Motsoasele v Ward NO and Others (P159/2014) [2014] ZALCPE 22 (12 August 2014)

Motsoasele v Ward NO and Others (P159/2014) [2014] ZALCPE 22 (12 August 2014)

The Labour Court found that the applicant was denied his right to be heard when the commissioner refused to entertain his application to re-open his case, without affording him an opportunity to present reasons. The refusal was extra curial and violated the principles of natural justice. The court held that alternative remedies such as rescission or review were not adequate, as the applicant's evidence would not be considered if the arbitration proceeded without his case being re-opened. Judicial intervention was warranted to prevent grave injustice. The applicant acted with urgency and the balance of convenience favoured him. The interim order was confirmed, and costs were awarded...

Citation
[2014] ZALCPE 22
Parties
Applicant: Thamsanqa Motsoasele; Respondent: Carmen Ward N.O; Respondent: Jana Burger N.O; Respondent: Free State Gambling and Liquor Authority
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
12 August 2014
Case Number
P159/2014
Procedural Posture
Urgent Application / Return Date on Interim Order; Final Determination of Application
Outcome
The rule nisi issued on 4 June 2014 is confirmed with costs against the third respondent.
Judges
Lallie
Legal Topics
Unfair Dismissal, Right to Be Heard, Ccma Arbitration Procedure, Judicial Intervention in Arbitration
Labour Law Unfair Dismissal Right to Be Heard Ccma Arbitration Procedure Judicial Intervention in Arbitration

Case Brief

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Parties

Thamsanqa Motsoasele

Applicant

Carmen Ward N.O

Respondent

Jana Burger N.O

Respondent

Free State Gambling and Liquor Authority

Respondent

Procedural Posture

Urgent Application / Return Date on Interim Order; Final Determination of Application

Legal Issues

  1. 1 Whether the Labour Court should intervene in an uncompleted arbitration where the commissioner refused to entertain the employee's application to re-open his case.
  2. 2 Whether the applicant was denied the right to be heard at the arbitration.
  3. 3 Whether alternative remedies such as rescission or review were available and adequate.

Ratio Decidendi

The Labour Court found that the applicant was denied his right to be heard when the commissioner refused to entertain his application to re-open his case, without affording him an opportunity to present reasons. The refusal was extra curial and violated the principles of natural justice. The court held that alternative remedies such as rescission or review were not adequate, as the applicant's evidence would not be considered if the arbitration proceeded without his case being re-opened. Judicial intervention was warranted to prevent grave injustice. The applicant acted with urgency and the balance of convenience favoured him. The interim order was confirmed, and costs were awarded...

Court Disposition

The rule nisi issued on 4 June 2014 is confirmed with costs against the third respondent.

Orders

  • The interim order restraining the first and second respondents from issuing any award on the merits of the arbitration is confirmed.
  • The first respondent is ordered to enrol the applicant's application to reopen his case in accordance with the CCMA Rules.