Taku v Sekhanisa and Others (JR1242/2016) [2019] ZALCJHB 13; [2019] 6 BLLR 588 (LC) (22 January 2019)

Taku v Sekhanisa and Others (JR1242/2016) [2019] ZALCJHB 13; [2019] 6 BLLR 588 (LC) (22 January 2019)

The arbitrator committed a reviewable irregularity by admitting and relying on hearsay evidence from SAA witnesses without the primary witness, Ms Hughes, testifying at arbitration. The arbitrator failed to assess the probative value of the evidence, did not properly weigh the applicant's direct testimony, and did not apply the statutory requirements for admitting hearsay evidence in the interest of justice. The absence of Ms Hughes' testimony meant that the SAA's case lacked direct evidence of the alleged misconduct, and the applicant's version remained unchallenged. The arbitrator's decision was not one that a reasonable decision maker could reach. Accordingly, the arbitration award...

Citation
[2019] ZALCJHB 13
Parties
Applicant: Gabriel Mothusi Taku; Respondent: Thabo Sekhanisa N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: South African Airways (SOC) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 January 2019
Case Number
JR1242/2016
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside; dispute remitted for hearing de novo; no order as to costs.
Judges
Prinsloo
Legal Topics
Unfair Dismissal, Admission of Hearsay Evidence, Review of Arbitration Award, Procedural Fairness, Remittal for De Novo Hearing
Labour Law Civil Procedure Unfair Dismissal Admission of Hearsay Evidence Review of Arbitration Award Procedural Fairness Remittal for De Novo Hearing

Case Brief

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Parties

Gabriel Mothusi Taku

Applicant

Thabo Sekhanisa N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

South African Airways (SOC) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a reviewable irregularity by admitting and relying on hearsay evidence without proper corroboration.
  2. 2 Whether the applicant was denied a fair hearing at arbitration due to the absence of the primary witness.
  3. 3 Whether the arbitration award should be set aside and the dispute remitted for a hearing de novo.

Ratio Decidendi

The arbitrator committed a reviewable irregularity by admitting and relying on hearsay evidence from SAA witnesses without the primary witness, Ms Hughes, testifying at arbitration. The arbitrator failed to assess the probative value of the evidence, did not properly weigh the applicant's direct testimony, and did not apply the statutory requirements for admitting hearsay evidence in the interest of justice. The absence of Ms Hughes' testimony meant that the SAA's case lacked direct evidence of the alleged misconduct, and the applicant's version remained unchallenged. The arbitrator's decision was not one that a reasonable decision maker could reach. Accordingly, the arbitration award...

Court Disposition

Application for review granted; arbitration award set aside; dispute remitted for hearing de novo; no order as to costs.

Orders

  • The late filing of the application for review is condoned.
  • The arbitration award issued on 8 May 2016 under case number GAEK10374-15 is reviewed and set aside.