South Gold Exploration v Commission for Conciliation Mediation and Arbitration and Others (JR2068/09) [2013] ZALCJHB 12; (2013) 34 ILJ 2327 (LC) (6 February 2013)

South Gold Exploration v Commission for Conciliation Mediation and Arbitration and Others (JR2068/09) [2013] ZALCJHB 12; (2013) 34 ILJ 2327 (LC) (6 February 2013)

The court found that the arbitrator had misdirected himself by failing to properly consider the evidence, particularly the respondent's own statement confirming his presence and failure to prevent unsafe work practices. The arbitrator's focus on the probation clause was irrelevant to the central issue of negligence...

Source-derived case information.

Citation
[2013] ZALCJHB 12
Parties
Applicant: Southgold Exploration; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Thamsanqa Nkambule NO; Respondent: Samuel Manquthu
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
6 February 2013
Case Number
JR2068/09
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal of the third respondent is declared substantively and procedurally fair.
Judges
J Mothibi
Legal Topics
Unfair Dismissal, Arbitration Review, Procedural Fairness, Substantive Fairness, Mine Health and Safety, Probation Period
Labour Law Unfair Dismissal Arbitration Review Procedural Fairness Substantive Fairness Mine Health and Safety Probation Period

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Summary, issues, holding and outcome

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Parties

Southgold Exploration

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Thamsanqa Nkambule NO

Respondent

Samuel Manquthu

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator misdirected himself by failing to apply his mind to the evidence before him.
  2. 2 Whether the dismissal of the third respondent was substantively and procedurally fair.
  3. 3 Whether the arbitrator's award was justifiable in relation to the reasons given.

Ratio Decidendi

The court found that the arbitrator had misdirected himself by failing to properly consider the evidence, particularly the respondent's own statement confirming his presence and failure to prevent unsafe work practices. The arbitrator's focus on the probation clause was irrelevant to the central issue of negligence and safety. The respondent's testimony was found to be unreliable and contradicted by documentary evidence. The court held that both substantive and procedural fairness were present in the dismissal, and the arbitrator's award was unjustifiable and unreasonable in the circumstances. The award was reviewed and set aside, and substituted with a finding that the dismissal was fair.

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of the third respondent is declared substantively and procedurally fair.

Orders

  • The arbitration award issued by the Second Respondent under case number GAJB6292/09 is reviewed and set aside.
  • The dismissal of the Third Respondent is declared substantively and procedurally fair.