Ndawo v Tanker Services and Others (D638/10) [2016] ZALCD 26 (2 December 2016)

Ndawo v Tanker Services and Others (D638/10) [2016] ZALCD 26 (2 December 2016)

The court found that the applicant failed to establish any reviewable irregularity in the arbitration award. The arbitrator dealt with the matter fairly, gave both parties an opportunity to present their cases, and made findings that a reasonable decision-maker could have reached. The missing evidence of Nadar was reconstructed and agreed upon by the parties, and the absence of Southwick's evidence did not render the proceedings unfair or irrational. The applicant's arguments were essentially appeals against factual findings, not grounds for review. Condonation for late filing was granted, but the review application was dismissed as lacking merit.

Citation
[2016] ZALCD 26
Parties
Applicant: Phumulani Vitalis Ndawo; Respondent: Tanker Services; Respondent: Commissioner K. Charles; Respondent: The National Bargaining Council for the Road Freight Industry
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
2 December 2016
Case Number
D638/10
Procedural Posture
Review Application / Judgment After Hearing on Merits and Condonation
Outcome
Application for review dismissed; condonation for late filing granted; no order as to costs.
Judges
D H Gush
Legal Topics
Review of Arbitration Award, Condonation for Late Filing, Record Reconstruction, Gross Irregularity, Credibility of Evidence
Labour Law Civil Procedure Review of Arbitration Award Condonation for Late Filing Record Reconstruction Gross Irregularity Credibility of Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Phumulani Vitalis Ndawo

Applicant

Tanker Services

Respondent

Commissioner K. Charles

Respondent

The National Bargaining Council for the Road Freight Industry

Respondent

Procedural Posture

Review Application / Judgment After Hearing on Merits and Condonation

Legal Issues

  1. 1 Whether the arbitration award issued by the second respondent is reviewable on grounds of gross irregularity and irrationality.
  2. 2 Whether the incomplete record of arbitration proceedings justifies setting aside the award and referral for a hearing de novo.
  3. 3 Whether condonation for the late filing of the review application should be granted.

Ratio Decidendi

The court found that the applicant failed to establish any reviewable irregularity in the arbitration award. The arbitrator dealt with the matter fairly, gave both parties an opportunity to present their cases, and made findings that a reasonable decision-maker could have reached. The missing evidence of Nadar was reconstructed and agreed upon by the parties, and the absence of Southwick's evidence did not render the proceedings unfair or irrational. The applicant's arguments were essentially appeals against factual findings, not grounds for review. Condonation for late filing was granted, but the review application was dismissed as lacking merit.

Court Disposition

Application for review dismissed; condonation for late filing granted; no order as to costs.

Orders

  • Condonation for the late filing is granted.
  • The applicant's application is dismissed.