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Xenophobia at the CCMA

The recent Labour Court judgment in Simba v Mothoka’s Trading and Others suggests that xenophobia is alive and well, even in the halls of justice.

The commissioner who heard this labour dispute at the outset displayed a xenophobic attitude towards the applicant, a Zimbabwean national who had been employed in South Africa and who brought a claim of unfair dismissal against his employer. Fortunately for the applicant, the proceedings were recorded (as is usually the case at arbitrations of labour disputes) and the recorded evidence persuaded the Labour Court to come to his aid.

The applicant, Mr Simba, was a boiler-maker by trade. The respondent employer hired him for a two month period, and then another consecutive two month period, after which his services were refused. The employer alleged that two fixed term contracts had run their course, and the employment relationship had ended automatically. Mr Simba alleged that he was unfairly dismissed.

The commissioner found against him, and Mr Simba took the matter on review to the Labour Court. The Labour Court expressed its displeasure with the commissioner’s handling of proceedings. The record showed that the commissioner repeatedly interrupted Mr Simba’s evidence, denying him a fair hearing. He also gave Mr Simba incorrect legal advice during proceedings. He threatened Mr Simba with contempt proceedings when there was no basis to do so. He cross-examined Mr Simba throughout his evidence , badgering him repeatedly, to the extent that the employer (no doubt highly satisfied with how matters were unfolding) elected not to even offer any evidence in its defence.

In his ruling against Mr Simba, the commissioner engaged in personal and xenophobic attacks upon him, referring to him as an “arrogant” and audacious “foreign national”, and complaining that the South African taxpayer bore the costs of the arbitration proceedings (as is usually the case).

The applicant’s review application succeeded, and he was afforded the opportunity to make his case before a different commissioner.

One has to wonder what, if any, consequences there shall be for the commissioner who engaged in this unacceptable conduct.