NEHAWU obo Kerr Hoho v CCMA and Others

Mr Kerr Hoho was employed by the Secretary of the Eastern Cape Legislature as a researcher. In October 2011, he was charged with misconduct relating to disruptive behaviour towards colleagues and members of the Legislature, abusing email communications, and bringing the Legislature into disrepute. He was found guilty at a disciplinary enquiry and dismissed. Hoho referred an unfair dismissal dispute to the CCMA, which was heard by Commissioner Mzama Mama. Commissioner Mama upheld the finding of guilt and dismissed Hoho. Hoho then took Commissioner Mama's award on review before Van Niekerk J. Van Niekerk J did not disturb the finding of guilt but set aside the entire award on the basis that the commissioner had applied the wrong test in determining sanction. The matter was remitted to Commissioner Mama to determine a fair sanction using the correct test (Sidumo test) based on the existing record. When the matter returned to the CCMA, Commissioner Mama had resigned and was no longer contracted to the CCMA. The parties consented to the matter being heard by Commissioner Van Zydam instead. Commissioner Van Zydam heard fresh evidence on sanction and upheld the dismissal. This decision was reviewed before Mahosi AJ, who dismissed the review. Hoho appealed to the Labour Appeal Court.

• Whether it was competent for a commissioner other than the one named in the court order to hear the remitted matter
• Whether the mere consent of parties was sufficient to legitimise the substitution of a different presiding officer
• Whether it was permissible to lead fresh evidence on sanction when the order contemplated determination based on the existing record
• Whether the resumed hearing before Commissioner Van Zydam complied with the order of Van Niekerk J

The appeal was upheld. The order of the Labour Court was set aside. The award of Commissioner Van Zydam was set aside. The order made by Van Niekerk J was reinstated. The parties were directed to comply with Van Niekerk J's order within 90 days, with the CCMA to make special arrangements to expedite a hearing. The parties were permitted to address argument on sanction with reference to the record of proceedings before Commissioner Mama. In the event compliance could not be achieved, an application to Van Niekerk J to vary the order was to be made within 60 days. There was no order as to costs.

When a court order remits a matter to a specific commissioner for determination on the basis of an existing record, the mere consent of parties is insufficient to legitimise the substitution of a different presiding officer. The terms of such an order can only be varied by a proper application setting out sound reasons why the initial order cannot be complied with. Where an order contemplates determination based on an existing record and does not encompass the hearing of further evidence, the taking of fresh evidence is inconsistent with and not in compliance with the order. Proceedings conducted in a manner irreconcilable with a court order are not legally valid and are susceptible to review.

The Court noted that it might be an open question whether further argument (as opposed to further evidence) might be heard on the record in a remitted matter, which would generically be of assistance in the resumed decision-making process. The Court also noted that it was not obvious that Commissioner Mama did not remain seized of the matter despite his resignation, but stated there was no need to consider that point. The Court observed that the blunders in the case seemed to have been perpetrated in concert by all parties, which influenced the decision to make no order as to costs. The Court also commented that while there was no reason to doubt the veracity or bona fides of those involved in the decision to switch commissioners, the explanation was nonetheless inadequate to justify the switch.

This case is significant in South African labour law as it establishes important principles regarding compliance with court orders in remitted matters. It clarifies that parties cannot, by mere consent, substitute a different presiding officer when a court order specifically directs a matter to be heard by a particular commissioner. The case emphasizes the importance of adhering to the terms of court orders and the proper procedure for varying such orders when circumstances change. It also clarifies that when a matter is remitted for reconsideration of sanction based on an existing record, it is not permissible to conduct a fresh evidentiary hearing without proper variation of the original order. The judgment reinforces procedural propriety and the sanctity of court orders in the administrative justice system.