Modiba v Clicks Retailers (Pty) Ltd and Others (JR986/23) [2025] ZALCJHB 323 (31 July 2025)

Modiba v Clicks Retailers (Pty) Ltd and Others (JR986/23) [2025] ZALCJHB 323 (31 July 2025)

The court found that the Commissioner committed a reviewable irregularity by not allowing Mathye, a key witness, to testify and have his evidence tested under cross-examination. The Commissioner relied on hearsay evidence and speculation rather than probabilities established by tested evidence. This approach rendered the award unreasonable and outside the bounds of what a reasonable decision-maker could reach. The court also found that the delays in filing the review application and supplementary affidavit were short and adequately explained, and condonation was just and equitable. Consequently, the arbitration award was set aside and the matter remitted for a fresh hearing before a...

Citation
[2025] ZALCJHB 323
Parties
Applicant: Elizabeth Sabi Modiba; Respondent: Clicks Retailers (Pty) Ltd; Respondent: Michael Howitz; Respondent: The Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
31 July 2025
Case Number
JR986/23
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application granted; arbitration award set aside; matter remitted for rehearing; no order as to costs.
Judges
L Erasmus
Legal Topics
Review of Arbitration Award, Condonation, Substantive Fairness, Hearsay Evidence, Remittal, Costs Order
Labour Law Civil Procedure Review of Arbitration Award Condonation Substantive Fairness Hearsay Evidence Remittal Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Elizabeth Sabi Modiba

Applicant

Clicks Retailers (Pty) Ltd

Respondent

Michael Howitz

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner committed a reviewable irregularity by relying on hearsay evidence and not allowing a key witness to testify.
  2. 2 Whether the arbitration award was reasonable and justified on the evidence presented.
  3. 3 Whether condonation should be granted for the late filing of the review application and supplementary affidavit.

Ratio Decidendi

The court found that the Commissioner committed a reviewable irregularity by not allowing Mathye, a key witness, to testify and have his evidence tested under cross-examination. The Commissioner relied on hearsay evidence and speculation rather than probabilities established by tested evidence. This approach rendered the award unreasonable and outside the bounds of what a reasonable decision-maker could reach. The court also found that the delays in filing the review application and supplementary affidavit were short and adequately explained, and condonation was just and equitable. Consequently, the arbitration award was set aside and the matter remitted for a fresh hearing before a...

Court Disposition

Review application granted; arbitration award set aside; matter remitted for rehearing; no order as to costs.

Orders

  • Condonation is granted for the late filing of the review application and supplementary affidavit.
  • The arbitration award dated 15 March 2023 under case number GAJB26626-22 is reviewed and set aside.