Mokgonyane v Mbatsana and Others (JR365/12) [2014] ZALCJHB 328 (22 August 2014)

Mokgonyane v Mbatsana and Others (JR365/12) [2014] ZALCJHB 328 (22 August 2014)

The court found that the first respondent misconducted himself by issuing two arbitration awards, with the second award being delivered after the review application was launched and without proper explanation under oath for the administrative error. The first arbitration award failed to deal with the substantial merits of the dispute and did not analyse the evidence or provide reasons for the findings. The conduct of the first respondent in varying the award without reference to the parties and only explaining the error after the review application constituted a gross irregularity. Consequently, the award was reviewable and had to be set aside.

Citation
[2014] ZALCJHB 328
Parties
Applicant: Mokgonyane Shirley Elizabeth; Respondent: Commissioner P Mbatsana; Respondent: CCMA; Respondent: Edcon t/a CNA Lynwood
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 August 2014
Case Number
JR365/12
Procedural Posture
Review Application / Judgment
Outcome
Review application succeeded; arbitration award set aside and dispute referred for hearing de novo before a different commissioner.
Judges
Leppan
Legal Topics
Review of Arbitration Award, Gross Irregularity, Procedural Fairness, Unfair Dismissal
Labour Law Civil Procedure Review of Arbitration Award Gross Irregularity Procedural Fairness Unfair Dismissal

Case Brief

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Parties

Mokgonyane Shirley Elizabeth

Applicant

Commissioner P Mbatsana

Respondent

CCMA

Respondent

Edcon t/a CNA Lynwood

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the issuing of a second arbitration award after the review application constitutes a gross irregularity.
  2. 2 Whether the first respondent exceeded his powers or misconducted himself in varying the award without reference to the parties.
  3. 3 Whether the first arbitration award adequately dealt with the merits and procedural fairness of the dismissal.

Ratio Decidendi

The court found that the first respondent misconducted himself by issuing two arbitration awards, with the second award being delivered after the review application was launched and without proper explanation under oath for the administrative error. The first arbitration award failed to deal with the substantial merits of the dispute and did not analyse the evidence or provide reasons for the findings. The conduct of the first respondent in varying the award without reference to the parties and only explaining the error after the review application constituted a gross irregularity. Consequently, the award was reviewable and had to be set aside.

Court Disposition

Review application succeeded; arbitration award set aside and dispute referred for hearing de novo before a different commissioner.

Orders

  • The review succeeds. The dispute about the applicant's unfair dismissal under case number GATW 11728-11 is referred back to the second respondent for a hearing de novo before a commissioner other than the first respondent.
  • There is no order as to costs.