Tshabalala v Commission for Conciliation Mediation and Arbitration and Others (JR 269/2008) [2011] ZALCJHB 183 (13 July 2011)

Tshabalala v Commission for Conciliation Mediation and Arbitration and Others (JR 269/2008) [2011] ZALCJHB 183 (13 July 2011)

The court found that the applicant provided a proper explanation for the late filing of the review application and that it was in the interests of justice to grant condonation. The arbitrator's refusal to allow legal representation was unreasonable, as the dispute did not concern misconduct or incapacity, and the...

Source-derived case information.

Citation
[2011] ZALCJHB 183
Parties
Applicant: Khazamula Phineas Tshabalala; Respondent: Commission for Conciliation, Mediation and Arbitration (CCMA); Respondent: Thsepo Mashigo; Respondent: IQ Security Consultant
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 July 2011
Case Number
JR 269/2008
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is granted. The arbitration award is reviewed and set aside. The matter is referred back to the CCMA for rehearing before a different commissioner.
Judges
A Mosam
Legal Topics
Condonation, Legal Representation in Arbitration, Review of Arbitration Award, Unfair Dismissal
Labour Law Civil Procedure Condonation Legal Representation in Arbitration Review of Arbitration Award Unfair Dismissal

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Summary, issues, holding and outcome

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Parties

Khazamula Phineas Tshabalala

Applicant

Commission for Conciliation, Mediation and Arbitration (CCMA)

Respondent

Thsepo Mashigo

Respondent

IQ Security Consultant

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether condonation for the late filing of the review application should be granted.
  2. 2 Whether the arbitrator's refusal to allow legal representation was unreasonable.
  3. 3 Whether the arbitration award should be set aside due to procedural irregularity.

Ratio Decidendi

The court found that the applicant provided a proper explanation for the late filing of the review application and that it was in the interests of justice to grant condonation. The arbitrator's refusal to allow legal representation was unreasonable, as the dispute did not concern misconduct or incapacity, and the applicant was entitled to legal representation under Rule 25 of the CCMA Rules. The arbitrator's decision constituted a gross irregularity and was not reasonable. Consequently, the arbitration award was reviewed and set aside, and the matter was referred back to the CCMA to be heard by a different commissioner.

Court Disposition

The review application is granted. The arbitration award is reviewed and set aside. The matter is referred back to the CCMA for rehearing before a different commissioner.

Orders

  • The arbitration award rendered by the Second Respondent on 7 December 2007 is reviewed and set aside.
  • The matter is referred back to the First Respondent to be heard by a Commissioner other than the Second Respondent.