TODAY'S ALERTS

Facts and issue: Application to review and set aside an arbitration award. During Ms Masilela's shift, she administered medicine to Mr Basson via the wrong line. The hospital claims damages from V & A for the financial losses it alleges to have led as a result. The claim was referred to arbitration. The arbitrator gave an award in favour of the hospital. V & A relies exclusively on section 33(1)(b) of the Arbitration Act 42 of 1965 in support of the relief it seeks. The section provides for the review and setting aside of an award if an arbitration tribunal has exceeded its powers or committed any gross irregularity in the conduct of the arbitration proceedings.

Discussion: V & A’s first argument is that the arbitrator exceeded her powers by interrupting its counsel’s cross-examination. Even accepting that this review ground goes to anything other than substantive jurisdiction doesn’t assist V & A. The arbitrator was empowered to make findings of fact. She had to be able to understand witnesses’ answers to questions and know that the answers witnesses gave were in reply to questions they understood. The remaining nine arguments seek to convince the court that the arbitrator committed a gross irregularity in her conduct of the arbitration proceedings. Any argument based on this ground must have as its primary focus the methods or conduct of the arbitrator in her conduct of the proceedings they agreed upon. V & A’s second argument is that an irregularity occurred in the conduct of proceedings because the arbitrator was biased.

Findings: The assertion of bias has no merit and never had any prospects of success. While V & A’s founding affidavit is by no means clear on the point, the impression one is left with, is that the arbitrator eventually agreed with counsel for V & A that he is not to be interrupted during his cross-examination. This happened in the presence of the hospital’s legal representative. The arbitrator’s only “failure” was therefore not to directly reprimand the legal representative of the hospital. Even if the applicant’s failure to place any reliance on section 13 of the Act is overlooked, no good cause has been shown for the removal of the arbitrator.

Order: The application is dismissed with costs.

Facts and issue: Appeal against both conviction and sentence imposed by the Regional Court magistrate. The appellant submitted that there were several irregularities in the proceedings which make it difficult for both the conviction and the sentence to stand. He submitted that those were the different names of assessors on record and failure of the regional court magistrate to have the assessors take an oath before the commencement of trial, despite the appellant’s insistence that he elected to have two assessors, after one of the assessors was recused from the proceedings.

Discussion: During the proceedings and when the appellant was under cross examination, one of the assessors recused herself. The appellant insisted on having two assessors and did not consent to the court proceeding with one assessor. The Regional Court magistrate decided that the trial would continue with one assessor, and it did. The appellant submitted that two assessors were not sworn in. He submitted that it is accepted that the assessors do not get sworn in court as they are not witnesses. The administering of an oath is peremptory. A failure to administer an oath as provided, constitutes an irregularity that is not capable of being remedied. The state called the first witness Athenkosi August, an eyewitness. The witness was not sworn in nor caused to make an affirmation. Mr Methuso criticized the transcriber that she did not state what explanation was given to the witness. Whenever other witnesses were sworn in, the transcriber recorded that in no uncertain terms. In relation to this witness, she stated clearly that the witness was not sworn in and there was no affirmation.

Findings: Such an omission constitutes an irregularity because the regional court magistrate considered the testimony of that witness and weighed it together with all the other evidence. The court committed an irregularity by proceeding with one assessor despite an objection by the appellant. The irregularities and misdirection’s are sufficient to warrant interference by this court with the convictions and sentences. The irregularities are fatal, and the only result would be to squash the proceedings. There is no reason to consider the merits.

Order: The appeal is upheld. The conviction and sentence of the appellant are set aside. The conviction and sentence of Mr Sandile Dyani are set aside.

Facts and issue: The applicant, Mr Buttner, and the respondent, Ms van Wyk, were, respectively, the lessor and lessee of a property, when their lease agreement came to an end at the instance of Mr Buttner (lessor). As a result of the landlord’s termination of the lease, Ms Van Wyk was contractually obliged to vacate the property. She has however refused to do so. Mr Buttner has accordingly been required to approach the court for an order directing Ms Van Wyk and any persons occupying under her to vacate the property.

Discussion: Ms Van Wyk has not suggested that she has any entitlement to continue to occupy the property. Nor could she have made any such assertion. Mr Buttner was lawfully entitled to terminate their agreement of lease. Ms Van Wyk has however contended that it would nevertheless not be “just and equitable” to evict her and her 11-year-old son from the property, and that the court should therefore, in the exercise of its discretion under section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, refuse to grant such an order at the instance of Mr Buttner. Ms Van Wyk has not indicated how many siblings she has, or where they live, or what their financial status is. Nor is it correct that she is “elderly” as her own affidavit stated, she is currently 47 years old, and was 46 when the application was brought. Her vague statements regarding her medical condition are also unsubstantiated and entirely uncorroborated.

Findings: Ms Van Wyk has given no indication that she will pay anything for the property, let alone discharge her overdue indebtedness, which is by now considerable, and she has at no stage even evinced a willingness to discuss a payment plan with Mr Buttner. Balancing the rights and interests of the property owner against the rights and interests of the unlawful occupier, there is no doubt that it would be just and equitable to order that Ms Van Wyk and her son vacate the property, and in the alternative, that they be evicted. A just and equitable date for Ms Van Wyk and her minor son to vacate the property would be as soon as reasonably possible after the end of the current school year.

Order: The first respondent and all other persons occupying the property through the first respondent are evicted from the property. The occupiers must vacate the property on or before Tuesday, 17 December 2024.

Facts and issue: The applicant approached the court seeking an order to review and set aside an arbitration award issued by the arbitrator. In this arbitration award, the arbitrator ruled that the dismissal was substantively unfair and ordered reinstatement. Both individual employees were employed by the applicant until they were dismissed following guilty findings on the allegations that they committed the offences of breach of contracts, acting in an insubordinate manner and breach of the obligation to act in good faith amounting to a breach of trust.

Discussion: The parties agreed that the mutual agreement relating to overtime was entered. The arbitrator did not take into account the pre-arbitration minutes and misapplied the law that he decided to follow and interpret, because the provision of section 10(1) read with (5) of the Basic Conditions of Employment Act 75 of 1997, applies only to an agreement concluded by both an employee and an employer, and calculating its lapsing provision starts from commences employment or during the first three months of employment. Sequentially, this prevented the applicant from having a fair trial of issues which resulted in the unreasonable finding that the arbitrator reached. As the arbitrator relied on this point alone, the interpretation of section 10 of the BCEA in concluding that the dismissal was substantively unfair makes the arbitration award reviewable.

Findings: The arbitrator misunderstood the nature of the dispute and did not deal with the substantial merits of the dispute because further charges are not being discussed in the arbitration award. It is not clear before the court whether the arbitrator explained to the parties, as the officials represented them, the consequences of failure to put versions to each other. The arbitration records show that more still needs to be done, so if the court were to substitute the arbitration award, it might prejudice either of the parties, which would be a miscarriage of justice. The only option is to remit the matter to the CCMA for a de novo hearing.

Order: The arbitration award is reviewed and set aside. The dismissal dispute is remitted to the CCMA for a hearing de novo before any commissioner other than the second respondent.

Facts and issue: These are urgent restraint proceedings for a final order to interdict and restrain Brent Bell from breaching the restraint of trade agreement. The respondents take issue with the fact that the applicants, or at least PABX, did not disclose the letter dated 20 April 2024, which demonstrates that they were aware of the alleged breach or threat to their interest as early as 20 April 2024 when the Hutcheon Attorneys wrote the letter or on 18 April 2024 when the attorneys for PABX printed the CIPC report which showed that Bell was a director of Sync. They contend that it took the applicants approximately three months from the date they became aware of the alleged breach until they launched the application.

Discussion: The facts show that PABX, which is the main complainant, was aware of the alleged breach as early as 20, if not 18 April 2024, did nothing until 4 July 2024 when it authorised the institution of the proceedings and only served the application on 15 July 2024. The applicants have provided no explanation whatsoever as to why the application could not have been launched shortly after the letter of 20 April 2024. The applicants face another challenge. The restraint agreement has a provision that expressly quantifies the damages if Bell breaches the agreement. That damage is R5,000 per month. In essence, the parties have agreed that if Bell breaches the restraint agreement, Mia Telecomms would be entitled to R5,000 damages per month. Mia Telecomms has provided no explanation for not enforcing this agreement nor is there any explanation why this provision would not provide the applicants with substantial redress in due course.

Findings: The provision does provide a remedy. It was therefore Mia Telecomms’ duty to show why this alternative remedy in due course is not or will not be satisfactory. It is insufficient to merely allege that with each passing day, the applicants are prejudiced without substance and without showing why other alternatives would not be satisfactory. The court is not persuaded that the matter is urgent. Any urgency is self-created. Further, the court is not persuaded that the applicants would not obtain substantial redress in due course.

Order: The application is struck off the roll for lack of urgency.

Facts and issue: Mr Ngwenya, an employee and NUM member, who was not on strike at the time of the strike, reported to Sibanye Gold Protection Services that he was threatened by the applicant at the local shopping complex. The applicant was found guilty as charged and a sanction of dismissal was meted out. The applicant through his union (AMCU) referred an unfair dismissal dispute to the CCMA challenging substantive fairness. The arbitrator found the dismissal of the applicant to have been substantively fair thereby dismissing the application. The applicant launched this review application challenging the arbitrator’s decision.

Discussion: The applicant was dismissed after being found guilty of threatening a colleague who was not on a strike action just like him. The applicant is alleged to have said that “I know the game that you are playing; I will play the same game against you”, the statement vehemently impugned by the applicant. The arbitrator found that the above words were meant to threaten Mr Ngwenya because the applicant is a member of AMCU. The court could find nothing that justified the dismissal of the applicant, most importantly considering the meaning of the words the applicant is alleged to have uttered, which the arbitrator found to be constituting a threat. Both the applicant and Mr Ngwenya were not on strike at the time. It is unfathomable that the meaning of what is alleged to have been said by the applicant constitutes a threat under the circumstances. It seems that the two parties were talking about something different other than the strike action that was on at the time.

Findings: The decision of the arbitrator is outside the band of reasonableness, and it is not one that a reasonable decision maker could arrive at within the totality of the evidence before him. There must be evidence that links a dismissed employee to the alleged misconduct. As a result, it will be an unreasonable decision to dismiss an employee whose action does not constitute any dismissible conduct. There must be a nexus between the misconduct and the dismissed employee. The arbitrator failed to apply his mind to the evidence or ignored material facts or evidence or he failed to weigh up the probabilities that presented themselves in the versions before him.

Order: The application for review is upheld. The dismissal of the applicant was substantively unfair.

Facts and issue: Review application for an order reviewing and setting aside the arbitration award issued by the commissioner, in terms of which, the commissioner dismissed Mr Cetiyane from the matter due to his absence and in terms of which the dismissals of Mr Dawule and Mr Sibotsa were found to be procedurally and substantively fair and, as a consequence, their referrals dismissed.

Discussion: Mr Cetiyane is one of the three applicants dismissed who referred a dispute in terms of which it was contended that they had been unfairly dismissed. Mr Cetiyane was represented by Mr Joseph Morallana, a union official. The commissioner committed an error of law in dismissing Mr Cetiyane from the arbitration in circumstances where he was represented. There existed no legal basis on which the commissioner was empowered to dismiss Mr Cetiyane in the circumstances. It is the commissioner’s treatment of the evidence of Mr Manoto, whose evidence the applicants argue was hearsay, which lies at the heart of the review. The commissioner acknowledged the applicant’s submission that the confession by Manoto and consequently the implication of Dawule constituted hearsay evidence. There is no indication from the award that a finding was made by the commissioner one way or the other in relation to the nature of the evidence of Manoto.

Findings: The commissioner was required to make a ruling on the admissibility of the evidence tendered in relation to Mr Manoto. That was never done, either during the course of the arbitration proceedings when it should have or in the award. The issue of Mr Manoto’s evidence as hearsay was not dealt with at all as it should have been in accordance with the Law of Evidence Amendment Act. It was evident that the third respondent sought to rely on the outcome of polygraph tests conducted in relation to the employees. Polygraph test results on their own are merely an indication of deception and do not, without more, justify the fair dismissal of an employee. The commissioner failed to approach the issue of the hearsay evidence in the requisite manner, this, in the context where this evidence was presented by the third respondent to corroborate the polygraph test results.

Order: The arbitration award is reviewed and set aside. The dispute regarding procedural and substantive fairness of the applicants is remitted back to the first respondent for determination by a commissioner other than the second respondent.

Facts and issue: Application to review and set aside an arbitration award issued by the commissioner. The applicant was mandated to approach individual bidders for quotations for the building of houses. Based on the score given by Ms Masia-Nobula, Amadwala was ultimately awarded the tender. The applicant appointed Ernst & Young to investigate irregularities in the procurement of service providers. The findings identified that Ms Masia-Nobula was a friend of one of the directors of Amadwala, and that Tebogo’s husband was also a director of Amadwala and that she used her influence in the procurement process to benefit Amadwala. Ms Masia-Nobula was found guilty of disloyalty and dishonesty and the sanction imposed was demotion short of dismissal.

Discussion: The commissioner found that the sanction of permanent demotion is considered too harsh, and that the applicant is to place Ms Masia-Nobula back in the position she was before her demotion. The commissioner’s award is the result of him attaching weight to de Jager’s evidence in respect of what was required in terms of the scoresheet and that this is what, according to the commissioner, dilutes the applicant’s case but for which it would have been stronger. It cannot be seen how it is that de Jager’s evidence dilutes the strength of the applicant’s case in circumstances where the commissioner finds that Ms Masia-Nobula ought to have recused herself. The fact that the applicant was complying with instructions of her manager (de Jager) misses the point. Ms Masia-Nobula was found guilty of a serious charge of misconduct. The sanction imposed was to remove Ms Masia-Nobula from dealing with tenders’ consequent to her misconduct.

Findings: The commissioner’s changing of the sanction issued by the applicant in the face of the conclusions he reached is not supported by the evidence nor by commissioner’s own reasoning, considering the evidence that was before him. The commissioner’s reasoning is misguided, and his decision is not one of a reasonable decision maker. The transgression committed by Ms Masia-Nobula, is, on any assessment, a serious one and more so where tender awards are, and have been for many years, under severe criticism and scrutiny.

Order: The arbitration award is reviewed and set aside and substituted with an award that the demotion of the fourth respondent by the applicant is substantively fair.

Facts and issue: The applicant, Marula Platinum, brought an application seeking an order to review and set aside the arbitration award issued by the commissioner. In his award, the commissioner found that the dismissal of Mr Sejapale was substantively unfair. Following a disciplinary hearing, Mr Sejapale was found guilty of assault, intimidating and/or threatening behaviour. The commissioner found that Marula Platinum failed to prove, on the balance of probabilities, that Mr Sejapale was guilty of assault, intimidating and/or threatening behaviour. As a result, he ordered Marula Platinum to reinstate Mr Sejapale to his position retrospectively.

Discussion: The commissioner noted that he was faced with two contradictory versions of whether the assault took place. Mr Letsoalo sought to rely on his alleged sustained injuries and consultation with the local clinic and his supervisor to prove that Mr Sejapale assaulted him. However, in the absence of the records from the local clinic and his supervisor's testimony, the commissioner found that Marula Platinum provided no evidence to prove, on a balance of probabilities, the alleged assault. Marula Platinum criticised the commissioner for drawing an adverse finding against it for not producing the medical records and not calling Mr Letsoalo’s supervisor as a witness on the basis that both were irrelevant in determining whether an assault occurred. This criticism was unwarranted because the medical records and the evidence by Mr Letsoalo’s supervisor were relevant as Mr Letsoalo relied on them to establish that Mr Sejapale assaulted him.

Findings: The commissioner found the dismissal to be substantively unfair, AMCU sought Mr Sejapale’s reinstatement, and there was no evidence before the commissioner to support the contention that the circumstances surrounding his dismissal were such that a continued employment relationship would be intolerable or that it was not reasonably practicable for Marula Platinum to reinstate or re-employ Mr Sejapale. As such, the commissioner’s decision to reinstate Mr Sejapale does fall within the range of possible justifiable decisions that could be reached based on the facts before the decision-maker. The commissioner assessed the evidence before him and reached a conclusion that any reasonable decision-maker could have reached.

Order: The application is dismissed.

Facts and issue: Application in terms of Section 2(3) of the Wills Act 7 of 1953, to have the Will of the Late Mr Mavuso declared a valid Will and to have the appointment of the second respondent declared invalid. The applicant and the second respondent are siblings and sons of the deceased. The applicant submitted the Will to the Master of the High Court, who rejected same on the grounds that it does not comply with 2(1)(a)(v) in that although it had been signed by deceased with a mark (or thumb print) there was no accompanying commissioner’s certification.

Discussion: Section 2(1)(a)(v) essentially provides that where the testator has signed the will by using a mark, or in this case a thumb print, a commissioner of oaths must certify that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator. The applicant seeks an order that the first respondent be ordered to accept the will in terms of section 2(3). This brings into play section 2(3) of the Act and the court is therefore called upon to determine whether the noncompliance, which is now common cause, should be condoned. A court must order the acceptance of a non-compliant Will buy the Master once it is satisfied that the Will was drafted or executed by the deceased who intended it to be his last Will. The applicant argued that it is through no fault of the deceased that the required certification was not done as required by the section and that this will prejudice the beneficiaries of his will.

Findings: The evidence proves that the mark or thumb print on the impugned Will was made by the deceased, the court is accordingly satisfied that the document represents the last Will of the deceased. Having been satisfied that the document represents the last will of the deceased, the court, in the light of section 2(3), has no discretion but to grant the condonation. In the result the condonation for the non-compliance of the Will with the formalities prescribed by section 2(1)(a)(v) of the Act should be granted.

Order: The failure of the deceased to comply with the formalities set out in section 2(1)(a)(v) of the Wills Act 7of 1953 is condoned. The Will made and signed by the deceased is declared the Last Will and Testament of the deceased.