act are strictly limited to misconduct, gross irregularity, or excess of powers. The applicant's complaints were found to be attempts to appeal the merits of the arbitrator's findings rather than legitimate grounds for review. The arbitrator had duly considered all relevant evidence, was not biased, and had acted within his powers. The applicant was given an opportunity for representation and to state his case but refused to participate in the disciplinary hearing. Allegations of procedural unfairness, bias, and failure to consider evidence were unfounded. The review...

Court Disposition

Review application dismissed with costs on an attorney and client scale. Costs awarded against applicant and his attorney for interlocutory applications to strike out scandalous matter. Registrar directed to refer judgment to Law Society for investigation into attorney's conduct.

Orders

  • The applicant is ordered to pay the costs in the application to set security for costs reserved by Lagrange, J.
  • The applicant and Mr Shongwe are ordered to pay the costs of the first application to strike out on an opposed basis on the scale as between attorney and own client (pertaining to the applicant) and costs de bonis propriis against Mr Shongwe, the one paying the other to be absolved.