Mulibana and Another v SEA World (Pty) Ltd and Others (JR2501/09) [2019] ZALCJHB 140 (31 January 2019)

Mulibana and Another v SEA World (Pty) Ltd and Others (JR2501/09) [2019] ZALCJHB 140 (31 January 2019)

The court found that the arbitrator did not commit any reviewable irregularity. The arbitrator reasonably concluded, based on the evidence, that both applicants were responsible for the stock and that the misappropriation of the chicken was attributable to them. The supplementary affidavit filed years late was inadmissible due to lack of condonation. The delay in prosecuting the review application was unjustified and prejudicial. The applicants' conduct warranted a costs order against them, jointly and severally.

Citation
[2019] ZALCJHB 140
Parties
Applicant: Solomon Mulibana; Applicant: Owen Mphala; Respondent: SEA World (Pty) Ltd; Respondent: Commissioner, Thulani Akim; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
31 January 2019
Case Number
JR2501/09
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application dismissed with costs against the applicants and the union, jointly and severally.
Judges
Van Niekerk
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Gross Irregularity, Condonation, Costs Award
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Gross Irregularity Condonation Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Solomon Mulibana

Applicant

Owen Mphala

Applicant

SEA World (Pty) Ltd

Respondent

Commissioner, Thulani Akim

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a reviewable irregularity in finding the applicants guilty of misconduct.
  2. 2 Whether the supplementary affidavit filed out of time should be admitted.
  3. 3 Whether the delay in prosecution of the review application should affect the outcome.

Ratio Decidendi

The court found that the arbitrator did not commit any reviewable irregularity. The arbitrator reasonably concluded, based on the evidence, that both applicants were responsible for the stock and that the misappropriation of the chicken was attributable to them. The supplementary affidavit filed years late was inadmissible due to lack of condonation. The delay in prosecuting the review application was unjustified and prejudicial. The applicants' conduct warranted a costs order against them, jointly and severally.

Court Disposition

Application dismissed with costs against the applicants and the union, jointly and severally.

Orders

  • The application is dismissed.
  • The Food and Allied Workers Union, and the first and second applicants are to pay the costs of the application, jointly and severally, the one paying the other to be absolved.