Primedia Outdoor (Pty) Ltd v Thlotlhalemaje NO and Others (JR2166/11) [2013] ZALCJHB 330 (8 November 2013)
The court found that the arbitrator committed a reviewable irregularity by considering the restraint provisions of clause 7 of the contract without affording the parties an opportunity to lead evidence or make submissions on its relevance. Additionally, the arbitrator failed to evaluate the relevance of a letter...
Source-derived case information.
- Citation
- [2013] ZALCJHB 330
- Parties
- Applicant: Primedia Outdoor (Pty) Ltd; Respondent: E Thlotlhalemaje N.O.; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Adrianne Damos
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR2166/11
- Procedural Posture
- Review Application / Judgment Delivered After Hearing on Review
- Outcome
- Arbitration award reviewed and set aside; matter remitted for rehearing before a different commissioner.
- Judges
- R Lagrange
- Legal Topics
- Review of Arbitration Award, Misconduct by Arbitrator, Relevance of Evidence, Remittal for Rehearing
Source-derived case record
Summary, issues, holding and outcome
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Parties
Primedia Outdoor (Pty) Ltd
Applicant
E Thlotlhalemaje N.O.
Respondent
The Commission for Conciliation, Mediation and Arbitration
Respondent
Adrianne Damos
Respondent
Procedural Posture
Review Application / Judgment Delivered After Hearing on Review
Legal Issues
- 1 Whether the arbitrator committed a reviewable irregularity by considering restraint provisions without allowing parties to address their relevance.
- 2 Whether the arbitrator failed to evaluate the relevance of a letter from the third respondent’s former attorneys.
- 3 Whether the arbitrator failed to consider differences between the 2003 and 2009 contracts relevant to the dispute.
Ratio Decidendi
The court found that the arbitrator committed a reviewable irregularity by considering the restraint provisions of clause 7 of the contract without affording the parties an opportunity to lead evidence or make submissions on its relevance. Additionally, the arbitrator failed to evaluate the relevance of a letter from the third respondent’s former attorneys and neglected to consider differences between the 2003 and 2009 contracts, which were material to the dispute. These failures amounted to misconduct and a failure to properly discharge the arbitrator’s duties. Consequently, the arbitration award was reviewed and set aside, and the matter was remitted for a fresh hearing before a...
Court Disposition
Arbitration award reviewed and set aside; matter remitted for rehearing before a different commissioner.
Orders
- The arbitration award dated 8 August 2011 in case GAJB2928-10 is reviewed and set aside.
- No order as to costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case no: JR 2166/11
Not reportable
In the matter between:
PRIMEDIA OUTDOOR (PTY) LTD Applicant
and
E TLHOTLHALEMAJE N.O. First
Respondent
THE COMMISSION FOR Second
Respondent
CONCILIATION, MEDIATION AND ARBITRATION
ADRIANNE DAMOS Third
Respondent
Heard: 8 November 2013
Delivered: 8 November 2013
Summary: (Reviewa – arbitrator considered evidence not properly before him and failed to consider relevant evidence-remitted back for rehearing on existing record and limited fresh evidence)
EX TEMPORE JUDGMENT
LAGRANGE, J
[1] Having considered the matter and having heard the applicant's representative and the third respondent, who appeared in person, I find that:
1.1 The first respondent committed a reviewable irregularity in taking account of the restraint provisions of clause 7 of the contract between the applicant and Adelmo CC dated 9 February 2009 without giving the parties an opportunity to lead evidence or make submissions on its relevance.
1.2 The first respondent committed misconduct in relation to his duties in failing to evaluate the relevance of the letter from the third respondent’s former attorneys dated 22 September 2010.
1.3 The first respondent failed to give consideration to differences between the 2003 and 2009 contracts between Adelmo CC and the applicant, which were relevant to his decision.
[2] In the circumstances, the arbitrator's award dated 8 August 2011 in the case numbered GAJB2928-10 is reviewed and set aside.
[3] No order is made as to costs.
[4] The matter is remitted back to the second respondent which must convene a fresh hearing before a commissioner other than the first respondent within 30 days of receipt of this order.
[5] The record at the hearing referred to in paragraph [4] above shall be the record in this review application, save that the parties may lead such additional evidence and make such additional submissions in respect of the issues identified in paragraphs 1.1, 1.2 and 1.3 above.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: H
Lee of Snyman Attorneys
THIRD RESPONDENT: In person