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[2026] ZALCCT 69
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Mphalwa v Public Health and Social Development Sectoral Bargaining Council and Others (C457/2023) [2026] ZALCCT 69 (15 April 2026)
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Case
No: C457/2023
(1)
Reportable: No
(2)
Of interest to other Judges: No
15
April 2026
In
the matter between:
NQABA
ALBERTUS MPAHLWA
Applicant
and
PUBLIC
HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
First
Respondent
COMMISSIONER
TERESA ERASMUS
N.O.
Second
Respondent
DEPARTMENT
OF HEALTH: WESTERN
CAPE
Third
Respondent
Heard
:
29 January2026
Delivered
:
15 April 2026
Summary:
(Review –
misconduct
– various charges – Authenticity of documents –
onus - Belated request to lead expert medical
evidence –
arbitrator entitled to refuse to admit such evidence in the
circumstances
)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This is an opposed application for the reinstatement of a review
application and the determination of the merits of the
review
application if it proceeded. There were a couple of other
interlocutory points raised by the parties, which are dealt with
in
the course of the judgment.
[2]
The matter originally was enrolled for hearing on 13 August 2025 but
had to be postponed to 19 August 2025 owing to the
unavailability of
an interpreter. At the postponed hearing the application had to be
postponed again to allow the applicant to
deal with an
in limine
objection and a condonation application for the late filing of
its heads of argument. After that hearing and the filing of further
affidavits by the parties, the applicant requested that the matter be
re-enrolled for an oral hearing. Thereafter, the applicant
applied to
file a further affidavit, which the respondent opposed.
[3]
At the hearing on 29 January 2026, some of the preliminary matters
were disposed of on in terms of rulings handed down
orally in court,
after hearing argument. The reasons for the rulings are set out
briefly below. Thereafter, the remaining interlocutory
matter and the
merits of the review are addressed.
Ex tempore
rulings
[4]
The
ex tempore
rulings made were that:
4.1
The late filing of the third respondent’s supplementary heads
of argument contrary
to the court order requiring it to file
supplementary heads of argument ten days before the hearing on 29
January 2026 is condoned.
4.2
The
in limine
objection that the review application was deemed
withdrawn in terms of the clause 11.2.2 read with clause 11.2.3 of
the Labour Court
Practice Manual (‘the practice manual’)
is dismissed.
[5]
The supplementary heads of argument of the third respondent (the
‘department’ or ‘employer’) were
filed on 23
January 2026, six calendar days before the hearing, whereas they
should have been filed 10 court days beforehand. The
applicant is
right to take the department to task for its non-compliance, but he
did not file a notice of objection prior to the
hearing on 29
January. In terms of Rule 40(5) of the Labour Court Rules a
court may make a punitive cost order against a
party in default or
may strike a matter off the roll. In this instance the supplementary
heads concerned limited issues and the
applicant was able to deal
with them by the time the matter was heard. I am not persuaded that
this is an instance where the deviation
from the order was serious
enough to warrant a punitive cost award, considering also that the
applicant is representing himself
and the inconvenience was not
significant.
[6]
The department argued that the review application as deemed withdrawn
because the entire record had not been filed within
60 court days of
it being made available by the court. The last tranche of the
record was received by the applicant’s
erstwhile attorney on 15
January 2024, but the record was then partly filed by 9 April 2024
and the balance by 10 April 2025.
The primary difficulty with
the department’s objection is that the 60-day period only
commences running when the applicant
party in the review proceedings
receives notice from the registrar that the record has been received.
[7]
It is apparent that the In this instance, even though it is
reasonable to assume that such a notice was issued by the
registrar
when portions of the record were received, there is no evidence in
the court file that a Rule 7A(5) notice, which
was date stamped
15 January 2024, was actually communicated to the applicant’s
erstwhile attorneys of record. Even if it
had been sent on that date,
60 court days from that date expired on 10 April 2024, which would
mean the record was completely filed
only one day late. In any event,
as there was no evidence when the notice was sent out by the
Registrar, it cannot be confidently
said it was sent on the date
appearing on the notice. Accordingly, it cannot be said with
certainty that the 60-day rule was not
complied with and,
consequently, it cannot be said that the provisions of the practice
manual deeming the review application withdrawn
were triggered.
[8]
In short, the review application did not elapse despite the long
delay and it was not necessary for the applicant to apply
for
condonation for the filing of the record, nor to bring a
reinstatement application.
Other interlocutory
issues
[9]
For the sake of clarity to the extent that other interlocutory issues
were not expressly pronounced on during the course
of the
proceedings, I address them below.
Condonation of late
answering affidavit
[10]
The department’s answering affidavit in the review application
was two days late. This delay occurred in
the context of the
applicant having taken 19 months to finalise his review application.
Even in the absence of a good explanation
for the delay, it would be
absurd to penalise the department for a delay of 48 hours given the
length of time taken by the applicant
to finalise his application.
The administrative delays mentioned by the department are not
implausible and did not result in any
great inconvenience to the
applicant, quite apart from the fact that the department had already
succeeded in the arbitration proceedings
and therefore had shown it
had successfully defended the applicant’s dismissal once, which
indicates it had some prospect
of defeating the review. For these
reasons the late filing of the answering affidavit in the review
application should be condoned.
Admission of applicant’s
further affidavit in response to the department’s replying
affidavit
[11]
The applicant sought leave to file a replication to issues he claims
were raised for the first time in the department’s
replying
affidavit in its condonation application and
in limine
objection. The introduction of a further affidavit was opposed by the
respondent. I am not persuaded that the applicant’s
further affidavit is justified, but whether admitted or not it does
not affect the merits of the issues raised. As I have already
mentioned, the late filing of the answering affidavit ought to be
condoned for the reasons stated above and further replying affidavit
does not affect that conclusion, so does not prejudice the
respondent. Accordingly, I accept it may be admitted as part of the
record.
[12]
With the interlocutory matters disposed of, the merits of the review
application can be addressed.
Introduction
[13]
The applicant, Mr N Mphalwa (‘Mphalwa’)
was employed by the department since 2015 as a Central Processing
Operator at
the Red Cross Hospital. He was originally found guilty of
six charges of misconduct and dismissed at the end of April 2023
following
an unsuccessful internal appeal hearing.
[14]
By the time the arbitration hearing took
place it had been discovered that the first charge concerned
misconduct which had previously
been dealt with in another
disciplinary process, so the arbitrator only had to consider the
remaining five charges of alleged misconduct,
namely:
14.1
Charge 2 concerned Mphalwa’s absence
without permission from work from 17 September to 15 October 2021.
14.2
Charge 3 concerned his failure to follow a
lawful instruction from his supervisor by failing to submit a medical
center certificate
within a reasonable time when requested to do so.
14.3
Charge 4 concerned an email sent to his
supervisor on 10 August 2021 in which he was derogatory and grossly
disrespectful. In the
email he had responded to an email from
Itumeleng as follows:
‘
Don’t
get frustrated I have responded but not with a (fist emoji).
Let’s pray they
don’t hit you again!’
The reference to
Itumeleng being hit was to an unrelated incident in which other staff
had assaulted him. Itumeleng had complained
to his superior about
this email mentioning that Mphalwa had previously described dealing
with Itumeleng as if he was dealing with
an elephant rather than a
lizard. Itumeleng had also testified that working with Mphalwa
presented a lot of challenges of that
he was a very difficult person
who was always trying to put someone down with his disrespectful
attitude and he never listened
to his supervisor. He also did not
work with other staff in the department and was not punctual. Efforts
to accommodate him did
not work. He testified how Mphalwa’s
conduct reduced him to tears and his decision to apply to move to
another hospital because
of the bad relationship with Mphalwa made
him fearful and uncomfortable and disrespected in front of other
staff.
14.4
Charge 5 concerned a separate failure to
carry out orders and another derogatory and disrespectful email
directed at his supervisor
on 7 December 2021. In that email
concerning incapacity leave application forms, the following
statement appeared in the text of
the email:
‘
You
are warned and advised to refrain from taking unlawful instructions
from so called nursing management’
14.5
Charge 6 concerned his failure to carry out
orders of supervisors by leaving the workplace on Friday 4 February
2022 contrary to
an express instruction from the Head of Nursing Ms M
Franken (‘Franken’) conveyed to him by the Senior Labour
Relations
Officer, Ms Absolom, in the presence of Jekels.
Summary of the award
[15]
The issue before the arbitrator was whether the dismissal of the
Applicant was procedurally and substantively fair, as
contemplated in
section 188
of the
Labour Relations Act 66 of 1995
.
[16]
The disciplinary hearing was postponed on several occasions, largely
at the Applicant’s instance, due to claims
of ill health
supported by medical certificates. Ultimately, after four
postponements, the hearing proceeded on 9 March 2023 in
the
Applicant’s absence. The Applicant was dismissed following the
outcome of the disciplinary process, and his internal
appeal was
unsuccessful. At the time of dismissal, the Applicant earned R12
756.00 per month gross.
[17]
The Applicant challenged his dismissal on both procedural and
substantive grounds. Procedurally, he contended that it
was unfair
for the disciplinary enquiry to have proceeded in his absence while
he was ill, and that the Respondent had subjected
him to double
jeopardy by charging him for misconduct in respect of which he
alleged he had already been warned. Substantively,
he denied the
misconduct, maintained that his absenteeism was medically justified,
and asserted that his email communications had
been misunderstood and
were not intended to be disrespectful. He sought retrospective
reinstatement and compensation equivalent
to twelve months’
remuneration.
[18]
The Respondent maintained that the Applicant had a persistent and
excessive pattern of absenteeism; that he repeatedly
failed to comply
with clear and reasonable instructions relating to the submission of
medical certificates; that his written communications
to supervisors
and managers were grossly disrespectful, offensive, and
unprofessional; and that his conduct had irreparably damaged
the
employment relationship. The Respondent further argued that the
disciplinary chairperson acted fairly in eventually proceeding
with
the hearing in the Applicant’s absence after numerous
postponements and clear warnings regarding the consequences of
further non attendance.
[19]
As mentioned above, during the arbitration it emerged that the
Applicant had in fact previously received a written warning
relating
to one of the charges. As a result, the Respondent withdrew charge 1
at the commencement of the arbitration proceedings.
Nonetheless, the
arbitrator was satisfied that the remaining five charges were
independently established and were sufficiently
serious to warrant
dismissal.
[20]
In assessing procedural fairness, the arbitrator found that the
disciplinary chairperson had exercised his discretion
properly. The
Applicant had been granted multiple postponements over an extended
period, each of which accommodated his requests.
Before proceeding in
the Applicant’s absence, the chairperson clearly informed him
that further postponements would not be
granted without objective
medical confirmation, either by way of an affidavit or the attendance
of the Mphalwa’s medical
practitioner. However, the
Applicant neither attended the hearing nor furnished the required
supporting medical documentation
to justify a further postponement.
The arbitrator concluded that the chairperson had bent over backwards
to accommodate him. The
arbitrator found that the chairperson’s
decision to proceed was fair, reasonable, and consistent with the
need for disciplinary
processes to reach finality. The dismissal was
therefore procedurally fair.
[21]
Regarding substantive fairness, the arbitrator accepted the
Respondent’s evidence that the Applicant contravened
the Code
of Conduct by absenting himself without proper authorisation, failing
to follow lawful instructions, and directing emails
to management
that were derogatory, disrespectful, and upsetting. The arbitrator
found that the Applicant demonstrated no insight
into his misconduct,
showed no remorse, and was an unreliable witness. Of some
significance was the finding that the Applicant
attempted to mislead
the arbitrator by submitting a falsified document purportedly
authorising him to leave the workplace. The
document was purported to
be agreement between himself and Ms Jekels (‘Jekels’), a
supervisor, which supposedly gave
him permission to leave the
workplace, whereas she neither signed nor drafted the document. The
arbitrator held that the Applicant’s
sustained disregard for
authority, his pattern of misconduct since at least 2021, and the
breakdown of trust rendered continued
employment intolerable.
[22]
The arbitrator concluded that dismissal was an appropriate and
proportionate sanction in the circumstances. Accordingly,
the
Applicant’s dismissal was found to be both procedurally and
substantively fair, and the Applicant was held not to be
entitled to
any relief.
Grounds of review
[23]
In his founding affidavit grounds of review
were merely stated in the most general terms without any factual
references. It is only
in his supplementary affidavit that Mphalwa
set out grounds of review based on specific factual averments.
First ground (alleged
fraudulent documents)
[24]
This ground concerned the authenticity of
certain contested documents. Mphalwa had been asked to produce the
originals a couple
of documents in his bundle, as the purported
management signatories to the documents disputed signing such
documents.
[25]
The first was a written warning of six
months’ duration, issued on 8 April 2021, in which he had been
found guilty of unprofessional
behavior towards his line manager on 1
February 2021 and posted disparaging remarks about him in an
‘impudent’ manner.
At the start of the arbitration, it
was agreed that the original version of the written warning was no
longer required because
the employer agreed that it had indeed been
issued. This was the reason the first charge was withdrawn.
[26]
The second document was an alleged ‘verbal’
warning, recorded in writing, issued on 10 December 2021 for writing
emails
to Mr T Itumeleng (‘Itumuleng’), his supervisor,
on 10 August 2021 and 7 December 2021, in which it is alleged he
communicated
disrespectfully and threateningly on the first occasion
and disrespectfully on the second. The third document was the
purported
agreement between Mphalwa and Jekels. The document stated,
amongst other things, that after a face-to-face meeting on 4 February
2022, they had agreed to Mphalwa being absent on that day for one
day’s annual leave to see his psychiatrist. It contained
an
extraordinary final paragraph stating:
‘
If
signed by both parties, then contents of this document will be
binding and may be used as evidence in the near future.’
(
sic
)
[27]
In answer to the commissioner’s
queries, Mphalwa confirmed that he did not have the originals of the
two contentious documents.
The arbitrator asked how he was going to
deal with that issue. Mphalwa claims the arbitrator did not entertain
what Mphalwa wanted
to say but said she would hear the evidence and
make a ruling on the admissibility of the two pages, when writing his
award. He
then proceeded to ask the parties for their opening
statements. When Mphalwa said he wanted to submit something in
relation to
the documents the arbitrator said that she could not deal
with it at that point and pressed him to provide his opening
statement.
[28]
Mphalwa claims that he wanted to respond to
the
in limine
objection about the authenticity of documents he had provided, but
the arbitrator would not allow him to submit an affidavit in
support
of the authenticity and denied him an opportunity to submit an
affidavit at a later stage. However, the arbitrator nevertheless
took
account of the objection whenshe stated in the award that the
substantive fairness of the dismissal related to “the
alleged
fraudulent documents handed in by him.
[29]
Mphalwa also contends that the arbitrator
committed misconduct by not attaching any weight to his evidence
about the documents from
the outset.
[30]
He argues that, in the absence of expert
evidence disputing the authenticity of the two documents, the
arbitrator could not have
made a finding against him on the balance
of probabilities and in so doing misconstrued the evidence.
[31]
The employer agrees that Mphalwa wanted to
produce an affidavit to respond to its objection about the
admissibility of the two documents.
Notwithstanding the
commissioner’s failure to admit the affidavit, the employer
contends that Mphalwa had an ample opportunity
to question its
witnesses when they gave evidence on the documents. When they gave
evidence, he did not attempt to introduce any
document to discredit
their version that they were neither the authors nor signatories of
the documents they purportedly signed.
Moreover, even in his evidence
in chief he did not raise the issue of the affidavit in his evidence,
nor did he attempt to explain
the origin of the supposed agreement
with Jekels. It contends that the department’s witnesses’
version that the documents
in question were never produced nor ever
signed by them was consistent and was neither discredited nor
refuted.
[32]
The department further argues that the
arbitrator’s view of the documents was determined by Mphalwa’s
failure to produce
the originals and the employer’s evidence
they were fraudulent. Accordingly, the arbitrator’s conclusion
that he had
attempted to mislead her by relying on them was a
reasonable conclusion based on the evidence. Consequently, she did
not misconstrue
the evidence relating to the documents.
[33]
The respondent also points out that the
arbitrator agreed to provisionally admit the documents despite the
absence of the originals,
subject to making a final decision on their
admissibility later and that there was nothing untoward about that.
Moreover, it was
Mphalwa who was responsible for proving the
authenticity of the documents and accordingly he failed to appreciate
that the arbitrator
was entitled to doubt their authenticity in the
absence of the purported authors of the documents confirming them.
Not only did
he fail to discredit the employer witness’s
testimony discrediting the authenticity of the documents, but he also
failed
to deal with that issue in his own evidence in chief.
Accordingly, there was nothing unreasonable about the arbitrator’s
findings on the status of the documents. In particular, the
arbitrator’s finding that the supposed agreement signed by
Jekels
was probably falsified was a finding a reasonable arbitrator
could have reached.
[34]
I cannot find fault with the submissions of
the department set out above and, consequently, the first ground of
review must fail.
[35]
Another criticism made by Mphalwa of the
arbitrator’s findings about the authenticity of the affected
documents, relates partly
to the discussion above. It concerned the
absence of expert evidence on the authenticity of the document. He
argued that without
expert evidence the arbitrator was in no position
to make a finding on the authenticity of the documents. The
department retorts
that the arbitrator was entitled to make a finding
on the authenticity of documents based on the evidence which was
presented.
Had Mphalwa obtained an expert’s report on the
authenticity of the documents, then that evidence would have been
relevant,
but the absence of expert testimony did not preclude the
arbitrator from making findings on the evidence presented.
[36]
I
cannot find any fault with the arbitrator’s approach in
determining if Mphalwa had established the authenticity of the
disputed documents as a matter of probability. The evidence presented
was sufficient for the arbitrator to conclude that Mphalwa
had failed
to discharge his onus in regard to the documents
[1]
.
The finding to the effect that the ‘agreement’
purportedly concluded with Jekels was a fabrication was not an
unreasonable
one to draw, especially given the peculiar wording of
the last sentence in the agreement which appears to have been
premised on
the likelihood of a disciplinary enquiry being held
relating to the whether or not she had granted the permission
recorded in the
agreement. It begs the question, why willing parties
to such an agreement, would have anticipated an imminent dispute
about their
written agreement and felt it was still necessary to
augment it with such a provision. It is perfectly plausible to infer
that
the provision was inserted in the knowledge that there would be
a dispute about whether Mphalwa was given permission to leave the
premises, because no permission had, in fact, been given.
Sick certificate finding
[37]
Mphalwa takes issue with the finding of the
arbirator that Itumeleng, had indicated that a sick certificate on
page 29 of his bundle
was not the same certificate that was attached
to an email sent on 20 September 2021. He contends that his
supervisor did not testify
to that effect and accordingly the
arbitrator misconstrued the evidence in finding that Itumeleng had
testified to the difference
in the certificates.
[38]
The employer points out that much of
Itumuleng’s evidence was recorded as ‘
inaudible
’
in the transcript. From the transcript it appears that his evidence
was given on MS Teams and the connection was poor. Consequently,
the
department could not directly address this allegation in the absence
of the missing portions of his evidence being properly
reconstructed.
Moreover, it contends that even if the arbitrator might have
incorrectly summarised the evidence, it would not have
amounted to a
reviewable irregularity that would vitiate the entire award.
[39]
In my assessment, even if Mphalwa’s
contention on this point is correct, it does not follow that his
ultimate findings are
unsustainable.
Failure to consider the
applicant’s bundle of documents
[40]
In a somewhat vague statement Mphalwa
claims that the arbitrator committed misconduct by not attaching
enough weight to the evidence
presented in his bundle.
[41]
The employer argues that the statement is
too vague to respond to but, in any event, he does not provide any
reason why the arbitrator
should have attached more weight to the
documents in his bundle than the oral evidence of the department’s
witnesses and
its bundle.
[42]
Apart
from the vagueness of this ground, it must be stressed that the mere
fact a document is part of a litigant’s bundle,
does not make
that document part of the evidence
[2]
,
unless it is admitted as evidence by agreement or unless it is
introduced in the course of a witness’s testimony. In most
proceedings where oral testimony is given, many of the documents in a
bundle will never be introduced as part of the evidence given
in the
course of that testimony.
The scheduling of the
disciplinary inquiry
[43]
Whereas the arbitrator acknowledged that
Mphalwa testified that the chairperson deliberately scheduled the
disciplinary hearing
on a day when he knew that he was booked off,
namely 6 and 9 March 2023, the arbitrator should have found that the
respondent acted
in bad faith in doing so.
[44]
The department disputes that the arbitrator
accepted Mphalwa’s contention that the chairperson of the
inquiry had sabotaged
the inquiry and contends that in any event the
allegation is not supported by the evidence which showed that the
inquiry had been
postponed on numerous occasions at Mphalwa’s
request and that he was pertinently warned the inquiry would be
proceed in the
absence of a supporting affidavit from Mphalwa’s
doctor confirming why he would be unable to attend the disciplinary
proceedings.
Admission of irrelevant
evidence
[45]
Mphalwa complains the arbitrator did not
address his objection to the relevance of certain evidence led by
Franken and had advised
him to save his objection for
cross-examination. He argues that because this irrelevant evidence
was led the arbitrator committed
a gross irregularity in the conduct
of the arbitration proceedings.
[46]
Before Mphalwa raised his objection,
Franken was testifying about the sixth charge, which related to him
leaving the workplace on
Friday 4 February 2021. She was testifying
that Mphalwa had come back on duty that day and he had indicated he
was going to leave
again as he had an appointment. However, she
instructed the supervisors and the Labour Relations Officer to inform
him that he
cannot leave the premises because the appointment he
wanted to attend was not an emergency. She believed this was another
instance
of his repetitive conduct of coming to work, leaving
early, and then staying away for three or more months from the
workplace,
which management had discussed with him on several
occasions. It was when she was detailing how few days he had worked
in a year
that he objected.
[47]
The department retorts that the evidence of
the pattern of his prior absenteeism and habit of appearing and then
leaving work was
highly relevant in informing Franken’s
decision to forbid him to leave the premises that Friday. Moreover,
the arbitrator’s
direction that he could deal with that matter
in cross-examination was not prejudicial to him. Accordingly, there
is nothing irregular
about the way the arbitrator handled his
objection.
[48]
I agree with the department’s
submissions in this regard.
Opportunity to call a
doctor to testify
[49]
Mphalwa also claims that the arbitrator
committed an irregularity by failing to give him an opportunity to
call a doctor to testify
about his inability to defend himself in the
disciplinary enquiry on account of his illness. The arbitrator had
refused his request
to call the doctor because no doctor’s
evidence had been put to any of the department’s witnesses.
Mphalwa contends
that the arbitrator should not have dismissed his
request out of hand without knowing what evidence the doctor was
going to lead
and the employer would still have had an opportunity to
cross-examine the doctor and lead any additional evidence in
rebuttal.
[50]
The department points out that it was
explained at the commencement of the arbitration how important it was
for Mphalwa to put his
version to the employer’s witnesses and
that, if it was not done, that evidence could not be led by Mphalwa
after the employer
had presented its case. No version of any doctor’s
evidence was put to any of the department’s witnesses. It also
pointed
out that Mphalwa was familiar with the way evidence was led,
because he had previously represented other employees in disciplinary
hearings.
[51]
It
is a time honoured legal principle that a party who is going to lead
its own evidence after its opponent has done so, must put
its version
of the evidence it is going to lead to the opponent’s
witnesses
[3]
. If that is not
done, the evidence it subsequently leads is protected from
contradiction by the opponent’s witnesses and
is necessarily
devalued on account of not having been tested with witnesses who
might have been able to dispute that evidence.
It would also not
alert the opponent of the need to call its own witnesses to rebut
that version before closing its case.
[52]
In this instance, it is correct that if
Mphalwa intended to call a medical expert to give evidence of his
inability to have attended
the enquiry, the doctor’s evidence
should have been put to the chairperson of the enquiry. In that case,
the department would
have been alerted to the need to summon its own
medical expert to deal with that evidence. It is true that it is
possible that
the department could have been given an opportunity to
lead such evidence by way of calling a medical expert in rebuttal but
the
arbitrator was not obliged to make a ruling to that effect.
Mphalwa should have given the department prior notice of his
intention
to lead such evidence. More importantly, the issue concerns
whether it was fair of the chairperson of the disciplinary enquiry to
proceed in Mphalwa’s absence. Mphalwa was specifically invited
to either produce an affidavit from his doctor or to call
the doctor
to testify about his inability to attend the enquiry, but he declined
to do so. Leading evidence after the enquiry
to establish his
incapacity at the time of the hearing, could not have advanced
Mphalwa’s argument that it was unfair of
the chairperson to
proceed with the enquiry, when he had not taken up the chairperson’s
invitation at the time to support
his claim that he was too
incapacitated to participate in the enquiry.
[53]
Thus, evidence given in the arbitration by
an expert, would not have been relevant to determining whether the
chairperson acted
fairly
at the time
in refusing to postpone the enquiry yet again, on the information
that was before him then. Accordingly, this ground of review
must
also fail.
Conclusion
[54]
I cannot find any gross irregularity of the
arbitrator in the handling of the proceedings or her handling of the
evidence and the
inference she drew from it resulted in her reaching
an outcome that no reasonable arbirtrator could have reached.
Order
1.
The late filing of the Third Respondent’s
answering affidavit in the review application is condoned.
2.
The Applicant’s further supplementary
affidavit is admitted as part of the record.
3.
The
review application is dismissed.
4.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
---In Person
For
the Respondent: ---
C
Davids
Instructed
by:
--- State Attorney Cape Town
[1]
See
CRC
Engineering (Pty) Ltd v JC Dunbar and Sons (Pty) Ltd
1977 (1) SA 710
(W) at page 712: ‘
When
the execution or authenticity of a document is put in issue, the
onus rests on the party relying on that document to prove
it, and
that he does by calling the person who signed it or someone who saw
him sign it.’
[2]
Swissborough
Diamond Mines (Pty) Ltd v Government of the RSA and Others
1999
(2) SA 279
(T) at paragraphs 12 and 13.
[3]
President
of The Republic of South Africa and Others V South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) at paragraphs 61 to 65.