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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case no: JR 427/20

 

 

In the matter between:

 

PLATINUM MILE RESOURCES (PTY) LTD               Applicant

 

and

 

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION                               First Respondent

 

DAVE SMITH N.O                                                       Second Respondent

 

AMCU obo M MAEGALA                                           Third Respondent

 

 

Heard:          9 February 2023

Delivered:    1 March 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 1 March 2023.

 

 

JUDGMENT

 

 

PRINSLOO, J

 

Introduction

 

[1]         The Applicant seeks to review and set aside an arbitration award dated 27 January 2020 and issued under case number NWRB 2369-19 wherein the Second Respondent (arbitrator) found that Mr Maegala’s dismissal was substantively unfair and he was reinstated retrospectively. The Third Respondent, AMCU (Respondent) acting on behalf of Mr Maegala opposed the application for review.

 

The evidence adduced

 

[2]         The Applicant operates as a mineral tailings retreatment facility and is situated in the Rustenburg area. Mr Maegala was employed by the Applicant on 1 December 2014. Mr Maegala was dismissed on 8 July 2019, after being found guilty of misconduct. At the time of his dismissal, Mr Maegala worked as a waste controller. The charges of misconduct levelled against Mr Maegala and for which he was dismissed, related to dishonesty. The issue to be decided by the arbitrator was whether his dismissal was substantively fair.

 

[3]         In order to assess the arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings.

 

The Applicant’s case

 

[4]         The Applicant’s first witness, Mr Botha, investigated the case of Mr Maegala and he acted as the initiator in the disciplinary proceedings. He testified that he commenced his investigation after a protection service member informed him that Mr Maegala was seen driving a company vehicle to a certain scrapyard.

 

[5]         Mr Botha explained that when scrap is sold for the first time at a scrap metal dealer, the person selling the scrap must be identified and his ID number and vehicle registration must be recorded. Every time thereafter, when scrap is sold, the seller will be recorded by his ID number and vehicle registration.

 

[6]         In his investigation, Mr Botha found that there were two scrapyards in Rustenburg, namely Rustenburg Metal Recyclers and Grabcycle, to which Mr Maegala went with a company vehicle. He referred to a list of transactions for Mr Maegala at Rustenburg Recyclers. He was able to link the transactions on the list to Mr Maegala because Mr Maegala’s initials, surname, identity number and cell phone numbers appeared on each of the transactions. The vehicle registration number recorded on the transactions is that of the Applicant. The printouts recorded the transaction in respect of date, time, transaction number, the product that was sold and the amount of money paid to Mr Maegala. The transaction dates were from 16 January 2018 until 14 December 2018. He also referred to printouts of transactions with Grabcycle, showing the same information as the printouts alluded to and the transaction dates were from 18 February 2018 until 10 April 2019.

 

[7]         After Mr Botha obtained the printouts of the transactions, he approached Mr Schoeman, who was a plant manager and he requested a reconciliation sheet of the items sold. A reconciliation sheet for 2018 indicated the date, the product that was sold, the invoice number, the mass, the rate, and the amount that was received and by whom it was received.

 

[8]         During his investigation, he found that on 22 August 2018, there were six transactions and steel to the value of R 1 044 and mixed steel to the value of R81 was sold at Grabcycle. For the transaction on 22 August 2018, Mr Maegala had permission to sell the scrap at the scrap dealer. However, the total amount that was received was R 1 512, but Mr Maegala only paid over R 1 216 to the Applicant.

 

[9]         The total value of the scrap that Mr Maegala had sold to the two scrap metal dealers, was R 27 000. Mr Botha confirmed that the items or products listed on the printouts were products found at the Applicant’s premises.

 

[10]     According to Mr Maegala’s supervisor, Mr de Jager, he was only allowed to remove waste and not scrap from the plant, yet in all the transactions reflected in the printouts, scrap was sold.

 

[11]     It is evident from the transcribed record that Mr Maegala’s representative did not pose many questions to Mr Botha and he did not contest his version in any respect. The only relevant question posed was whether the authorisation for Mr Maegala to go and sell the scrap was given in a written form or whether it was given orally. Mr Botha testified that the permission was given orally. The following then transpired:

 

‘Mr Simon:      Again Mr Christiaan, I need to check on how do you prove that the scrap Mr Maegala sold was not authorised to sell it if it is oral? And I need to check to say what confirms that Mr Maegala, the scrap that he is accused of, he was authorised or not authorised?

 

Mr Botha:        Commissioner, Mr Sakkie de Jager was his supervisor by then. He will come and testify that he only gave permission once on 22 August to sell scrap as there was a contractor scrap dealer that was dealing with the scrap.’

 

[12]     After this response, no further questions were posed in cross-examination.

 

[13]     The arbitrator asked questions in clarification and it is evident that the Applicant’s case was that Mr Maegala was only authorised once on 22 August 2018 to sell scrap metal on behalf of the Applicant and that all the other occasions were not authorised. Furthermore, on 22 August 2018, when Mr Maegala had permission, there was a shortfall in the money he had received for the scrap and the money he had handed over to the Applicant.

 

[14]     Mr de Jager testified that he is employed by the Applicant as an engineering foreman and that Mr Maegala reported to him. Mr Maegala was employed as a driver on the plant and his duties included collecting spares in town, if required, and to do laundry removal and waste material removal on site and to take it to the dumping sites. Mr Maegala had to collect and remove waste generated in the plant, for example, papers and plastic, which had to be moved to the dump sites.

 

[15]     Mr de Jager explained that Mr Maegala had no involvement in the removal, disposal or selling of scrap as that function was contracted to one Herman. The Applicant had a contractor, with a truck who removes the scrap steel.

[16]     On 22 August 2018, he specifically gave Mr Maegala an instruction to remove scrap, due to the fact that a VFL safety inspection was to be done the next day on the plant and the scrap had to be removed in preparation for that. The instruction was specifically to remove the scrap from the site in order to clear the site.

 

[17]     Mr de Jager explained that scrap is removed from the plant by way of instruction and that there will be a waybill, which is a security pass to declare what was loaded and it is signed off by management and the security, whereafter the go-ahead is given to remove it from the site.

 

[18]     Mr Maegala would normally remove the waste that was loaded onto the truck on a Saturday or Sunday.

 

[19]     In cross-examination, Mr de Jager was asked whether a waybill was generated for the scrap that Mr Maegala was instructed to remove from the site on 22 August 2018 and Mr de Jager responded that he could not recall. He confirmed that if scrap leaves the Applicant’s premises without a waybill, it was not in accordance with the procedure.

 

[20]     Mr de Jager conceded in cross-examination that he was not the only person who gave Mr Maegala instructions, as he was also given instructions by the previous manager or the safety manager, who would give him instructions to “go and collect or go and do something.” He also conceded that it would not always be reported to him whenever Mr Maegala was instructed by other managers to sell scrap.

 

The Respondent’s case

 

[21]     Mr Maegala testified that he had worked as a driver and his duties were to load laundry, go to town to buy diesel, clear the site and go to the scrapyard to sell scrap.

 

[22]     He testified that from 2018 to 2019 Messrs de Jager, Phillip de Bruyn and Martiens Smit gave him verbal instructions to sell scrap at the scrapyard and when he was given those verbal instructions, no waybills were issued. He would go to the scrapyard and upon his arrival, the weight of the truck would be established and the value of the scrap is determined by its weight. After that, he would be given money for the scrap, which he always handed over to Roelien de Jager.

 

[23]     It was further Mr Maegala’s version that, on the first occasion he arrived at the scrapyard, his personal details such as ID number, address and number plate were taken, but after that, once the truck goes for the weigh-in, the information that is generated for the transaction, is the information as it was recorded on the first occasion. It was a once-off registration, whereafter the information is not required again. He was not the only driver to load scrap and sell it to the scrapyard. During his absence, the truck would still transport scrap and sell it to the scrapyard, using different drivers, but the information will still reflect Mr Maegala’s information, as it was captured initially.

 

[24]     In cross-examination, Mr Maegala testified that there is scrap every day and he instructed at least once a month, when there is a shutdown, to remove the scrap.

 

[25]     In respect of the printout of transactions, Mr Maegala testified that not all the transactions captured on the list were done by him, but the information is reflected as his because that is how it was captured for the truck. Other drivers could have taken the truck and sold the scrap, but the information would still show that he was responsible for the transaction, when that was not necessarily the case.

 

[26]     In respect of the transaction of 22 August 2018, Mr Maegala testified that he could not recall whether he was given such an instruction on 22 August 2018, but insisted that every time he went to sell scrap, he took the money he had received for the scrap to Roelien.

 

[27]     It was put to Mr Maegala that the money he had received for the scrap sold on 22 August 2018 was not all handed over to the Applicant. Mr Maegala disputed this and insisted that he gave all the money to Roelien.

 

[28]     Mr Maegala provided another version namely that all the transactions reflected on the printout were transactions from his own company as he had his own company, he used his own vehicle and his own driver to collect and sell scrap, whilst he was working for the Applicant. It was pointed out to him that he had confirmed that all the transactions on the printouts referred to scrap taken from the Applicant, delivered with the Applicant’s truck, either by Mr Maegala or another driver, using the same company truck. It was put to him that those could not refer to his own driver and his business.

 

[29]     Mr Maegala said his sister’s son was his driver, who operated his own vehicle to sell scrap, but when he arrived at the scrapyard for selling the scrap, he would use Mr Maegala’s ID number, therefore it appeared as if it was his transactions with a company vehicle. It was put to Mr Maegala that he had already testified that the transactions on the printout were transactions he did or which were done by another driver, using the same truck and it could therefore not be his sister’s son. The two versions were contradicting and it is evident from the transcript that Mr Maegala was unable to provide an acceptable explanation for the contradicting versions.

 

Analysis of the arbitrator’s findings and the grounds for review

 

The test on review

 

[30]     I have to deal with the grounds for review within the context of the test that this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others[1] (Sidumo) as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

 

[31]     The Labour Appeal Court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[2] affirmed the test to be applied in review proceedings and held that:

 

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’

 

[32]     The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing Court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make.[3]

 

[33]     It is within the context of this test that this application for review is to be decided.

 

The arbitrator’s findings

 

[34]     In his analysis of the evidence, the arbitrator found that the Applicant had no control over what scrap left its premises, scrap was not weighed and no waybills were issued. Mr Maegala’s version, that he merely handed cash to Roelien, was not challenged and no receipts were issued and there was no correlation with documentation from the scrapyard at the time of the receipt.

 

[35]     The arbitrator found it surprising that Roelien was not called as a witness to explain the payment system, and neither was the author of the reconciliation to explain what it was based on. If there was no receipt for the monies paid in, it could be based on anything and it was impossible to know what was actually paid in on 22 August 2018. The transactions at Rustenburg Metal Recyclers spanned over a period from 16 August 2018 until 2 May 2019, there were 18 visits in 2018 and 27 in 2019, this while there was a contractor dedicated to removing scrap, yet Mr de Jager claimed to know only of the transaction that took place on 22 August 2018. According to the arbitrator, this “defies belief” and he found that no controls existed, anything could leave the premises and anything could be paid in. He went further to find that the “door was wide open for Maegala and, possibly, the de Jagers to exploit the (lack of a) system. Add to this that Maegala had his own scrap business and sold to the same scrapyards, using the same ID, is simply a recipe for disaster”.

 

[36]     The arbitrator found that the Applicant had failed to prove on a balance of probabilities that Maegala was guilty of the charge and consequently, his dismissal was substantively unfair. Mr Maegala was reinstated retrospectively.

 

The grounds for review

 

[37]     The Applicant raised a number of grounds for review and submitted that ultimately, the arbitrator made a decision a reasonable decision maker could not have reached. The gist of the review relates to the manner in which the arbitrator dealt with the evidence and more specifically how he disregarded evidence, the fact that Mr Maegala’s version was not put to the Applicant’s witnesses and the basis on which he accepted evidence.

 

[38]     The question this Court must ask on review is whether the way the arbitrator dealt with the evidence constituted an irregularity or error which was material, whether it impacted the determination of the question of whether Mr Maegala’s dismissal was substantively fair and whether it distorted the arbitrator’s ultimate decision.

 

[39]     In my view, there is merit in the Applicant’s grounds for review, for reasons I will deal with infra.

 

Evidence and cross-examination

 

[40]     The first ground for review is that the arbitrator failed to take into consideration that Mr Maegala’s version was not put to the Applicant’s witnesses.

 

[41]     After a witness has given his or her evidence in chief, the other party is given the opportunity to cross-examine the witness. The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.

 

[42]     A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him.

 

[43]     The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper.[4] Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence.[5] From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value.[6]

 

[44]     A failure to cross-examine a witness on any aspect is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for cross-examination.[7] A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness.

 

[45]     In Masilela v Leonard Dingler (Pty) Ltd,[8] the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that:

 

‘The problem that I have with the applicant's version where it differs from that of Masina is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit.

 

In Small v Smith  1954 (3) SA 434 (SWA) Claassen J said at 438:

 

“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.”’

 

[46]     In casu, it is evident from the transcript that in cross-examination Mr Maegala was questioned as to why Mr de Jager’s evidence was not challenged, especially his evidence that he instructed Mr Maegala only once to collect and sell scrap on 22 August 2018. Mr Maegala responded that it was not his turn to ask questions and it was put to him that he was acting through his representative at which point the arbitrator intervened and stopped the questioning abruptly by stating that “the point is made”.

 

[47]     It is further evident from the transcript that during argument, it was pointed out to the arbitrator that the evidence of the Applicant’s witnesses was not disputed and that Mr Maegala’s version was not put to them, upon which the arbitrator responded that “I am well aware of the necessity to put the version” whereafter the Applicant’s representative indicated that “[t]hank you very much. So I am not going to further [argue] on that”.

 

[48]     In his analysis of the evidence, the arbitrator did not consider the evidence of the Applicant’s witnesses at all, let alone that no version was put to them in cross-examination. This notwithstanding the fact that the arbitrator indicated that he was aware of the necessity for a version to be put to a witness.

 

[49]     The arbitrator found it “surprising” that Roelien de Jager and the author of the reconciliation were not called as witnesses. They had, according to the arbitrator, to explain the payment system and what the reconciliation was based upon. The Applicant’s version relating to the short payment made, as well as the information set out in the reconciliation report, was not disputed in cross-examination and thus no need arose to call witnesses to explain an issue that was undisputed. The arbitrator’s surprise is clearly misplaced and displays a lack of understanding of the general principles of the law of evidence.

 

[50]     The arbitrator misdirected himself when he ignored the fact that Mr Maegala’s version was not put to the Applicant’s witnesses and that they were effectively deprived of an opportunity to dispute or rebut his version.

 

Balance of probabilities

 

[51]     The Applicant’s second ground for review is that the arbitrator failed to make findings on probability and credibility, after evaluating all the evidence presented.

 

[52]     It is trite that an arbitration is a hearing de novo and that it calls for a fresh determination as to the fairness or otherwise of the employee’s dismissal, based on all the evidential material that is placed before the arbitrator.[9]

 

[53]     The approach to be adopted by arbitrators to decide the balance of probabilities in respect of disputing versions presented was set out in Sasol Mining (Pty) Ltd v Nqgeleni NO and others[10] (Sasol Mining), where the Court held that it was one of the prime functions of an arbitrator to ascertain the truth as to the conflicting versions before him:

 

‘What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis. Instead, he summarily rejected the evidence of each of the applicant’s witnesses on grounds that defy comprehension.’

 

[54]     The arbitrator had to follow the approach as set out by this Court and he had to conduct an assessment of the credibility of the factual witnesses, their reliability and overall assessment of the inherent probabilities of the irreconcilable versions before him.

 

[55]     The transcribed record shows that the Applicant presented evidence to support its case that Mr Maegala sold scrap, without permission, on dates other than 22 August 2018, when he was instructed and authorised to do so and that there was a shortfall in the monies he had received from the scrapyard and which he had paid over to the Applicant. The evidence so presented was significant and related to the central issue in the dispute the arbitrator had to adjudicate. The version was not disputed in cross-examination of the witnesses, but instead, issue was taken with the control of scrap at the Applicant’s premises. In his testimony, Mr Maegala not only presented a version that was not put to the Applicant’s witnesses, but it was also one that was contradicting the version he had presented in an earlier written statement.

 

[56]     Glaringly absent from the arbitration award is an assessment of the versions, of the credibility of the witnesses and the inherent probabilities of the versions presented. In fact, there is no consideration of any of the factors set out in Sasol Mining.

 

[57]     The arbitrator merely recorded that, on a balance of probabilities, the Applicant failed to prove that Mr Maegala was guilty of the charge. This finding of the arbitrator is astonishing given the arbitrator’s failure to consider the evidence holistically. There was evidence of the Applicant’s two witnesses, which was uncontested in material respects, yet there is no consideration of their testimony. How the arbitrator could make a finding on a balance of probabilities without any consideration of the probabilities, is shocking.

 

[58]     The arbitrator failed to take cognisance of the material evidence placed before him and he had failed to assess the totality of the evidence presented. It was incumbent upon him to make credibility findings and to state why he accepted one version and rejected another, which he dismally failed to do. The arbitrator had no sense of how to accomplish this task and he failed in his duties as arbitrator. There was no analysis in the arbitration award and evidently, the arbitrator was wholly incapable of analysing the evidence.

 

[59]     The essential ingredients of an assessment of the credibility of the witnesses and the inherent probability or improbability of the versions before him are not there in the arbitration award. The arbitrator did not undertake a full analysis of the evidence and the probabilities as they presented themselves during the arbitration proceedings and he did not consider the evidence in light of the probabilities, self-interest and credibility of the witnesses.

 

[60]     The arbitrator was required to make a factual adjudication on the issue of misconduct and he had to do that by considering and assessing all the facts placed before him. The arbitrator did none of that. Glaringly absent from the award is any consideration of the probability of the versions, considered against all the evidence presented.

 

[61]     The arbitrator’s analysis of the evidence presented is sketchy and bereft of any detail as to his reasoning and assessment of the facts and the evidence placed before him. In fact, the arbitrator’s analysis of the evidence is contained in four paragraphs, with no reference to the different versions presented. He provided no reason as to why he made a finding that “this defies belief” and it is evident that the arbitrator failed to consider the real issue before him.

 

Conclusion

 

[62]     I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before him.

 

[63]     The review test to be applied in casu is a stringent and conservative test of reasonableness. The Applicant has to show that the arbitrator arrived at an unreasonable result.

 

[64]     In Bestel v Astral Operations Ltd and others,[11] the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted.

 

[65]     I must ascertain whether the arbitrator considered the principal issue before him, evaluated the facts presented and came to a conclusion that is reasonable. I have considered this question after perusal of the transcribed record, the arbitration award and the grounds for review raised by the Applicant.

 

[66]     On a holistic consideration of the facts before the arbitrator, his finding that Mr Maegala’s dismissal was substantively unfair, is disconnected from the evidence and is not reasonable.

 

[67]     In summary: the arbitrator failed to consider the central dispute that served before him, he ignored relevant evidence, he failed to take into account the totality of the evidence, he failed to conduct a proper appraisal of the evidence, he rejected the Applicant’s version without any proper analysis and evaluation of the evidence, and he had no regard to evidence that was material and relevant. All of these constitute material misdirections.

 

[68]     The relevant authorities indicate that misdirections of this sort invariably have the consequence that an award will be unreasonable in its result. Whether the award stands to be set aside is a second-stage enquiry which requires an assessment of the reasonableness of the outcome. A review court may intervene if and only if the outcome or result of the proceedings under review represents a decision to which no reasonable decision maker could come on the available evidence. What this requires is for the review court to determine whether on the evidence, and regardless of any reviewable irregularity committed by the arbitrator, the result should nevertheless be sustained because it represents a reasonable outcome.[12]

 

[69]     For the reasons already alluded to supra, I am not persuaded that the outcome of the proceedings under review can be sustained. It is unreasonable and does not pass the test as set out in Sidumo.

 

[70]     It follows that the arbitration award is to be interfered with on review.

 

Relief

 

[71]     This leaves the issue of relief.

 

[72]     The Applicant seeks for the arbitration award to be reviewed and set aside and to be substituted with a finding that Mr Maegala’s dismissal was substantively fair. In the alternative, the Applicant seeks an order remitting the matter for a hearing de novo.

 

[73]     In the event that an arbitration award is set aside on review, this Court has a discretion whether or not to finally determine the matter.

 

[74]     In casu, the arbitrator failed to consider the evidence holistically and he did not determine the real dispute. This ultimately distorted the outcome of the arbitration proceedings. I am not inclined to substitute the award where principal and material issues were not properly determined and where the evidence was not considered at all.

 

[75]     In my view, the most appropriate remedy available is to remit the dispute to the First Respondent for a hearing de novo as it would be in the interest of the parties and of justice to have the matter properly ventilated and decided.

 

Costs

 

[76]     This Court has a wide discretion in respect of costs.

 

[77]     This is a matter where ultimately the arbitrator got it wrong. The Respondent was entitled to defend an award issued in its favour by opposing the application and should not be punished for doing so. In my view, the interest of justice will be best served by making no order as to cost.

 

[78]     In the premises, I make the following order:

 

 

Order

 

1.          The arbitration award dated 27 January 2020 and issued under case number NWRB2369-19 is reviewed and set aside;

 

2.          The dispute is remitted to the First Respondent for a hearing de novo before an arbitrator other than the Second Respondent;

 

3.          There is no order as to costs.

 

 

Connie Prinsloo

Judge of the Labour Court of South Africa

 

 

Appearances:

For the Applicant:                        Mr A Matthee from Cranko Karp Attorneys

For the Third Respondent:          Advocate L Hollander

Instructed by:                              LDA Inc Attorneys

 

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