Nkabinde v Commission for Conciliation Mediation and Arbitration and Others (J1812/12) [2013] ZALCJHB 161 (30 July 2013)

Nkabinde v Commission for Conciliation Mediation and Arbitration and Others (J1812/12) [2013] ZALCJHB 161 (30 July 2013)

The court held that the determination of whether an incomplete arbitration record justifies remittal for re-arbitration or a stay of review proceedings is a matter for the reviewing court seized with the merits of the review application. The present application, seeking a declaratory order and permanent stay, was...

Source-derived case information.

Citation
[2013] ZALCJHB 161
Parties
Applicant: Wilfred Bonginkosi Nkabinde; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Commissioner Joseph Tsabadi NO; Respondent: SA Post Office Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
30 July 2013
Case Number
J1812/12
Procedural Posture
Stay Application / Application for Declaratory and Stay Order Prior to Review Hearing
Outcome
Application dismissed with costs.
Judges
Mthombeni
Legal Topics
Incomplete Arbitration Record, Stay of Review Proceedings, Remittal for De Novo Arbitration, Fair Hearing Rights
Labour Law Civil Procedure Incomplete Arbitration Record Stay of Review Proceedings Remittal for De Novo Arbitration Fair Hearing Rights

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Summary, issues, holding and outcome

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Parties

Wilfred Bonginkosi Nkabinde

Applicant

Commission for Conciliation Mediation and Arbitration

Respondent

Commissioner Joseph Tsabadi NO

Respondent

SA Post Office Limited

Respondent

Procedural Posture

Stay Application / Application for Declaratory and Stay Order Prior to Review Hearing

Legal Issues

  1. 1 Whether the incomplete arbitration record justifies a permanent stay of the review application.
  2. 2 Whether the matter should be referred back to the CCMA for a de novo arbitration before a new commissioner.
  3. 3 Whether the applicant's right to a fair hearing is prejudiced by proceeding with an incomplete record.

Ratio Decidendi

The court held that the determination of whether an incomplete arbitration record justifies remittal for re-arbitration or a stay of review proceedings is a matter for the reviewing court seized with the merits of the review application. The present application, seeking a declaratory order and permanent stay, was premature and not appropriate for decision at this stage. The court found that previous decisions support the principle that remittal is not automatic and must be decided by the court hearing the review. Accordingly, the application was dismissed, and costs were awarded against the applicant.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.