In a case decided in the Constitutional Court in August 2023, LabourNet Litigation and Snyman Attorneys were able to successfully litigate on behalf of its client, Rand Refinery.
The case concerned the setting aside of an arbitration award on review at the Labour Court. The award was against a former Rand Refinery employee, Mr Wanda Maseko, who had been dismissed on charges of theft of gold bars. The award was set aside on the grounds that it had been improperly obtained.
The matter turned on the fact that Mr Phumudzo Sydney Mulafhi, at the time employed as the company’s security investigations manager, and a key witness in the case against Maseko, claimed in proceedings before the High Court against Rand Refinery that he had been forced to give false evidence against Rand Refinery’s employees in disciplinary matters, including Maseko. He also alleged various other improprieties in Rand Refinery’s disciplinary processes. It was this evidence adduced by Mulafhi that Maseko wished to rely on in averring that the arbitration award had been improperly obtained. He applied to introduce into the review application all papers filed in the Hight Court in Mulafhi’s case in terms of Rule 11, which Rand Refinery opposed. In its opposing affidavit, Rand refinery also addressed the allegations made in Mulafhi’s affidavits to the High Court.
The Labour Court granted Maseko’s request, reviewed and set aside the arbitration award, and remitted the case to the CCMA to be heard afresh. The court criticised Rand Refinery for failing to file answering papers in response to Maseko and Mulafhi’s claims with its notice of opposition. The judge held that the Court could not turn a blind eye to Mulafhi’s assertions and concluded that the award stood to be set aside as it had been improperly obtained, as the arbitration proceedings were tainted by the perjured evidence of Mr Mulafhi.
Rand Refinery had, however, properly filed opposing affidavits before the Labour Court hearing had taken place and responded to Mulafhi’s claims. By some fluke, the Judge had overlooked the answering papers submitted by Rand Refinery. The Constitutional Court also found that the Labour Court had applied the wrong test in overturning the CCMA award. Mulafhi’s allegations as contained in the affidavits were hearsay which could not be relied upon. The Labour Court also disregarded Rand Refinery’s response to the Mulafhi matter in the High Court, and it could not rely only on one side of the matter. The Labour Court also hadn’t made a finding on whether Mulafhi had perjured himself in Maseko’s matter, and merely held that it was a possibility to be investigated in a fresh arbitration hearing. This was not a sufficient basis on which to overturn the arbitration award in terms of section 145(2)(b) of the Labour Relations Act.
The Labour Court’s judgement was set aside on appeal and the case was remitted to the Labour Court to determine the review application with reference to all admissible evidence.
