Sajid v Mahomed NO and Others (D237/99) [1999] ZALC 190 (25 June 1999)

Sajid v Mahomed NO and Others (D237/99) [1999] ZALC 190 (25 June 1999)

The Labour Court found that the CCMA arbitrator's award upholding the substantive fairness of the applicant's suspension was not rationally connected to the evidence before her, as there was no proof of a trustee decision to hold a further inquiry or any new grounds for suspension after the withdrawal of all charges. The arbitrator's acceptance of a pending inquiry was unsupported by evidence, and her findings were self-contradictory, as she simultaneously found the suspension substantively fair and the respondent's defence frivolous and vexatious. The Court held that the applicant's suspension was substantively unfair and that the respondent was not entitled to institute further...

Citation
[1999] ZALC 190
Parties
Applicant: Ghulam Murtuza Sajid; Respondent: Abubaker Mahomed N.O.; Respondent: Abubaker Ismael N.O.; Respondent: Gora Essay N.O.; Respondent: Haroun Ganie N.O.; Respondent: Mahomed Joosub N.O.; Respondent: Ahmed Vally Mohamed N.O.; Respondent: Abdul Wahab N.O.; Respondent: Abdul Malek N.O.; Respondent: Abu Thair Khatib N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Dhayanithie Pillay N.O.
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
25 June 1999
Case Number
D237/99
Procedural Posture
Review Application / Judgment After Urgent Application and Review of Arbitration Award
Outcome
The rule nisi is confirmed. The applicant's suspension is set aside as substantively unfair. Declaratory and interdictory relief is granted to prevent further suspension or inquiry based on matters predating 11 December 1998. The first to ninth respondents are ordered to pay the applicant's costs jointly and severally.
Judges
R M M Zondo
Legal Topics
Unfair Suspension, Residual Unfair Labour Practice, Arbitration Review, Reinstatement, Procedural Fairness, Declaratory and Interdictory Relief
Labour Law Civil Procedure Unfair Suspension Residual Unfair Labour Practice Arbitration Review Reinstatement Procedural Fairness Declaratory and Interdictory Relief

Case Brief

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Parties

Ghulam Murtuza Sajid

Applicant

Abubaker Mahomed N.O.

Respondent

Abubaker Ismael N.O.

Respondent

Gora Essay N.O.

Respondent

Haroun Ganie N.O.

Respondent

Mahomed Joosub N.O.

Respondent

Ahmed Vally Mohamed N.O.

Respondent

Abdul Wahab N.O.

Respondent

Abdul Malek N.O.

Respondent

Abu Thair Khatib N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Dhayanithie Pillay N.O.

Respondent

Procedural Posture

Review Application / Judgment After Urgent Application and Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant's continued suspension after withdrawal of disciplinary charges was substantively and procedurally fair.
  2. 2 Whether the CCMA arbitrator's award upholding the substantive fairness of the suspension was reviewable and should be set aside.
  3. 3 Whether the respondent was entitled to institute further inquiries or disciplinary action based on conduct predating 11 December 1998.

Ratio Decidendi

The Labour Court found that the CCMA arbitrator's award upholding the substantive fairness of the applicant's suspension was not rationally connected to the evidence before her, as there was no proof of a trustee decision to hold a further inquiry or any new grounds for suspension after the withdrawal of all charges. The arbitrator's acceptance of a pending inquiry was unsupported by evidence, and her findings were self-contradictory, as she simultaneously found the suspension substantively fair and the respondent's defence frivolous and vexatious. The Court held that the applicant's suspension was substantively unfair and that the respondent was not entitled to institute further...

Court Disposition

The rule nisi is confirmed. The applicant's suspension is set aside as substantively unfair. Declaratory and interdictory relief is granted to prevent further suspension or inquiry based on matters predating 11 December 1998. The first to ninth respondents are ordered to pay the applicant's costs jointly and severally.

Orders

  • Paragraphs 2 and 3 of the CCMA arbitration award are reviewed and set aside.
  • The applicant's suspension is set aside and lifted in its entirety.