IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case Number: J533/97        

In the matter between:

MUTUAL AND FEDERAL INSURANCE CO. LTD			Applicant

and

THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION				1st Respondent
N.D. PANDYA N.O.							2nd Respondent
SOUTH AFRICAN COMMERCIAL CATERING 
AND ALLIED WORKERS UNION				3rd Respondent
SAMMY PADU							4th Respondent 
__________________________________________________________________

JUDGMENT
________________________________________________________________

JALI A.J

This is an application in terms of section 145(1) and section 145(2)(a)(ii) of the Labour Relations Act 66 of 1995(“the Act”) in terms of which the applicant seeks an order:

 	 1.	Reviewing, correcting and setting aside the award made by the Second Respondent in terms of Section 138 of the Labour Relations Act, 66 of 1995 (“the Act”) reinstating the Fourth Respondent as from the date of his dismissal an 27 January 1997 on the same terms and conditions that existed at that time, under Case No. GA 3323.
	2.	Directing the first respondent to appoint another commissioner to conduct afresh an arbitration in terms of section 138 of the Act in order to determine the dispute between the applicant and the fourth respondent arising out of the fourth respondent ‘s dismissal by the applicant.   

 	3.	Directing that such Respondents as oppose the relief sought herein, be ordered to pay the costs of the application, jointly and severally, the one paying the others to be absolved.”

The fourth Respondent (“the employee”) was employed by the applicant as an underwriting clerk. On the 21 January 1997 the employee had an altercation with Mrs Steyn at the applicant’s place of work which led to the employee being charged with insubordination, personal threats to Mrs Cindy Steyn and absenteeism without permission. The disciplinary enquiry was held on 24 and 27 January 1997. The result of the enquiry were that the employee was found guilty of insubordination and making personal threats to Mrs Cindy Steyn. This decision was taken on a review (which is what would normally be regarded as an appeal in other organisations) on the 27 February 1997. The dismissal was confirmed on Appeal. Thereafter, the dispute was referred to the Commission for Conciliation Mediation and Arbitration (“CCMA”) by the Union. On 2nd April 1997 Conciliation was held and the matter could not be resolved. As a result,  the dipute  was referred to arbitration which was held on the 13 and the 17 June 1997 at the Commissioner’s Chambers before, Mr Pandya,  the commissioner. The outcome of the arbitration was that the commissioner found that “ the employee is reinstated to his job as from the date of his dismissal on 27 January 1997 on the same terms and conditions that existed at the time”. 

This award was delivered on the 26th of June 1997.  The applicant thereafter proceeded to lodge an application with the Labour Court to review the commissioner’s action in conducting the aforesaid arbitration hearing on the number of grounds as are set out hereinafter . The First and Second Respondents are not opposing the application. The Second Respondent filed and Explanatory affidavit and undertook to abide by the decision  of the court .The Third and Fourth Respondents opposed  the application.

In seeking the aforesaid order the applicant sought to rely upon the provisions section 145 (2) (a) (ii)being that the second respondent, Commissioner N.D. Pandya N.O.( hereinafter referred to as “the Commissioner”) committed a gross irregularity in the conduct of the proceedings in that :

a)	 he failed to allow proper cross-examination of the employee, that is, not allowing the applicant’s representative to put to the employee the contradictions between his evidence at the arbitration and his evidence at the disciplinary inquiry ;

b)	he failed to allow the applicant’s representative to address arguments on this contradictions; and
c)	he denied the applicant’s representative an opportunity to present closing argument.

The applicant’s Representative also sought to rely upon a number of factors which in his view showed the bias of the Commissioner in conducting the proceedings because of the manner in which he conducted same. In this regard Mr Neal Pieters, the applicant’s Representative at the arbitration, in paragraph 9.2 of his affidavit stated :	 

“ From the outset of the proceedings the Arbitrator exhibited antagonism towards me and the Applicant. During the course of the proceedings, he berated and intimidated witnesses called on behalf of the Applicant, to such an extent that it affected their ability to give their version of events. During the evidence-in-chief of the very first of the Applicat’s witnesses the  Arbitrator challenged witness (Moon) with the assertion that “Managers of Mutual and Federal are incompetent.” The Arbitrator regularly interrupted my leading of the Applicant’s witnesses with extensive questioning of his own. He also interrupted  my cross-examination  of the employee ‘s witness, on occasions cutting me short by saying that “that is a matter for argument.” He did not allow me to cross-examine the employee when he testified. The arbitration was the first one which I had conducted. I have no legal training, and was both intimidated and put off by the Arbitrator’s conduct, which affected my ability to properly conduct the case.  Once evidence had been concluded, the Arbitrator asked whether the parties had any thing more to say.  I responded that apart from my closing argument, I had nothing further to say. The Arbitrator told me that he knew what I was going to say. He therefore disallowed any closing argument, despite his contention during cross-examination that matters  raised by me were matters for argument.”                                 	     
The supervisory power of the Labour Court in terms of which it  reviews proceedings, decisions and awards of the CCMA Commissioners, are derive from Section 145 and  Section 158 (1) (g) of the Labour Relations Act  No 66 of 1995 (“the act “) .
Sec 145 (1) states that “any party to a dispute who alleges a defect in any arbitration proceedings under the auspices  of the Commission may apply to the Labour Court for an order setting aside the arbitration  award. The Section also set out the time limits for the application for review. Section 145 (2) gives limited grounds of review. Sec 145 (2) states that a defect referred to in subsection (1), means:
“(a) that the Commissioner -
(I) committed misconduct in relation to the duties of the commissioner as an arbitrator;
(ii)	committed gross irregularity in the conduct of the arbitration proceedings; or
(iii)	exceeded commissioner’s powers; or
(b)	that an award has been improperly obtained.”  	  

Section 158 (1) (g) which gives the Applicants wider powers stipulates that
“(1)	The Labour Court may: 
(g)	Despite Section 145, review the performance or purported performance of any function provided for in this Act or any Act or omission of any person or body in terms of this Act on any grounds that are permissible in law.” 
Section 145 has the same grounds as those contained in Section 33 of the Arbitration Act Act 45 of 1965.  The provisions contained in Section 158 (1) (g) are fairly wide and allows reviews even on other grounds as long as they are recognised in common law.
                         
GROSS IRREGULARITY

The provisions of  section 145 of the Act, as advised earlier, are  similar to the provisions  of Section 33 of  the Arbitration  Act42 of 1965. The provision of the Arbitration Act have been the subject matter of a number of decided cases. The courts have held that certain actions, by an arbitrator or a chairman of a tribunal or other judicial officers amount to gross irregularity. In reaching that conclusion the courts have held that it is the conduct of the proceedings and not necessarily the result thereof which is reviewable. Thus the review proceedings do not look at the ultimate outcome of the arbitration, but will in this regard look at the conduct of the commissioner who was presiding over the arbitration. See Ellis v Morgan; Ellis v Desai 1909 TS 576 at 581, Goldfields Investment Limited and Another v City Council Johannesburg and Another 1938 TPD 551, R v Zackey 1945 AD 505 at 509 and Ventersdorp Town Council v President Industrial Court and Others (1992) 13 ILJ 1465 (LAC) at 1476 .

In the Goldfields Investments LTD matter (supra) at 560 Schreiner J said:

“It seems to me that gross irregularities fall broadly into two classes, those that take place openly, as part of conduct of trial -they might be called patent irregularities -and those that take place inside the mind of judicial officer, which are only ascertainable from the reasons given by him and which might be called latent. Of course, even the first class are only material inamuch as they prevent, or are deemed to prevent, the magistrate’s mind of being properly prepared for the giving of the correct decision. But unlike the second they admit of objective treatment, according to the nature of the conduct. Neither in the case of latent nor in the case of patent irregularities need there may be any intentional  arbitrariness of conduct or any conscious denial of justice. The law, as stated in Ellis v Morgan (supra) has been accepted in subsequent cases, and the passage which has been quoted from  that case shows  that it is not merely high- handed or arbitrary conduct which is described as a gross irregularity; behaviour which is perfect well-intentioned and bona fide, though mistaken, may come under that description. The crucial question is whether it prevented a fair trial of issues. If it did prevent a fair trial of issues then it will amount to a gross irregularity. Many patent irregularities have this defect. And if from the magistrate’s reasons it appears that his mind was not in state to enable him to try the case fairly this will amount to a latent gross irregularity.”                                   

This passage was also referred and quoted with approval by the Labour Appeal Court in the Ventersdorp Town Council v President of the Industrial Court matter (supra)	
The applicant’s representative, Mr Pieters, stated  that  when the employee was leading evidence at the enquiry he tried to draw attention  of the Commissioner  to the fact that the answers furnished by the employee in response to the questions posed by him were materially in conflict with the evidence of the employee at the disciplinary enquiry. In response, the commissioner advised him that this was a matter for argument and did not allow him to persue the point.  As a result he  did not have an opportunity to put the contradictory versions to the employee. In his submission the Applicants Counsel submitted  this was a gross irregularity.

In response to this allegation the  union Representative denied that this happened. However   the commissioner does not deny this allegation. In his affidavit the Commissioner stated that “it is  possible that Peters (sic)  was told on  occasions that the matter he was raising  was a matter for argument”.  

Where a witness has made a previous statement which tends to be inconsistent with a statement which is made at a hearing, the best known method  of impeaching his credibility  is to draw the witness’s attention to the statement which he made previously and provide him with an opportunity to give an explanation. This would enable counsel  and the court to establish whether the witness is telling the truth or not.  In circumstances, the failure or refusal by the Commissioner to give the representative an opportunity  to put the different or contradictory versions to the other side’s witness should be regarded as a gross irregularity. On the balance of probabilities I do believe that this incident did happen based on the applicants version and the Commissioner’s response thereto.       

Mr Pieters also stated that later, at the time when had finished the leading of  evidence, the commissioner,  enquired from both representative if they had anything more to add. The Union Representative  replied that he had nothing to say.  However Mr Pieters  stated that apart from his closing argument, he had nothing further to say.  In response to this the Commissioner  told him that he knew what he was going to say and  then did not permit him to make a closing statement. The Union denied that Mr Pieters was not allowed to make a closing statement. In their denial they only stated that Mr Pieters replied by saying “No”.  However they did not deal with the second statement which was allegedly made by Mr Pieters and the Commissioner’s  response that he knew what Mr Pieters was going to say in their affidavit. The alleged offensive statement which was made by the Commissioner   Mr Pieters was not denied by the Union. In argument when he was making his submission the Union  representative  was asked about this particular statement which was made by the Company representative (Mr Pieters) and the Commissioner’s comments in response thereto. He did not say anything except to submit that he had not taken instructions in this regard and thus could not take the matter further.   
In his affidavit, the commissioner does not deal with this particular statement. I am cognisant and alive to the fact that in his explanatory affidavit, the commissioner did expressly state that  he did not intend covering each and every point raised in the application and that failure to respond to an allegation should not necessarily be construed as an admission of it. However, even though there was no express admission by the commissioner, it is such an important allegation  of gross irregularity that  I would have expected the commissioner who is Senior Officer of this Court to take Court in his confidence to address same .  It is apparent from his affidavit that the commissioner moved from addressing the paragraph dealing with his alleged failure to give the representative an opportunity to cross examine the employee and to address the court (paragraph 10.13)  to the paragraph dealing with what happened when he gave  the parties the opportunity to discuss the matter further to see whether it can not be settled. (Paragraph 10.18 to 10.20). Once again I am of the opinion that this statement was made by the Commissioner. See Stellenbosch Farmers Winery LTD v Stellenvale Winery (PTY) LTD 1957 (4) S.A 234 (C) at 235 E-G and Plascon - Evans Paints v Van Riebeeck Paints 1984 (3) 623 (AD) at 634-5

In the circumstances, the commissioner did not give the parties the opportunity to present closing arguments. This is notwithstanding the fact that earlier on when Mr Pieters sought to challenge the evidence of the employee, the commissioner had stated that he will have the opportunity during argument. In the circumstances he did know that Mr Pieters had a number of issues which he would have liked to raise in his closing argument. He had also indicated to him that he would give him an opportunity to address those issues in closing argument. In the circumstance, he was more than obliged to give Mr Pieters an opportunity to deliver  his closing address. Moreover as he had  raised  an expectation.  In  my view, the failure by the Commissioner to give Mr Pieters the opportunity to present a closing address was a gross irregularity which on its own should lead to the setting aside of the Award.
It is a basic principle of our law that every party should be given an opportunity of addressing the court ( in this case the Tribunal). This could be done either through legal  Representative or could in certain circumstances be done by the litigant himself if he so wishes. In some instances the court may accept written arguments instead of verbal argument. However the verbal argument is preferred to the written one . In Transvaal Industrial Foods v B .M.M Process Limited 1973 (1) SA page 627 (AD)at 628 G  Trollip J.A. stated that:

“neither the court nor the litigants should normally be deprived of the benefit of oral argument in which counsel can fully indulge their forensic ability and persuasive skill in the interest of justice and their clients.”

 The Judge went on to say that the trial court should only accept written  arguments in special circumstances and only after discussion with Counsel. In the circumstances, the importance of oral arguments at the end of the trial   cannot be of over-emphasised.       
In R v Kaleni 1959 (4) S.A 540 (E) at 546 C-D De Villiers J P said:
“It is clear that a failure to afford a party or his legal representative an opportunity to address the court at the conclusion of a trial constitutes a gross irregularity, whether this failure was due to a deliberate refusal, or merely to an oversight. If such an irregularity is calculated to course the result prejudice and the court is not satisfied that prejudice in fact did not result it is bound to set the proceedings aside.”
I was also referred by the applicant’s Representative to Rose-Innes, Judicial Review of Administrative Tribunals in South Africa p172 who confirms the same  legal position.         

It is apparent from the facts of this matter that at all times, Mr Pieters wanted to address the arbitrator on the discrepancies.  In the circumstances, on a balance of probabilities, he would not have abandoned his right to deliver his argument to the tribunal. This opportunity was denied to Mr Pieters by the  commissioner . This action by the commissioner, is reviewable action as it did cause prejudice to the Applicant.  See also: O’Connel v The Attorney-General and Magistrate, Pretoria 1930 TPD 9;  R v Parmanand 1954 (3) SA 833(A); R v Kaleni 1959(4) SA 540 E at 546 ; District Commandant, South African Police & Another v Murray 1924 AD 13 

“The Commissioner’s  actions as aforesaid could  also be set aside  on the basis that the said actions  interfered with Applicant’s legitimate or reasonable expectation.
In the case Rustenburg Platinum Mines Limited v CCMA and 2 Others case no J467/97  (Unreported ) Gon A.J.  at page 23 of the said judgement  after referring to the case of Claude Neon LTD v Gemiston Council and Another 1995 (3) SA 710 held that:
  “I agree with the Applicant’s submission  that the Second Respondent failed to accord the parties the hearing that was procedurally fair and that the Second Respondent afforded the parties  an opportunity  to make further representations and then apparently on a whim withdrew such opportunity. Such action on the part of the Second Respondent is unreasonable, and not procedurally fair. I will even go further to say that it was grossly irregular.
On these basis alone I find a cause to set aside the entire decision of the Second Respondent and refer it back to the First Respondent and another Commissioner other  than the Second Respondent to here the matter”.                    

Similarity in this case Mr Pieters advised the Commissioner that he had, at least, an  issue that he wanted to raise on argument but was not given an opportunity by the commissioner after raising an expectation. Accordingly, this was an irregularity on the basis of which the decision of the Commissioner should be set aside. It was apparent that at the end of the arbitration Mr Pieters was of the view that he had not been given an opportunity to present the Applicant’s case before this particular commissioner properly and fairly.     
           
 SUPICION OR PERCEPTION OF BIAS

The applicant’s Representative and other company witnesses also raised a number of concerns which made them believe that the Commissioner was biased in favour of the employee. The company witnesses relied upon the  following incidents which occurred or statements which were made by the Commissioner for them to come to that conclusion.
a)	During the evidence in chief of the witness Mr William Moon, he challenged the witness with an assertion that the “ Managers of Mutual and Federal Insurance Company are incompetent”;
b)	After the witness Moon had been excused after leading his evidence made comments that with his many years of experience, he already knew what the case was all about, and informed them that the failure by the company to allow the cross-examination of the witness who led evidence in aggravation during the hearing  constituted an irregularity which could be very costly to the Applicant.
c)	The arbitrator regularly interrupted the leading of witnesses and something took over the leading of witnesses e.g. Moon and Employee; 
d)	The shouting at the company witness, Ms Esther Botteril by the Commissioner for giggling  whilst leading evidence which nearly brought her to tears.
e)	The cross- examining of the witness in an aggressive manner by the commissioner. 

f) 	The leading of the employee’s evidence by the commissioner in stead of him being led by his representative.

The Commissioner’s general response to these allegations was that  “ Where the proceedings of an arbitration are not formally  mechanically  recorded, it is one of the simplest assertions of an aggrieved part to aver that the “ Arbitrator exhibited antagonism towards it, and berated and intimidated its witness to the extent that it affected their ability to give their version of events.” Whether this was so in this case can be gathered from what evidence the witnesses gave at the disciplinary hearing and at the arbitration. A comparisim of the two reveal that everything that witnesses said at the disciplinary hearing was put before me and more. ”
The Commissioner also dealt with the individual allegations. In respect of the first allegation of having said the Applicants Manager are incompetent the Commissioner  stated he did not recall having said it as it was put and he was being quoted out of context. He had said it in response to Moon’s evidence that he had sat in the disciplinary hearing to advise the presiding officers. When asked why it was necessary  for him to do that, he said that they did not always know the proper procedure. He said that  “It was in this context that they had not been Au  fait with the procedure and it was put to the witness that implied that they were incompetent.”

Mr Pieters stated he believed that this remark was inappropriate and unwarranted. The Applicant’s Counsel in his submission stated that this was a comment which should not be made by a judicial officer, even if it was in the context alleged by the Commissioner as it does cause the litigants to be unsettled as it happened in this case.

Mr Moon stated that at the time the Commissioner made this statement he had not even read the transcript of the disciplinary proceedings, yet he described them as incompetent. This comment together with the manner he was treated during the hearing,  according to Mr Moon, led him to believe that the Applicant would not be afforded a fair hearing by the Commissioner. The Union, on the other hand, was of the view that Mr Moon’s evidence called for these comments from the Commissioner. The Union  also went on to question the role Mr Moon  was playing during the hearing. In their evidence they contended that it was not an advisory role as alleged, but a participatory role.   

In respect of the second allegation that he stated that he knew what the case was about and made comments indicating that he was of the of the view that the Applicant’s actions were unfair, the Commissioner had this to say: 
“Settlements of disputes between the parties themselves is always encouraged by CCMA. As hearing proceeds, it often happens that issues crystallise and the parties are encouraged to talk to each other. Very often the law is summarised for the parties and their options pointed out to them. I do not recall exactly what happened in this matter but it is possible that various options were pointed out to the parties.”           
The Union’s response was to admit the Applicant’s evidence in this regard but went on to state that the Commissioner’s remarks were in accordance with the requirements of the Act, particularly Sec 138 (2) and Item 4 of Schedule 8 to the Act. The Union also stated that Pieters’s submissions in this regard are frivolous and unfounded.

The Applicant’s Counsel submitted, and rightly so, that a Commissioner does not need to be  biased but it is the  conduct of the Commissioner which goes towards creating a suspicion and perception of bias which might be entertained by a lay litigant, which should be reviewed by this court. In this regard he referred me to BTR Industries S.A. (Pty) Ltd v Mawu & Others (1992) 131 L J 803 In this matter Hoexter J A also set out the test to be applied in assessing whether the Industrial Court could be said to have been biased. At page 817 C-D he also said:
“For present purposes there may be adopted the definition of “bias” stated in the House of Lords by Lord Thankerton in Franklin v Minister of Town & Country Planning 1948 AC 84 (HL) at 103. It was there stated that the proper significance of the word ... “is to denote the departure from the standard of even- handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding  a quasi- judicial office”.                        

 At 822 B-C Hoexter JA also said :
“Provided the suspicion of partiality is one which might reasonably be entertained  by a lay litigant a reviewing court cannot, so I consider, be called upon to measure in a nice balance the precise extent of the apparent risk. If suspicion is reasonably apprehended then that is the end to the matter. I find myself in complete agreement in what was forcibly stated by Edmund Davies L. in the Metropolitan Property case at 314 C-D:
‘With profound respect to those who are propounded the “real likelihood” test, I take the view that the requirement that justice must manifestly be done operates undimished force in case where bias is alleged, and that any development which appears to emasculate that requirement should be strongly resisted.”

If I consider these two comments by the Commissioner, which I do believe were unwarranted in whatever context they were made, I am disposed to agreeing that a lay litigant in the position of the Applicant and its witnesses was likely to form an impression  that the Commissioner was partial to the employees case. Both comments were made during and only after the very first witness had led his evidence.The employee and Mrs Steyn,  the aggrieved employee, had not even led their evidence regarding the incident which had been the subject matter of the inquiry. At the time it could not have been said that the Commissioner had an objective evaluation and analysis of the evidence to reach the conclusion he had reached about the Applicant’s case.

Section 138 (1) to (3) of the Act provides : 
“(1)	The Commissioner may conduct the arbitration in a manner that the Commissioner considers the appropriate in order to determine the dispute fairly and quick, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
(2)	Subject to the discretion of the Commissioner as to the appropriate form of the proceedings, call witnesses of any other party, and address concluding arguments to the Commissioner.
(3)	If all parties consent, the Commissioner may suspend the arbitration proceedings and attempt to resolve the dispute through conciliation.”       

Section 138 (3) is clear that any attempt by a Commissioner at conciliating a dispute during the arbitration hearing should be done with the consent of all the parties. The Section does anticipate the suspension of the arbitration hearing to enable a Commissioner to attempt to conciliate the dispute. In this case none of the above was done by the Commissioner when he raised his concerns about the Applicant’s case. Even then the manner and the time when these concerns were raised could only lead to the Applicant’s representative believing that the matter had been pre - judged or the Commissioner was biased against them.

In dealing with the rest of the concerns  raised by the Applicant which led its Representative  to believe that the Commissioner was biased , I would first like to refer to Section 138 (1) and 138 (2) of the Act. These two Sub-sections do give a Commissioner  greater powers of effectively dealing with “the substantial merits of the dispute with the minimum of legal formalities.” This has been interpreted to be directing the Commissioner to investigate the dispute and not merely act as an umpire. See Du Toit, Wolfrey et el : The Labour Relations Act of 1995 p 310.

I do agree with the Commissioner that he has to play an inquisitorial role in the arbitration proceedings held in terms of  the Act. However I do not believe that the intention of the legislature was to abandon  the well established rules of Natural Justice. As the Inquisitorial System is not the usual  practice in our courts or tribunals  it even calls for more vigilance on the part of the Commissioner, when he starts investigating the matter as it might easily lead to a perception or apprehension of bias especially with lay litigants.

Turning to the third Complaint by the Applicant regarding the interruption of witnesses’s evidence , I am in agreement with the views of the Commissioner in this regard. The Act does expect him to take an active role subject to the Commissioner not abandoning his role of ensuring that justice is done or is seen to be done at the end of the day. Occasionally this role may be regarded as interference with the Cross Examination of witnesses. This, obviously may not be taken too kindly by a practitioner if he  is trying to lead his witness.  Notwithstanding this concern   I do not regard this interference as having been grossly irregular in any manner as there was no evidence to indicate that it was not in accordance  with the normal practice of asking questions to obtain clarity. Our courts have held that the role of a trial Judge in civil Proceedings is not that of a “ silent Umpire” and it is the nature of the trial Judges intervention and not the frequency thereof which is of significance. See Greenfield Manufacturers v Royton Electrical Engineering 1976 (2) S.A  565 A at 570 E-F. The same view can be held with regard to the role of a Commissioner.    

The comments set out above in respect of Section 138 dealing with the role of the Commissioner in respect of hearings would apply with  regard to the Complaints which were raised by the Applicant regarding the alleged aggressive Cross - Examination of witnesses and leading of witnesses by the Commissioner. The Union Representative in his argument also submitted that the Commissioner normally speaks with a voice of authority and in his view, he was not intimidating the witnesses. The Commissioner also stated that Mr Pieters was asking leading and irrelevant questions sometimes which necessitated his  intervention. I do accept the Union’s submissions and the Commissioner’s evidence in this regard. Unless a Commissioner stamps his authority in a hearing it might become difficult for him to control the hearing later. In any event he is supposed to be in control of its destiny in terms of Sec 138 (1) and (2).        

Whilst the Commissioner might be doing what is expected of him in terms of Section 138 it is important that he should be conscious of our common law regarding entering an arena. In the case of Solomon & Another N.N.O. v De Waal 1972 (1) S.A. 575 (A)  Potgieter J A, dealt with the intervention by a judge and the descending by the judge into the arena of conflict between the parties. Potgieter J.A . Held at 580 E-H that: 

“A perusal of the record reveals that the learned trial Judge often and, unfortunately, quite unwarrantedly, intervened in the proceedings while defendants’ counsel was cross examining plaintiff’s witness and during the hearing of defendant’s case. It is unnecessary to quote the numerous passages in question. Suffice it to say that during the hearing of the plaintiff’s case the leaned Judge asked certain questions and made certain observations which reflected favourably upon plaintiff’s case and adversely upon the evidence that the defendant’s counsel asserted would be adduced for  the defendants. Further  more during the hearing of the defendant’s case the learned Judge examined their  witnesses in  such a manner  and made observations in the course thereof of such a nature as to evince his ostensible disbelief, or at any rate, his doubt about their credibility. Those  and other intervention by the learned Judge must have been most harassing for the defendant’s counsel, but fortunately he did not allow the actual presentation of defendant’s case to suffer thereby. However, by descending into arena of the conflict of the parties in that manner the learned Judge might well have disabled himself from assessing with ;due impartiality the credibility of the witnesses, the probabilities relating to the issues, and the amount of the damage sustained by the plaintiff. Even if it were not so, such intervention might well have created the impression, at least in the mind of the defendants, that he had also disabled himself and that he was favouring or promoting the plaintiff’s cause and prejudging the case against the defendant. In that regard it must be born in mind that justice should not only be done but should manifestly and undoubtedly be seen to be done.”   

See also the dictum of Trollip A.J.A in S v Rall 1982 (1) S.A 828 (A) at 831-832 which was also referred to by the Applicant’s Counsel in his argument.                                      
Disciplinary inquiries and Arbitrations relating to unfair dismissal are very serious hearings. In these matters the dismissed employee is usually facing the ultimate sentence  for transgressions in the work place, namely, a dismissal. In the circumstances for a witness to be giggling during the hearing is so insensitive and inappropriate that there is every reason for that  witness to be sanctioned. I do agree with the Commissioner’s actions when he reprimand Ms Botterill as she had to be reprimanded. Whether her actions were due to nervousness or not, it was inappropriate for her to be giggling in that hearing. Such action does amount to the Contempt of the Commission see Section 142 (8) (h) and (g). 

Mr Pieters also complained about the Commissioner disallowing him to cross-examine the employee and later withdraw that complaint. He also raised a complaint about the Commissioner receiving and talking on the telephone during the arbitration. I don’t believe that act is a misconduct and should be subject to a review by this court   

Based on my findings of the irregularities as set out above, I make an order that the entire decision of the Commissioner is set aside and the arbitration is referred back to the CCMA and another Commissioner, excluding the Second Respondent, should hear the matter de novo. The law requires me to consider law and fairness in awarding costs. I am of the view that this would be an appropriate case for not awarding costs against the Third and Fourth Respondents.    

The Application  succeeds no order as to costs.

JALI AJ

Date of Hearing: 6 November 1997
Date of Judgment: 19 November 1997    
For the Applicant:  Adv. A.I.S. Redding
Instructed by Rooth and Wessels.
For the Third and Fourth Respondents: Mr Freddy Matsaba of South African Commercial
        Catering and Allied Workers Union.