Msagala v Transnet Soc Ltd and Others (J492/2017) [2017] ZALCJHB 370; (2018) 39 ILJ 259 (LC); [2018] 2 BLLR 193 (LC) (9 October 2017)

Msagala v Transnet Soc Ltd and Others (J492/2017) [2017] ZALCJHB 370; (2018) 39 ILJ 259 (LC); [2018] 2 BLLR 193 (LC) (9 October 2017)

The court held that an arbitrator appointed under section 188A of the Labour Relations Act acts independently under the auspices of the bargaining council and does not represent the employer. The arbitrator exercises statutory powers and is not bound by the employer's disciplinary code or procedures. Consequently, the ruling refusing discovery of forensic reports was not made by the employer or its representative, and thus is not reviewable under section 158(1)(h) on the basis of legality. The application was dismissed as the applicant conceded that, in these circumstances, the review could not succeed.

Citation
[2017] ZALCJHB 370
Parties
Applicant: Msagala, Herbert; Respondent: Transnet SOC Ltd; Respondent: Nagdee, Yusuf N.O.; Respondent: Transnet Bargaining Council
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 October 2017
Case Number
J492/2017
Procedural Posture
Review Application / Urgent Application; Interlocutory Ruling Review
Outcome
Application dismissed with costs.
Judges
Van Niekerk
Legal Topics
Section 158 1 H Review, Section 188a Inquiry, Discovery of Documents, Arbitrator Powers, Principle of Legality
Labour Law Civil Procedure Section 158 1 H Review Section 188a Inquiry Discovery of Documents Arbitrator Powers Principle of Legality

Case Brief

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Parties

Msagala, Herbert

Applicant

Transnet SOC Ltd

Respondent

Nagdee, Yusuf N.O.

Respondent

Transnet Bargaining Council

Respondent

Procedural Posture

Review Application / Urgent Application; Interlocutory Ruling Review

Legal Issues

  1. 1 Whether the arbitrator appointed under section 188A acts as a representative of the employer or independently under the auspices of the bargaining council.
  2. 2 Whether the ruling refusing discovery of forensic reports is reviewable under section 158(1)(h) on the basis of legality.
  3. 3 Whether the arbitrator's ruling constitutes the exercise of public power subject to review.

Ratio Decidendi

The court held that an arbitrator appointed under section 188A of the Labour Relations Act acts independently under the auspices of the bargaining council and does not represent the employer. The arbitrator exercises statutory powers and is not bound by the employer's disciplinary code or procedures. Consequently, the ruling refusing discovery of forensic reports was not made by the employer or its representative, and thus is not reviewable under section 158(1)(h) on the basis of legality. The application was dismissed as the applicant conceded that, in these circumstances, the review could not succeed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed, with costs.