SADTU and Others v Jajbhay and Others (J404/00) [2000] ZALC 73; [2001] 1 BLLR 92 (LC) (8 August 2000)

SADTU and Others v Jajbhay and Others (J404/00) [2000] ZALC 73; [2001] 1 BLLR 92 (LC) (8 August 2000)

The arbitrator failed to distinguish between promotion posts and level-one posts, as required by the Human Resources Circular 2 of 1997. This failure constituted a material error of fact and a latent irregularity, preventing a fair determination of the dispute. The error amounted to a gross irregularity under section 33(1) of the Arbitration Act, justifying the setting aside of the award. The delay in filing the review application was adequately explained by the annual shut-down period and, given the strong prospects of success, condonation was granted. The matter could not be determined on the papers due to the absence of a proper record and was referred back for arbitration anew.

Citation
[2000] ZALC 73
Parties
Applicant: SADTU; Applicant: Chabeli & 5 Others; Respondent: Adv Mahomed Jajbhay; Respondent: Head of the Free State Education Department; Respondent: Education Labour Relations Council
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
8 August 2000
Case Number
J404/00
Procedural Posture
Review Application / Application for Review of Arbitration Award; Condonation for Late Filing
Outcome
Application for review succeeds; arbitration award set aside; matter referred for arbitration anew; no order as to costs.
Judges
Basson
Legal Topics
Review of Arbitration Award, Condonation for Late Filing, Gross Irregularity, Promotion Post Procedure, Arbitration Act Section 33
Labour Law Civil Procedure Review of Arbitration Award Condonation for Late Filing Gross Irregularity Promotion Post Procedure Arbitration Act Section 33

Case Brief

Summary, issues, holding and outcome

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Parties

SADTU

Applicant

Chabeli & 5 Others

Applicant

Adv Mahomed Jajbhay

Respondent

Head of the Free State Education Department

Respondent

Education Labour Relations Council

Respondent

Procedural Posture

Review Application / Application for Review of Arbitration Award; Condonation for Late Filing

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by failing to distinguish between promotion posts and level-one posts.
  2. 2 Whether the delay in filing the review application should be condoned.
  3. 3 Whether the arbitration award should be set aside and the matter referred for arbitration anew.

Ratio Decidendi

The arbitrator failed to distinguish between promotion posts and level-one posts, as required by the Human Resources Circular 2 of 1997. This failure constituted a material error of fact and a latent irregularity, preventing a fair determination of the dispute. The error amounted to a gross irregularity under section 33(1) of the Arbitration Act, justifying the setting aside of the award. The delay in filing the review application was adequately explained by the annual shut-down period and, given the strong prospects of success, condonation was granted. The matter could not be determined on the papers due to the absence of a proper record and was referred back for arbitration anew.

Court Disposition

Application for review succeeds; arbitration award set aside; matter referred for arbitration anew; no order as to costs.

Orders

  • The arbitration award made by the first respondent under the auspices of the Independent Mediation Services of South Africa is reviewed and set aside.
  • The matter is referred back to the third respondent, the Education Labour Relations Council, for arbitration anew with a new arbitrator appointed.