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[2026] ZALCCT 147
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Adams v General Public Service Sectoral Bargaining Council and Others (C382/2023) [2026] ZALCCT 147 (3 September 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No:
382/2023
(1)
Reportable: No
(2)
Of interest to other Judges: Yes
(3)
Revised
03/09/2026
In the matter between:
GAVIN
ADAMS
Applicant
And
GENERAL
PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
First
Respondent
REZA
SLAMANG, COMMISSIONER
(N.O.)
Second
Respondent
DEPARTMENT
OF WATER &
SANITATION
Third
Respondent
Summary:
(Opposed review of recusal ruling – Consideration
of test – Ruling set aside and remitted for
de novo hearing)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This is an application to review an
interlocutory ruling by an arbitrator dismissing an application to
recuse himself in an unfair
labour practice dispute hearing, brought
by a job applicant, Dr. G Adams (‘Adams’). Unusual as
this is, it is even
more unusual in not being enrolled on an urgent
basis, but on the ordinary opposed motion roll. Nonetheless, the
arbitration did
not proceed while the review application was pending.
[2]
Adams is working at the Department of
Trade, Industry and Competition (‘DTIC’) and occupies the
post of Director: Spatial
Industrial Development He had applied for
the post of Chief Director: Provincial Head (Western Cape) in the
Department of Water
and Sanitation (‘the DWS’ or ‘the
employer’). He is aggrieved because he was not even shortlisted
for the
post and believes there was no justification for excluding
him without even granting him an interview.
[3]
The employer stated that the reason for not
shortlisting him for the post was because he failed to failure to
meet the minimum qualification
requirements of the post, which
required an appropriate degree at NQF Level 7 in Natural Science,
Environmental Science, Agriculture,
Engineering, Economic Science, or
Hydrology. His qualifications were a PhD in Quality Management
/ Human Resource Development
(HRD), a Master's in HRD, and a National
Diploma in Structural Construction, which did not satisfy the
criteria.
Context in which the
recusal application arose
[4]
Adams represented himself and the had two legal representatives
appearing for it. Understandably as a lay litigant that might have
caused him some anxiety. However, his complaint is that the
arbitrator, in effect displayed bias towards him, in the way he
conducted
the arbitration hearing.
[5]
Things came
to a head when the arbitrator gave the DWS an opportunity to make an
application under Rule 30 of the bargaining council
Rules for the
Conduct of Proceedings before the GPSSBC
[1]
to compel him to discover his previous 9 years performance agreements
and performance assessments at the DTIC. A1 is of the view
that those
documents were irrelevant to whether he qualified to be shortlisted
or not, because that was supposed to be determined
by measuring the
applicant’s CV against four criteria. The DWS claimed that the
documents were necessary to verify what Adams
actually did at the
DTIC. It appears to be common cause that these were not documents he
had to submit for the shortlisting.
Accordingly, he argued the
documents are completely irrelevant to whether he was unfairly
refused an interview. On the face of
it his argument has some merit,
especially in relation to his actual performance assessments.
[6]
Be that as it may, events unfolded as follows. Although the
arbitrator initially set timetables during the 12–13 April 2023
sittings for the employer to file a formal application for disclosure
under Rule 30 and 32 and for Adams to respond, Adams pre-emptively
delivered an objection and recusal request on 13–14 April 2023
before any disclosure ruling could be argued or finalised
on the
merits.
[7]
Rather than immediately deciding the disclosure dispute, the
arbitration was adjourned to allow the parties to exchange formal
written affidavits regarding Adams' recusal application. On 19 June
2023, the arbitrator issued a written ruling on 19 June 2023
dismissing Adams' recusal application and ordered the employer to
serve and file a formal Rule 32 / Rule 30 application if it still
wished to persist with obtaining the disclosure of the performance
documents.
The arbitrator’s
reasons for dismissing the recusal application
[8]
The arbitrator dismissed A1’s recusal application, primarily
because he believed that the complaint was based primarily on
his
decision to entertain an application by the employer to order him to
disclose past performance records and agreements.
[9]
He reasoned that issuing procedural directions to regulate a
disclosure application under the rules of the bargaining council did
not constitute bias or pre-judgment. It affords both parties an equal
procedural opportunity to argue relevance and admissibility
before
any decision is made.
[10]
The arbitrator did express the view that the application was brought
as an opportunistic litigation strategy, because it was conditional,
baseless, and designed to manipulate the forum and evade potential
adverse procedural rulings on disclosure. His reference to it
being
conditional was presumably because Adams phrased his request for
recusal in a curious fashion, namely:
"That being said,
the Applicant herewith requests recusal of the current commissioner
if he were to continue
with his openness toward granting
access to evidence involving documentation other than the CVs of
candidates who had applied for
the position in question".
(emphasis added)
The
arbitrator took offence as Adams was clearly indicating that he would
proceed with the application if the arbitrator ruled against
him on
the requested disclosure the employer was pressing for.
[11]
Because he viewed the recusal application as a baseless abuse of the
council's processes, he dismissed the application and ordered
that
costs stand over for determination at the conclusion of the
proceedings.
Dispute over
appropriateness of the recusal application and interlocutory review
of the ruling
[12]
The DWS
raised a preliminary point about the recusal application was
opportunistic and brought prematurely to derail ordinary
interlocutory
directions regarding discovery under Rule 30. Relying
on the cases of SA Commercial Catering & Allied Workers Union &
others
v Irvin & Johnson Ltd (Seafoods Division Fish
Processing)
[2]
SACCAWU
v Irvin & Johnson Ltd and Public Protector v Chairperson of the
Section 194 Committee
[3]
,
the employer argued that a party must await the final determination
of the arbitration before taking interlocutory decisions on
review
unless grave, irremediable injustice is shown.
[13]
An additional hurdle that faces an applicant who wishes to review a
decision of an arbitrator in an incomplete arbitration is
section
158(1B)
of the
Labour Relations Act, 66 of 1995
, which states:
‘
The
Labour Court
may
not review any decision or ruling made during conciliation or
arbitration proceedings conducted under the auspices of the
Commission
or any bargaining council in terms of the provisions of
this Act before the issue in dispute has been finally determined
by the Commission or the bargaining council, as the case may be
,
except if the Labour Court is of the opinion that it is just and
equitable to review the decision or ruling made before the issue
in
dispute has been finally determined
.’
(emphasis added)
[14]
This provision was introduced to strongly
discourage the piece meal review of arbitration proceedings, and to
avoid this court being
overwhelmed by reviews on all manner of
rulings in part-heard proceedings. In a review of a recusal
application which essentially
is a claim that the proceedings have
already been so tainted by the conduct of the arbitrator, that there
is no reasonable prospect
of the merits of their case being fairly
tried. The following extract from the
Public
Protector
decision is relevant here:
‘
[44]
Reliance was also placed by counsel for the applicant on the decision
in
Bernert
v ABSA Bank
in which it was held that it is not in the interests of justice for a
litigant to wait until an adverse judgment before seeking
recusal
when the facts relied on were known to the applicant during the
proceedings. However not only is that matter distinguishable
from the
present in that the litigant in Bernert failed to apply for the
recusal of judges when the facts that he raised later
on appeal,
after the finalisation of the case, were known to him during the
proceedings, but
the
test is rather whether the applicant suffered resultant material and
irreversible harm at the stage complained of during the
proceedings
.
It is in this crucial respect that she bears a formidable burden.
Put
differently, the applicant must show that it is not the nature of the
irregularities complained of per se that entitles her
to relief in
this application, but rather that the proceedings themselves have
been irremediably tainted thereby, resulting in
grave injustice which
cannot be corrected by a court in due course.
’
[15]
Accordingly, Adams will only be entitled to
relief if he can meet this threshold. To assess that it is necessary
to look at the
various grounds of review which he has raised to
overturn the recusal ruling to see if any are sufficient to warrant
intervention
at this stage.
Grounds of review
Adams’s complaints
[16] Adams argued
that the arbitrator
acted in concert with the
employer’s counsel or functioned as a "third legal
opponent". He identified a number of
issues which he believes
illustrated the arbitrator’s lack of neutrality and why his
decision was wrong, without indicating
whether he was contending that
the arbitrator committed an error of law or whether his ruling was
one no reasonable arbitrator
could haver reached. His criticism of
the arbitrator’s ruling reads more like a direct appeal against
it. Be that as it may,
given his lack of expertise in the nuances of
the arcane law of review in this court, his complaints will be
evaluated against
the review test as if he had framed them as attacks
on the reasonableness of the award, or mistakes of law. The same
indulgence
would not be appropriate if he were legally represented.
His complaints and the evaluation thereof are summarised below:
[17]
His grounds can be categorised in two
groups. One group concerns substantive rulings the arbitrator has
ostensible made on issues
such as the admissibility of evidence, and
the like. The other concerns whether he is being treated even
handedly in the conduct
of the hearing. I appreciate, that he may
interpret some of the issues like the admissibility of evidence as
also relating to whether
he is getting a fair hearing, but they are
issues which will also affect the viability of the arbitrator’s
reasoning in the
award. As such they can appropriately be dealt with
when the award has been handed down, by way of a review of the award
itself.
Importantly, they will usually be matters that the court on
review can correct is the award is reviewable, without remitting the
matter back for a rehearing.
Grounds of review
pertaining to the arbitrator’s general conduct of the hearing
[18]
The following grounds have been raised
concerning how the arbitrator has managed the arbitration
proceedings.
[19]
Assisting the employer in prosecuting its
case: Adams complained that the arbitrator actively encouraged and
directed the employer
to lodge a
Rule 30/Rule
32
application
compelling Adams to disclose 9 years of past performance agreements
from the DTIC. Adams asserted that the dispute
strictly concerned
non-shortlisting based on candidate CVs evaluated against four
criteria, making past performance assessments
irrelevant,
prejudicial, and a breach of privacy.
[20]
Demeaning behaviour of employer’s
representatives: Adams alleged that the employer’s
representatives (Advocate Holby
and Advocate Sibisi) engaged in
continuous unruliness, shouted across the table (such as stating he
was "lying" on his
CV), laughed, and ridiculed him while
the arbitrator failed to intervene, protect a self-represented
employee, or maintain proper
order.
[21]
The DWS argued that Adams misunderstood
that what was said to him was that it would be ‘put to him that
he was lying in his
CV’ and that this would be demonstrated if
the employer obtained the documents it was asking for. While that
might seem a
somewhat harsh statement, in the context of
cross-examination it is not beyond the bounds of what is permissible,
even it might
be more gently rephrased to say it would be put to him
that he ‘is not telling the truth’. In the end the
thrust
or the proposition is the same and is a legitimate one to put
to a witness when a basis is laid for making it. The arbitrator did
not display bias by permitting the advocate to state that he intended
to put that proposition to Adam under cross-examination.
The
representative denied laughing at him and argued that he too, had
laughed on occasion in the proceedings. The question of not
being
protected from the two representatives is discussed in more detail
below.
[22]
Lack of impartiality: Adams contended that
the arbitrator acted in concert with the employer's counsel,
frequently warning Adams
to heed the employer’s arguments,
telling Adams that "we don't operate with feelings," and
functioning as a "third
legal opponent" rather than an
impartial referee providing guidance to a layperson.
[23]
Inappropriate Personal Remarks: Adams took
offense at the arbitrator’s remark advising him to take "a
glass of wine tonight
or whiskey" to prepare for
cross-examination, which Adams construed as a derogatory and
unprofessional comment.
[24]
Failure to Record Proceedings: Adams
highlighted that the arbitrator failed to record the proceedings of
day two (13 April 2023),
resulting in the loss of his
evidence-in-chief from the official record.
Grounds of review
pertaining to the arbitrator’s rulings on evidence
[25]
Adams did not believe his previous
performance records in his current job were relevant and was
unwilling to provide them voluntarily
[26]
The arbitrator properly advised what needed
to be done procedurally, given that the parties were at an impasse on
the disclosure
issue His direction to bring an application was not
the same as admitting the documents, he was merely advising on the
procedure
to be followed, which would lead to finality on whether
Adams should disclose the documents. The reason the performance
record
documents came up was because the employer had obtained
another CV of Adams which it claimed was different from the one he
submitted
to the DWS and it argued that the performance agreements
could reveal which CV truly reflected the work he claimed to do at
DTIC.
On the face of it, an agreement describing performance
objectives he was expected to achieve, might clarify what he was
expected
to do and might support or undermine what he had written in
his CV. On the other hand, I can appreciate that Adams might have had
good reason to believe those documents had no relevance to the
shortlisting decision.
[27]
It is less obvious what use his actual
performance assessments would have been in determining his duties. In
any event, the appropriate
process for deciding whether they should
be admitted was for the arbitrator to rule on a disclosure
application brought by the
party wanting the documents, in this case
the employer. In any event, advising on the only procedural way
of resolving the
impasse is not an indication of bias.
[28]
Admitting irrelevant and prejudicial
documentation: Adams complained that the arbitrator permitted the
employer to introduce a different
CV from another unrelated dispute
(involving the Department of Higher Education and Training), creating
prejudice and prompting
bad-faith accusations of dishonesty.
[29]
Adverse rulings: Adams claimed the
arbitrator coerced him into abandoning lines of argument and
evidence, namely -
29.1
excluding his "probability chart"
illustrating the statistical improbability of two internal candidates
taking both nominated
spots;
29.2
disallowing arguments and references under
the Employment Equity Act regarding suitability criteria and
demographic and scoring
calculation errors in the employer's tables;
29.3
treating supporting documents (such as a
referee letter confirming his water and sanitation work and academic
prospectus materials)
as inadmissible hearsay or requiring expert
witnesses.
The employer’s
response
[30]
The employer denied that its representatives were unruly or abusive,
submitting that they were exercising their legitimate
right to probe
Adams’ claims, challenge the veracity of his qualifications and
experience, and test the discrepancies between
two contradictory CVs.
[31]
All prior
ex tempore
and procedural rulings during the
proceedings had been made in Adams' favour, disproving any systematic
bias.
[32]
The employer argues that the only reason that Adams brought the
recusal application was to head off an anticipated ruling
against
him, which would have required him to produce his performance
records.
Evaluation
Arbitrator’s
rulings on evidence
[33]
Having regard to all the rulings the arbitrator made on admissible
evidence or on permissible submissions made in argument,
I am
satisfied that these are matters, which if they turn out to have a
material impact on the final award, are issues that can
and should be
dealt with by reviewing the final award. They are not the kind of
rulings which a court should hear on review when
the arbitration
proceeding is incomplete.
[34]
If one has regard to his recusal application, these issues account
for the bulk his grounds.
Arbitrator’s
conduct of the arbitration hearing.
[35]
I accept that things came to a head when the arbitrator advised the
DWS representatives to bring an application to compel
disclosure of
Adams’s performance agreements and assessments.
[36]
Nevertheless, his concerns began on the first day of the arbitration
when the arbitrator was asking questions of Adams
to clarify the
nature of his case. He complained of the unruly behavior of the two
advocates representing the DWS, Messrs Holby
and Sibisi, and the
arbitrator’s failure to control them interrupting him. He
complained that this continued on the second
day when he was giving
his evidence in chief.
[37]
It appears that Holby was an employee of the DWS and Sibisi was the
appointed legal representative. However, both interjected
during
Adam’s explanation of his case and when he was giving his
evidence in chief, as if they were sharing the role of the
legal
representative. One of the complaints which Adams raised in his
recusal application was that the arbitrator had effectively
allowed
the DWS to have two legal representatives at the hearing instead of
one as the bargaining council provided for.
[38]
An examination of the transcript reveals a pattern of persistent
interruption of Adams both when he was trying to explain
the nature
of his complaint to the arbitrator and when he gave his evidence in
chief. What is noteworthy is that the interjections
were mostly
simply put directly to Adams while he was speaking, without raising
the issue with the arbitrator. The arbitrator occasionally
cautioned
the pair to wait until Adams was cross-examined but it was far too
seldom and a sterner response in the form of a firm
rebuke was called
for.
[39]
Why he let both Sibisi and Holby speak during the hearing, let alone
allowing them to interject during Adams’s
presentation and
evidence in chief in the way they did, is a mystery.
[40]
Under the guise of seeking clarification during Adams’s
presentation about the nature of his case he was interrupted
by one
or the other of the pair over twenty times. During his evidence in
chief, he was also interrupted by their interjections
approximately
thirty times. This was on the first day only. There was no transcript
available of the second day.
[41]
Some examples of the interruptions Adams was subject to were:
41.1
Rather than noting the point for cross-examination, Holby flatly
contradicted Adams while
he was explaining his credentials:
MR ADAMS: "Remember
I am a Structural Engineer. I have taught... [intervenes]"
MR HOLBY: "You an
HRD Expert... That is what you are... You did an internship in, in
for three years. That does not necessarily
make you... [intervenes]"
41.2
When Adams brought up NQF ratings, Holby again interposed:
MR ADAMS: "And it
is before and it is before 1990... [intervenes]"
MR HOLBY: "Yes,
it is still a NQF6 by the way."
MR ADAMS: "Ja."
MR HOLBY:
"It has not changed even after 1996."
41.3
Likewise, when Adams was talking about a
candidate’s qualifications, Holby butted in directly, as if
they were in a discussion,
not a proper adversarial process:
‘
MR ADAMS:
"Remembering we still need to confirm whether, whether Ms Ayesha
was in fact at the time an internal candidate,
the Indian lady."
MR HOLBY:
"Not at the time, but she had been an internal... [intervenes]"
41.4
Sibisi routinely stopped Adams's presentation to raise formal
evidentiary hurdles regarding
the origins of documents, even though
Adams was not even giving evidence at the time. For example -
41.4.1 Sibisi
interrupted Adams when he was trying to refer to university
prospectus material:
‘
Wait a bit. If
I may just come in here, Chair. Do you know who the author of this
document is? ... How authentic is this? ... Chair,
I really have a
problem with this, the authenticity of this document.’
41.4.2 Likewise,
when Adams cited an academic article, Sibisi interjected:
‘
If I may just
establish something... And you want to lead evidence on that is, it
will amount to hearsay evidence... The author,
is he going to come
testify?’
41.5
Holby repeatedly interrupted Adams’s answers regarding the
directorships he held
at DTIC.
41.6
When Adams was giving his understanding of the Job Evaluation
and Equate System Holby
interrupted him more than once to argue that
Adams was attacking the DPSA Equate system and job profiling rather
than the shortlisting
decision.
41.7
The arbitrator merely cautioned Holby and Sibisi to stop or leave
their point for cross-examination
on seven occasions, whereas the
interruptions were far more frequent and they paid no heed to the
arbitrator’s cautionary
words. Adams asked the arbitrator, from
time to time to curb the barrage of interjections. Other examples of
the interruptions
by Holby and Sibisi are mentioned below.
41.8
Adams protested that the representatives were being allowed excessive
leeway:
‘
MR ADAMS:
I'm sitting up here against three legal people
and they are having a
field day. I'm just an employee.
COMMISSIONER:
Ja but... [intervention]
MR ADAMS:
Who identified some issues that ...[intervention] COMMISSIONER:
Sir my role is not to defend you or them. I'm required to give
guidance to lay people yes.’
41.9
Shortly thereafter, following an intervention by Mr Holby, the
Commissioner explained his
approach:
‘
COMMISSIONER:
It is an adversarial one, and they going to, they must, if you want
to call it have a field day,
they are doing their job. They must do
it with proper respect and dignity and decorum but ultimately, they
want to win.’
41.10 While
the arbitrator had chosen to run the arbitration in an adversarial
form, which he was entitled to do, he
failed to appreciate that he
was not being fair to Adams, by not stopping the constant
interruption of his presentation and testimony.
He did not make Holby
and Sibisi conduct themselves in an orderly and professional manner,
but allowed Adams to be engaged in debate
and subjected to criticism
while he was trying to explain his case and lead his evidence.
41.11 Right
after Adams detailed the calculation errors in the Employment Equity
calculations, Holby intervenes and
launches into a misconceived
attack on the evidence Adams was trying to present, until the
commissioner eventually explains that
Holby misunderstood what Adams
was saying:
‘
MR
ADAMS:
44%, yes. 44% and so, now, Commissioner, with,
with that little bit
of examples that I am just showing you there, you can test the, the
rest of the yellow and it is all, it is,
it is, it is all, it is all
mistakes. I can go through each one, but I just showed you, showed
you, showed you the grave mistakes.
They have added up all these
percentages as if you can just add up percentages across both levels.
You cannot. It is the percentage
of the subtotal over there and so,
the proper figure is or the proper figures are, are on this table and
it is highlighted in yellow
and so, I am just saying the scoring was
to be generous clumsy and the Employment Equity stats that is
supposed to inform decision
making regarding who you want to take was
also clumsily full of errors and therefore misguided or were
unreliable forms of, of,
of information for whether it is the DG to
take his decision on who he must and, and I am hoping that all the
evidence that, that
I give, if it gets looked at together that you
can see this whole process as a question mark of ... [indistinct]
COMMISSIONER:
A question of —?
MR ADAMS:
I am just saying, as a question mark.
COMMISSIONER:
Oh.
MR
ADAMS:
In my — I am, I am alleging.
MR HOLBY:
Chair, Mr Chair, with all due respect
and this is very dangerous
territory we are traversing. The Head of HR who endorses this process
is a White male. The person who
approved this process, the DG, is a
White male. This is suggesting that they are racist and this is
something that should be dealt
with in the Equity Court, because you
are, what are you are suggesting and implying is that these people
prejudiced you because
of your race
.
MR ADAMS:
No.
MR HOLBY:
Well...
[intervenes]
MR ADAMS:
[Indistinct]
MR HOLBY:
It is just a coincidence that both
happened to be White...
[intervenes]
MR ADAMS:
I answered the question.
MR HOLBY:
And they both happen to be White
males and the suggestions and the
... [intervenes]
MR ADAMS:
I do not even know that.
MR HOLBY:
What you are suggesting is —
yes, you did not know that. You
made an assumption that perhaps maybe they also Black males like the
whole Panel was.
MR ADAMS:
That person was not appointed.
MR HOLBY:
Because you mentioned that earlier
on. Now, we, we caution you not to
go down this, this road and what you are suggesting is that the two
White people who made this
determination did not study this thing
correctly, did not see it as inaccurate and such the process was
flawed.
MR
ADAMS:
Did I say that?
MR
HOLBY:
That is what you are implying.
MR ADAMS:
No, you cannot, you cannot imply. If you
do not want me to speculate,
you cannot imply
MR HOLBY:
No, but you have been — that
is what I am saying. You can read
the names, Dr Sean Phillips. It is a White perso
n.
MR ADAMS:
No, this, this is ... [indistinct]
MR HOLBY:
And it is, it is come, it is coming
through Mr Conrad Grebe, who is a
German guy. Now, what are you implying by suggesting the Employment
Equity was not considered
in this process, because you are saying the
information that they relied on was incorrect
.
MR ADAMS:
Mr Holby... [intervenes]
MR HOLBY:
What implication can we draw from
this
?
MR ADAMS:
Mister — no, no, no. Do not draw
implications. Listen to what I
say rather. I am saying, that this as an instrument alongside the
scoring of criteria for sure this
as an instrument, I am saying,
these two things are indications that the process to some degree was
fraud.
COMMISSIONER:
It was done in a slapdash haphazard way. That is the unfairness he is
— not talking
about. Not the implications of discrimination or
any of the sort. He is saying... [intervenes]
MR
HOLBY:
Ja, because the, the person
who prepared it happened to be a White
German guy
.
COMMISSIONER:
Okay, but that is not his argument.
MR HOLBY:
Okay.
COMMISSIONER:
His argument is saying — let us call it — these
incompetences whoever perpetrated
the, the errors is an indication of
how slapdash this entire requirement process was done.
MR HOLBY:
Okay. I understand what you are saying
now.
COMMISSIONER:
Ja.
MR HOLBY:
But my concern is it is — if
you know who these people are and
the coincidence that they happen to be both White males it is very
dangerous
.
MR ADAMS:
No, for them maybe not for me as I am not
alleging that.
COMMISSIONER:
Okay.
MR HOLBY:
Okay
.’
[42]
Although the commissioner eventually persuaded Holby he misunderstood
what Adams was saying, he did not stop Holby from
embarking on his
critique, which was not even a formal objection to Adams’s
testimony. Holby’s challenge, misconceived
though it was,
should have been raised in cross-examination but he was allowed to
engage Adam’s in a debate about his evidence
while Adams was
trying to give his evidence-in-chief.
[43]
Considering the above, it must be said that the arbitrator did not
exercise sufficient control over Holby and Sibisi.
This would
naturally lead a reasonable litigant to believe that the arbitrator
was allowing a lopsided form of a hearing to take
place, in which his
legally qualified opponents were permitted to constantly interject
during his presentation and evidence, raising
issues which should
have been raised in cross-examination, not by way of interrupting his
outline of his case and evidence-in-chief.
The arbitrator’s
indulgence of this irregular conduct, in my view is enough reason to
believe that Adams will not receive
a fair hearing, even if his
application for recusal was also triggered by the prospect of an
adverse ruling on the disclosure of
his performance records. There is
no point in allowing the enquiry to run its course before the present
arbitrator. As there is
no record of the second day’s evidence,
the most practical solution would probably require Adams to lead the
missing portion
of his evidence again. In effect it means the
arbitration is not at an advanced stage which is also a factor in
favour of starting
afresh before another arbitrator.
Order
1.
The recusal ruling of the Second Respondent on 19 June 2023
under case number GPBC 937/2022 is reviewed and set aside.
2.
The said ruling is substituted with a ruling that the
application for recusal is granted, and the Second Respondent is
recused from
presiding over the dispute.
3.
The matter is remitted back to the First Respondent, for
enrolment for a hearing
de novo
before an arbitrator other
than the Second Respondent, within 30 calendar days of receipt of
this order.
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 Third Respondent:
M Dyalivane
of the Office of the
State Attorney (Cape Town)
[1]
GPSSBC Resolution 4 of 2004.
[2]
(2000) 21
ILJ
330
(LAC) at paragraph 4.
[3]
Public
Protector of South Africa v Chairperson: Section 194(1) Committee
and Others [
2023]
2 All SA 818
(WCC) (13 April 2023)