Ngaka Andrian Lesala v Metal and Engineering Industries Bargaining Council and Others

The applicant was dismissed on 20 December 2019 following a disciplinary hearing where he was found guilty of gross misconduct (falsely accusing a Senior Manager, Mr Nicky Louw, of racism) and gross insubordination. He referred an unfair dismissal dispute to the bargaining council. At arbitration, the third respondent (employer) led evidence from its sole witness, Mr Louw, who was also the complainant. On 28 April 2021, Mr Louw failed to attend the arbitration in person, having travelled to Namibia, and instead attempted to testify via Zoom. The virtual platform had very poor connectivity, rendering cross-examination by the applicant's representative ineffective. The parties agreed to proceed with the applicant's case while the Commissioner undertook to make a ruling on how Mr Louw's untested evidence would be handled. The Commissioner issued an award on 6 July 2021 finding the dismissal procedurally and substantively fair, but failed to make any ruling on the admissibility or weight to be given to Mr Louw's evidence or to mention the circumstances of 28 April 2021. The applicant, who was self-represented in the review, sought to review and set aside the arbitration award.

• Whether the Commissioner committed a gross irregularity by failing to make a ruling on the admissibility of the untested evidence of the employer's sole witness
• Whether the failure to properly cross-examine the sole witness who was also the complainant constituted an irregularity warranting review and setting aside of the award
• Whether the Commissioner failed to apply his mind to the evidentiary material before him
• Whether non-compliance with procedural rules (service in Word format, unsigned documents) should be condoned

The arbitration award dated 13 July 2021 under case number MEGA55824 was reviewed and set aside. The matter was remitted to the first respondent (the bargaining council) for a hearing de novo before a different commissioner. No order as to costs was made, primarily because the applicant was self-representing.

The disallowance or effective prevention of proper cross-examination of a sole witness who is also the complainant constitutes an irregularity entitling the affected party to relief from a higher court unless the court is satisfied that the irregularity did not prejudice the party. Where a commissioner undertakes to make a ruling on the admissibility or weight of untested evidence due to lack of cross-examination, and then fails to do so or even mention the circumstances in the award, this constitutes a gross irregularity that renders the award reviewable and liable to be set aside. The proper remedy in such circumstances is to remit the matter for arbitration de novo before a different commissioner.

The Court deliberately did not articulate all reasons for making no order as to costs, but indicated that the dominant factor was that the applicant was self-representing. This suggests sympathy for unrepresented litigants in labour matters and a recognition that costs orders against them may be inappropriate in many circumstances. The Court also indicated it would condone procedural non-compliance (service in Word format via email, unsigned documents) where the applicant is self-representing and no prejudice results, emphasizing substance over form in such cases.

This case affirms the fundamental importance of the right to cross-examine witnesses in arbitration proceedings, particularly when the witness is the sole witness and the complainant. It establishes that a failure to effectively cross-examine a key witness, coupled with a commissioner's failure to address how such untested evidence is weighed, constitutes a gross irregularity warranting review and remittal. The case also demonstrates the Labour Court's willingness to condone procedural non-compliance where an applicant is self-representing and no prejudice results. It reinforces that commissioners must fulfill undertakings made during proceedings and must transparently address evidential irregularities in their awards.