Thandeka Safaris (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J735/2020) [2020] ZALCJHB 152 (18 August 2020)

Key Facts

Issues

• Whether the introduction of a sound recording into evidence without a certified transcript breached the applicant's right to a fair hearing, as the arbitrator ruled it admissible despite the unavailability of the transcript.
• Whether the applicant's review application was filed within the prescribed 6-week time limit and accompanied by an application for condonation, as the annexures indicate service on 20 May 2020, which is outside the deadline.
• Whether it is just and equitable for the court to intervene in incomplete arbitration proceedings under section 158(1A) of the LRA, given the arbitrator's comprehensive 27-page ruling dismissing the recusal application and the policy against piecemeal reviews.

Holdings

• The court ruled that the third and fourth respondents are entitled to costs incurred in opposing the application under s 162 of the LRA, as there is no reason to deny them these costs.
• The court dismissed the application because the review request was filed outside the prescribed time limit without seeking condonation, and there is no valid review application before the court. The applicant's claim to review a 2019 ruling is also out of time with no condonation application.
• The court held that it cannot intervene in incomplete arbitration hearings unless it is just and equitable to do so. The ruling on the recusal application was comprehensive and does not justify intervention. The issue regarding the sound recording's admissibility can be addressed after the arbitration award is made.

Remedies

Legal Principles

• The court applied the principle of judicial review, emphasizing that intervention in incomplete arbitration proceedings is only permissible if it is 'just and equitable' under s 158 (1A) of the LRA. The applicant failed to demonstrate such justification, as the arbitrator's decision to dismiss the recusal application and admit the sound recording into evidence was not shown to be unreasonable or unjust.
• The court referenced s 162 of the LRA, which mandates that costs orders must align with legal requirements and fairness. The third and fourth respondents were awarded costs incurred in opposing the application, as the applicant's claims lacked merit.

Cited Statute

Judge Name

Passage Text

• [4] The applicant states that the review application was launched on 6 May 2020. The annexures to the review application indicate differently – all of the annexures submitted as proof of service record service by fax and email on 20 May 2020. Even if the application was served and filed on 6 May 2020, that is outside of the prescribed 6-week time limit. The application is not accompanied by an application for condonation. In these circumstances, there is no proper review application before the court (strictly, the court does not have jurisdiction to entertain it) and thus no pending review for the purposes of the present application.
• [6] Finally, insofar as costs are concerned, s 162 of the LRA requires the court to have regard to the requirements of the law and fairness in any consideration of an order for costs. There is no reason to deny the third and fourth respondent the costs that they have incurred in opposing these proceedings.
• [5] In any event, this court is not empowered to intervene in incomplete arbitration hearings unless the court is satisfied that it is just and equitable to review a decision or ruling before the issue in dispute has been finally determined. The insertion of s 158 (1A) into the LRA by way of the 2014 amendments sought to avoid the piecemeal review of arbitration proceedings in favour of a single review application to be brought at the conclusion of the hearing and after the delivery of an award.