Nampak Divfoods (Pty) Ltd v Dlamini and Others (D727/2021) [2024] ZALCD 13 (6 May 2024)

Nampak Divfoods (Pty) Ltd v Dlamini and Others (D727/2021) [2024] ZALCD 13 (6 May 2024)

The court found that the arbitrator committed a gross irregularity by failing to rule timeously on the admissibility of the CTP report and by not advising the applicant to call an expert witness to verify its accuracy. This failure denied the parties a fair hearing and compromised the procedural fairness of the arbitration. The arbitrator's exclusion of the CTP report as hearsay evidence only at the end of the proceedings was material to the outcome and prevented the applicant from properly presenting its case. The court held that these irregularities rendered the award unreasonable and ordered that the matter be remitted for a hearing de novo before a different commissioner.

Citation
[2024] ZALCD 13
Parties
Applicant: Nampak Divfoods (Pty) Ltd; Respondent: Ayanda Precious Dlamini; Respondent: National Union of Metal Workers of South Africa (NUMSA); Respondent: Mandlakhe Khawula N. O; Respondent: Metal and Engineering Industries Bargaining Council
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
6 May 2024
Case Number
D727/2021
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside; matter remitted for hearing de novo before a different commissioner; no order as to costs.
Judges
N Govender
Legal Topics
Unfair Dismissal, Hearsay Evidence, Helping Hand Principle, Admissibility of Evidence, Arbitration Review
Labour Law Civil Procedure Unfair Dismissal Hearsay Evidence Helping Hand Principle Admissibility of Evidence Arbitration Review

Case Brief

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Parties

Nampak Divfoods (Pty) Ltd

Applicant

Ayanda Precious Dlamini

Respondent

National Union of Metal Workers of South Africa (NUMSA)

Respondent

Mandlakhe Khawula N. O

Respondent

Metal and Engineering Industries Bargaining Council

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by failing to rule timeously on the admissibility of the CTP report.
  2. 2 Whether the arbitrator failed to apply the helping hand principle by not advising the applicant to call an expert witness.
  3. 3 Whether the exclusion of the CTP report as hearsay evidence materially affected the fairness of the arbitration proceedings.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by failing to rule timeously on the admissibility of the CTP report and by not advising the applicant to call an expert witness to verify its accuracy. This failure denied the parties a fair hearing and compromised the procedural fairness of the arbitration. The arbitrator's exclusion of the CTP report as hearsay evidence only at the end of the proceedings was material to the outcome and prevented the applicant from properly presenting its case. The court held that these irregularities rendered the award unreasonable and ordered that the matter be remitted for a hearing de novo before a different commissioner.

Court Disposition

Application for review granted; arbitration award set aside; matter remitted for hearing de novo before a different commissioner; no order as to costs.

Orders

  • The arbitration award is set aside.
  • The matter is referred to the Fourth Respondent for an arbitration hearing de novo before a commissioner other than the Third Respondent.