Nehawu obo Kgekwane v Department of Development Planning and Local Government (JA 68/13) [2015] ZALAC 5; (2015) 36 ILJ 1247 (LAC); [2015] 6 BLLR 575 (LAC) (15 January 2015)

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[2015] ZALAC 5
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Nehawu obo Kgekwane v Department of Development Planning and Local Government (JA 68/13) [2015] ZALAC 5; (2015) 36 ILJ 1247 (LAC); [2015] 6 BLLR 575 (LAC) (15 January 2015)

REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA 68/13
DATE: 15 JANUARY
2015
REPORTABLE
In the matter
between:
NEHAWU OBO
KGEKWANE
.......................................................................
Appellant
And
THE DEPARTMENT OF
DEVELOPMENT PLANNING
AND LOCAL
GOVERNMENT,
GAUTENG
.............................................
Respondent
Heard: 19
November 2014
Delivered: 15
January 2015
Summary:
Review of arbitration award – termination of services by
operation of law in terms of section
17(5)(a)(i)
of the PSA – employee services terminated
by operation of law – employee referring unfair dismissal
dispute to the CCMA
– employee later referred same dispute to
bargaining council with jurisdiction- bargaining council ruling that
it lacks jurisdiction
–  employee not reviewing
jurisdictional ruling - employee requesting arbitration at the CCMA –
employer contending
jurisdiction of the CCMA and that matter already
dealt with by the bargaining council – commissioner finding
that CCMA not
bound by bargaining council ruling and reinstating
employee. Labour Court substituting arbitration award with
compensation. Appeal
and cross-appeal – issue of jurisdiction
dispositive of the appeal – application of section 147(2)(3) of
the LRA- once
employee referred the dispute to the bargaining
council, referral to CCMA lapses -
employee
may not refer the same dispute to the CCMA and ask the CCMA to
exercise its powers under s 147(2) or (3) of the LRA. Hearing
to the
CCMA an affront to the rule against collateral challenges and is
estopped by the
exceptio res
judicata
. Cross-appeal upheld –
Labour Court judgment set aside and substituted with the order that
the arbitration award is reviewed
and set aside.
CORAM: MUSI JA,
MURPHY
ET
SETILOANE AJJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
This judgment concerns both an appeal,
[1]
and a cross-appeal against the judgment and order of the Labour Court
(Bhoola J) dated 25 March 2013 in which, it: (a) upheld the

arbitration award of the Commissioner made under the auspices of the
Commission for Conciliation, Mediation and Arbitration (“the

CCMA”) on the merits; (b) reviewed and set aside the relief
awarded by it; and (c) substituted it with the following order:
‘
The
applicant is ordered to pay the third respondent the sum of R152
861.92, which is an amount equivalent to her salary of R9553.87
for a
period of 16 months as compensation for her unfair dismissal.
Each party is to pay
its own costs.’
[2]
On 30 August 2001, the respondent provided the appellant with a
letter in which it informed her that she had been discharged
pursuant
to s 17(5)(a)(i)
[2]
of the
Public Service Act, 103 of 1994 (“the PSA”) with effect
from 19 June 2001. Section 17(5)(a)(i) of the PSA provided
that an
officer in the public service who without the permission of the Head
of Department absents herself from official duties
for a period
exceeding one calendar month “shall be deemed to have been
discharged” from the service on account of
the misconduct. The
letter spawned a host of litigation before various tribunals and
courts of which the present appeal is the
latest chapter.
[3] On 31 August
2001, the appellant referred an unfair dismissal dispute to the CCMA.
The matter was set down for conciliation
on 26 September 2001, and a
certificate of non- resolution was issued. Thereafter, on 27
September 2001, the appellant referred
the dispute to arbitration at
the CCMA. The arbitration hearing was scheduled for 30 January 2002,
but did not proceed. Instead,
on 13 October 2001, the appellant
referred a second unfair dismissal dispute (arising from the same
facts) to the General Public
Service Sectoral Bargaining Council
(“the GPSSBC”) for conciliation. It was common cause at
this stage that the GPSSBC
(and not the CCMA) had jurisdiction over
the parties. It was, therefore, agreed between the appellant (who was
at that stage represented
by NEHAWU) and the respondent that she
would withdraw the referral to the CCMA and proceed with the matter
at the GPSSBC. As things
turned out, however, the matter was never
withdrawn at the CCMA.
[4] The matter then
proceeded to the GPSSBC. At the conciliation hearing before the
GPSSBC, the respondent argued that the bargaining
council had no
jurisdiction to resolve the dispute because the appellant had not
been dismissed as a result of any decision, taken
by the employer, as
contemplated in s 186 of the Labour Relations Act, 66 of 1995 (“the
LRA”) but that she was dismissed
by operation of law as
contemplated in terms of s 17(5)(a)(i) of the PSA. Ms Skosana, the
arbitrator appointed by the GPSSBC to
deal with the matter, upheld
the respondent’s argument and, on 15 April 2002, ruled that
because the appellant had been dismissed
pursuant to s 17(5)(c) of
the PSA, the bargaining council did not have jurisdiction over the
dispute, and the appellant could pursue
the matter in terms of s
17(5)(b) of the PSA. Section 17(5)(b) of the PSA empowers the
relevant executing authority (who in this
case was the MEC) “on
good cause shown” to approve the reinstatement of an employee,
who has been deemed to be dismissed
in terms of s 17(5)(a) thereof,
in his or her former or any other post or position.
[5] Ms Skosana’s
ruling was never taken on review to the Labour Court. Instead, and
after a delay of almost two years, the
appellant applied to the MEC
for Development Planning and Local Government for reinstatement in
terms of s 17(5)(b) of the PSA.
The hearing was held on 19 February
2004, and on 24 February 2004 the MEC found that the appellant had
not shown good cause and
refused to reinstate her pursuant to s
17(5)(a) of the PSA.
[6] On 21 March
2004, the appellant, aggrieved by the outcome of that process,
instituted proceedings in the Labour Court under
case number J432/04
in which she sought to review and set aside the decision of the MEC
“in the exercise of his discretion
in terms of section
17(5)(a)(i) of the Public Service Act No. 103 of 1994” and also
his decision to refuse reinstatement
under s 17(5)(b) of the PSA. A
full set of papers was exchanged in that matter, but instead of
proceeding to have the matter determined,
the respondent withdrew the
application, terminated the mandate of her then attorneys (Peers
Attorneys), appointed new attorneys
(John Broido Attorneys) and
decided to follow a different route. In October 2004, the appellant,
now represented by John Broido
Attorneys, applied to have the matter
set down for arbitration at the CCMA.
[7] On 21 October
2004, the parties held a pre-arbitration conference and prepared a
minute. It was agreed that the respondent would
in limine
challenge the jurisdiction of the CCMA to consider the matter
inter
alia
because: (a) the matter had been referred to the CCMA but
was, by agreement, removed and referred to the GPSSBC which ruled
that
the appellant was dismissed by operation of the law; (b) the
GPSSBC and not the CCMA had jurisdiction as the parties fell within

the registered scope of the GPSSBC; and (c) the CCMA had no power to
determine whether the appellant had in fact been dismissed
by
operation of the law. At the arbitration proceedings, the respondent
raised a further
in limine
point, namely that the appellant
was required to apply for condonation for the delay in applying for
the dispute before the CCMA
to be set down for hearing, which it had
not done.
[8] On 9 November
2004, the Commissioner made a ruling on the first
in limine
jurisdictional point. He ruled that:
‘
It
is my opinion that I am not bound by the ruling of the panellist from
the GPSSBC. The dispute before me had never been adjudicated
upon by
any forum save for the ruling by the GPSSBC that it lacks
jurisdiction.’
On
the second point
in limine
,
the Commissioner ruled that whether the appellant had been dismissed
unfairly in terms of s 186 of the LRA  or by operation
of the
law for absenting herself for duty as contemplated in s 17(5)(a) of
the PSA:
‘
[Is]
a question of law that can only be reached after all the evidence has
been led and the trier of fact can determine on a balance
of
probability what really transpired regarding the dismissal or
termination of the services of the applicant. This cannot be
determined on papers as a point
in
limine
.’
In
relation to the question of condonation, the Commissioner found that
“the allocation of a date for hearing of an arbitration
lies
with the CCMA and if the CCMA delays in allocating a date, the
applicant cannot and should not be liable”.
[9] Having decided
that the CCMA had jurisdiction, and that he was not bound by the
ruling of the GPSSBC, the Commissioner proceeded
to hear testimony
and argument, and made an award
inter alia
reinstating the
appellant to her former position on terms and conditions no less
favourable than those which she had previously
enjoyed, and ordering
the respondent to pay the appellant an amount of R439 478.02
being the equivalent of 46 months’
remuneration. The
Commissioner’s reasons for making this award are as follows:
‘
In
the circumstances I find that the respondent has not discharged the
onus of proving that applicant was dismissed from her employment
by
operation of law in terms of section 17(5)(a) of the Public Service
Act and find that the respondent had no basis in law for
dismissing
the applicant and consequently the applicant’s dismissal was
both procedurally and substantively unfair.’
[10]
Dissatisfied with the arbitration award, the respondent brought an
application to review and set aside both the jurisdictional
ruling
and the arbitration award. The respondent challenged the arbitration
award on the following basis: (a) A crucial aspect
of the
Commissioner’s findings was based upon the respondent having
withheld certain documents from the CCMA when that possibility
was
never suggested to the respondent’s witnesses; (b) The
Commissioner had found that the appellant’s reliance upon
s
17(5)(a) of the PSA was a ruse to cover up the true reasons for the
respondent’s dismissal, but the Commissioner had himself

prevented the appellant (who raised this possibility) from leading
any further evidence to prove the ruse. In so doing , he had

prevented this issue from being ventilated; (c) The Commissioner had
awarded the appellant 46 months’ back-pay calculated
from the
date on which her services were terminated without taking into
account the fact that there was a delay of approximately
two and half
years between the date when the dispute was initially referred to the
CCMA and the date when the appellant applied
for the matter to be
arbitrated; (d) The Commissioner had misconducted himself by
descending into the arena and had so clouded
his judgment, and had
also demonstrated bias or the appearance of bias. In relation to this
aspect the respondent sought costs
against the Commissioner
de
bonis propriis
.
The respondent challenged the jurisdictional ruling on the following
basis: (a) The dispute fell within the jurisdiction of the
GPSSBC and
not within the jurisdiction of the CCMA and accordingly the CCMA
lacked jurisdiction to determine the dispute; (b) The
GPSSBC had in
any event, already determined the dispute; (c) The appellant had
removed the matter which was before the CCMA and
had transferred it
to the GPSSBC and was not entitled to return the matter to the CCMA
thereafter; and (d) In any event, the appellant
was obliged to apply
for condonation before she could “return” the matter to
the CCMA. The respondent in accordance
with the principle in the
SA
Rugby Players Association
[3]
case
also sought an order declaring that the CCMA did not have
jurisdiction over the matter.
[11] The Labour
Court did not consider the jurisdictional issue. In rejecting the
respondent’s reliance upon the jurisdictional
ground of review,
the Labour Court found that the respondent “elected” not
to pursue it “at the time”.
With regard to the argument
that the Commissioner misconducted himself, the Labour Court held
that “although it would appear
that the Commissioner might have
overstepped the bounds”, the respondent’s argument could
not “be sustained”
and that there was “no merit in
the submissions”. It reasoned that:
‘
[T]here
was no indication that [the respondent] had raised [these] concerns
at the time with the commissioner or placed [such] concerns
that this
overly inquisitorial approach constituted a reviewable irregularity’
The Labour Court
went on to explain that despite some of the interventions of the
Commissioner being “inappropriate”,
it did not “in
itself constitute sufficient grounds for review”.
[12] In regard to
the award of compensation, which the Commissioner made without having
regard to the appellant’s delay in
referring the matter to
arbitration, the Labour Court found that the reasoning of the
Commissioner was not supported by the evidence
which had been placed
before the Commissioner. The Labour Court held, however, that “no
point would be served by remitting
the matter for the Commissioner to
consider whether condonation for the delay of more than two years
should be granted”.
The Labour Court found, in this regard,
that the delay was so inordinate that “it must have been
apparent that reinstatement
in these circumstances (at that stage
eight years after the dismissal) was an inappropriate remedy not only
given the public finance
implications”. That being the case,
the Labour Court set aside the Commissioner’s award for the
reinstatement of the
appellant and payment of 46 month’s
compensation, and substituted it with an award of compensation
equivalent to 16 months
remuneration. The Labour Court also set aside
the costs order made in the appellant’s favour, and replaced it
with an order
that each party pays its own costs.
[13] The appellant
only appeals against the compensation and costs orders of the Labour
Court. The respondent, on the other hand,
cross-appeals, against the
failure of the Labour Court to deal with the jurisdictional ground of
review on the basis that the respondent
had elected not to pursue the
point, and its finding that the Commissioner did not misconduct
himself by demonstrating bias or
overstepping the bounds.
[14] I turn first to
consider the jurisdictional ground of appeal, because as conceded by
counsel for the appellant at the hearing
of the appeal, a finding in
the respondent’s favour will be dispositive of the issues on
appeal and cross-appeal. As indicated,
at the arbitration
proceedings, the respondent challenged the jurisdiction of the CCMA
on the basis that the CCMA had no power
to determine a dispute which
had been referred to the bargaining council having jurisdiction (the
GPSSBC), and had run its full
course before that tribunal.
[15]
It was common cause between the parties that the dispute fell within
the jurisdiction of the GPSSBC in terms of s 191 of the
LRA and the
appellant, on advice of the union, referred the dispute to the
GPSSBC. Section 191(1)(a) of the LRA provides that a
dispute about
the fairness of a dismissal, or a dispute about an unfair labour
practice may be referred by the dismissed employee,
or the employee
alleging the unfair labour practice, to a bargaining council if the
parties to the dispute fall within the registered
scope of the
council, or to the CCMA if no bargaining council has jurisdiction.
[4]
That said, the dispute concerning jurisdiction is not, as erroneously
assumed by both the appellant and the Labour Court, about
whether the
CCMA has jurisdiction to determine a dispute which falls within the
jurisdiction of the bargaining council, as the
weight of authority
suggests
[5]
that s 147(2) and
(3) of the LRA empowers the CCMA to exercise jurisdiction even where
a bargaining council in fact has jurisdiction.
This matter is,
rather, concerned with the question of whether the CCMA has
jurisdiction to determine a dispute where that very
dispute has
already been referred to a bargaining council having jurisdiction and
that dispute has already been finally determined
by that tribunal.
[16]
Section 147 of the LRA makes provision for the performance of dispute
resolution functions by the CCMA in exceptional circumstances,
in
order to avoid delays that might otherwise be caused by
jurisdictional disputes. Section 147 of the LRA, accordingly, confers

a choice on the CCMA whether to resolve a dispute that has been
erroneously referred to it or whether to re-direct it to the proper

forum
[6]
. Subsections (2) and
(3) of s 147 of the LRA, which are pertinent to the jurisdictional
question provide:
‘
(2)
(a) If at any stage after a
dispute
has been referred to the Commission, it becomes apparent that the
parties to the
dispute
are parties to a
council
,
the Commission may –
(i)
refer the
dispute
to the
council
for resolution; or
(ii)
appoint a commissioner or, if one has been
appointed, confirm the appointment of the commissioner, to resolve
the
dispute
in terms of
this Act
.
(b)...
(3) (a) If at any
stage after a
dispute
has been referred to the Commission, it
becomes apparent that the parties to the
dispute
fall within
the
registered scope of a council
and that one or more parties
to the
dispute
are not parties to the
council
, the
Commission may –
(i)
refer the
dispute
to the
council
for resolution; or
(ii) appoint a
commissioner or, if one has been appointed, confirm the appointment
of the commissioner, to resolve the
dispute
in terms of this
Act.
(b)…
.’
[17] In terms of s
147(2) and (3) of the LRA respectively, if at any stage after a
dispute has been referred to the CCMA, it becomes
apparent (or
evident) that the parties to the dispute are parties to a bargaining
council or that the parties to a dispute will
fall within the
registered scope of a bargaining council but one or more of the
parties are not parties to that council, the CCMA
may either refer
the dispute to that bargaining council for resolution or appoint a
commissioner, or if one has already been appointed,
confirm the
appointment of such commissioner to resolve the dispute.
[18]
Although the LRA does not set out guidelines that inform a referral
in terms of either s 147(2) and (3) of the LRA, our courts
have over
time developed principles that may be of some guidance. The first is
that forum shopping is looked upon with disdain.
Thus in the context
of referrals in terms of s 147(2) and (3) of the LRA, the incorrect
referral must be
bona
fide
and not an exercise in forum shopping for a “sympathetic or
preferred” forum.
[7]
The
second principle is that where a dispute is referred to the CCMA, the
matter may not proceed before the CCMA once it is discovered
that the
parties are parties to a bargaining council or fall within the
registered scope of a bargaining council, until the options
set out
in s 147(2) and (3) have been exercised by the CCMA.
[8]
The third principle is that once this is ascertained, it is then for
the CCMA or its delegate (and not the commissioner hearing
the matter
when this was ascertained) to determine whether to refer the matter
to the bargaining council or to appoint a commissioner
to determine
the dispute or if one has already been appointed, to confirm his or
her appointment.
[9]
[19]
The fourth principle is that where the CCMA elects to appoint a
commissioner to arbitrate the dispute or to confirm the appointment

of one who has already been appointed, the matter may then proceed as
the CCMA has jurisdiction to determine that dispute. However,
where
the CCMA elects to refer the matter to the bargaining council, it
ceases to have jurisdiction over the matter and the dispute
which is
before it therefore lapses. Thus in
Oosthuizen
v Can Mining and Engineering Supplies BJ,
[10]
which
concerned a situation in which the Labour Court had to consider an
in
limine
objection to its jurisdiction on the grounds that the same dispute
was before the CCMA, the Labour Court in finding that s 147
confers a
choice on the CCMA whether to resolve a dispute erroneously referred
to it or whether to re-direct it to the proper forum
reasoned as
follows:
‘
[20]
When the arbitration hearing was suspended, the applicant [the
employee] was confronted with two choices. He could either follow

what he (or his advisers) deemed to be the correct route − that
is, refer the dispute to the bargaining council − or
revert to
the CCMA and request that the suspended arbitration be resumed with.
He chose the former course, had he chosen the latter,
the CCMA would
have had to consider whether to refer the dispute to the council or
whether to appoint a commissioner, or confirm
the Commissioner Roopa,
to arbitrate. In my view the applicant cannot in the circumstances be
blamed for re-directing the referral
to what he (and his advisers)
had by then come to believe was the correct body. Nor in my view can
they be blamed for proceeding
with the application in this Court
after the bargaining council designated the dismissal as one for
operational requirements…
[21] In the final
analysis, the applicant has referred the dispute to this Court as he
would have been free to do if the CCMA had
considered the matter and
characterised his alleged dismissal as a retrenchment. The respondent
now wishes to hold the applicant
to arbitration by the CCMA, whether
by direct order of this Court, or by the revival of the dormant
arbitration proceedings, which
must be the inevitable consequence if
the application is dismissed on the basis of the respondent’s
present contention. Apart
from being wastefully circuitous, such a
result will not accord with one of the primary objectives of the Act,
namely the effective
and expeditious resolution of labour disputes.
In my view, the resolution that best accords with that objective is
to treat the
original referral for what it in reality is − an
erroneous referral to the CCMA which was never re-directed in terms
of section
147(3), and which must accordingly be deemed to have
lapsed when the applicant chose to re-direct the application to the
council
himself.’
[20]
The advantage to the employee of the CCMA referring the matter to the
bargaining council having jurisdiction is that there
is, in terms of
s 147(7)
[11]
of the LRA, no
need for the employee to apply for condonation should there be a
delay between the date of dismissal and the date
of referral. If the
employee chooses to refer the matter to the bargaining council
himself instead of awaiting the decision of
the CCMA, he would be
required to apply for condonation.
[12]
[21]
It must manifestly be the case therefore, that where an employee
refers a dispute to a bargaining council which does have
jurisdiction, he or she may not thereafter refer the same dispute to
the CCMA and ask the CCMA to exercise its powers under s 147(2)
or
(3) of the LRA. However, where an employee has referred a matter to
the CCMA in the
bona
fide
belief that it has jurisdiction and it is then discovered that a
bargaining council has jurisdiction over the matter, he or she
is
obliged to make an election: request the CCMA to exercise its powers
under s 147(2) or (3) of the LRA, or himself or herself
refer the
matter directly to the bargaining council.
[13]
If the employee requests the CCMA to exercise its powers under s
147(2) and (3) of the LRA, the CCMA may elect to either appoint
a
commissioner to determine the dispute or refer the matter to the
bargaining council having jurisdiction. But once the CCMA makes
its
election, the parties are bound by it (unless, perhaps the decision
was taken in a manner which itself gives rise to a reviewable

irregularity).
[22] If, on the
other hand, the employee elects to refer the matter to the bargaining
council having jurisdiction, that bargaining
council must then
determine the dispute, and the employee cannot thereafter elect to
revert to the CCMA. In the current matter,
the appellant referred the
dispute to the CCMA and, when conciliation failed, referred it to
arbitration. Thereafter, she realised
that the matter was erroneously
referred to the CCMA, as there existed a registered bargaining
council within whose jurisdiction
the dispute fell, namely the
GPSSBC, and with the assistance of her union referred the matter to
the GPSSBC. In my view, once she
made that election and referred the
dispute to the GPSSBA, the dispute which was before the CCMA lapsed,
and any powers which the
CCMA possessed under s 147 of the LRA
ceased. The CCMA thereafter had no jurisdiction to deal with the
matter. The ruling of the
Commissioner that he was not bound by the
GPSSBA ruling, and that the CCMA had jurisdiction to determine the
dispute was, therefore,
manifestly unfounded, and fell to be set
aside on review.
[23]
As indicated, the Labour Court refused to make a determination on the
question of whether the CCMA had jurisdiction to deal
with the
matter, on the basis that the respondent had elected not to pursue
this issue in the review proceedings before her. Quite
apart from the
fact that the respondent had not abandoned the challenge to the
CCMA’s jurisdiction in the review application,
[14]
the Labour Court was obliged
mero
motu
to enquire into the question of the CCMA’s jurisdiction even if
the point was not raised by the parties. Since the jurisdiction
of
the CCMA is intrinsic to the question of whether there was a
dismissal in terms of s 186 of the LRA, the Labour Court was required

to first determine whether, on the objective facts and the law, the
CCMA had jurisdiction to adjudicate the dispute.
[15]
The question of whether the CMMA’s has jurisdiction to
adjudicate a dispute is a matter of fact and law. Thus as observed
by
the Constitutional Court in
Tao
Ying Metal Industries and Others v CWU of SA
[16]
‘
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the
law is, a
court is not only entitled, but is in fact also obliged
mero
motu
, to raise the point of law and
require the parties to deal therewith. Otherwise, the result would be
a decision premised on an
incorrect application of the law. That
would infringe the principle of legality.’
The Labour Court
accordingly erred in failing to determine the question of whether the
CCMA had jurisdiction to deal with the dispute.
Its failure to do so
infringed upon the principle of legality.
[24] A further
reason why the CCMA had no power to entertain the unfair dismissal
dispute when the appellant set it down for arbitration
in October
2004, is that once the GPSSBC ruled that the appellant had been
dismissed by operation of the law in terms of s 17(5)(a)
of the PSA
and that there was, therefore, no dismissal in terms of s 186 of the
LRA, the rule against collateral challenges precluded
the CCMA from
considering the same dispute.
[25]
The House of Lords (per Lord Diplock) in
Hunter
v Constable of West Midlands and Another
[17]
explained the rule against “collateral challenges” in
these terms:
“
The
abuse of process which the instant case exemplifies is the initiation
of proceedings in a Court of justice for the purpose of
mounting a
collateral attack on a final decision against the intending plaintiff
which has been made by another court of competent
jurisdiction in
previous proceedings in which the intending plaintiff had a full
opportunity of contesting the decision in the
court by which it was
made.”
[18]
In
Gerland
v Consumers’ Gas Co,
[19]
the Supreme Court of Canada (per Iacobucci J) described the
‘fundamental policy’ against a collateral attack as being

to “maintain the rule of law and to preserve the repute of the
administration of justice”. “The idea is”,
said
Iacobucci J, that “if a party could avoid the consequences of
an order issued against it by going to another forum,
this could
undermine the integrity of the justice system”.
[20]
Similarly, in
Reichel
v Magrath,
[21]
Lord Halsbury described it as "a scandal to the administration
of justice if, the same question having been disposed of by
one case,
the litigant were to be permitted by changing the form of the
proceedings to set up the same case again”.
[26]
The rule against collateral challenges has been accepted in South
African law with one qualification: unless proceedings of
a coercive
nature have been brought against a party, he or she is not entitled
to launch a collateral challenge against an earlier
juridical act,
until the earlier act is itself set aside.
[22]
Allied to the rule against collateral challenges is the
exceptio
res judicata
,
which is available where another court (or tribunal) of competent
jurisdiction has already pronounced finally on the same issue
between
the same parties.
[23]
The
previous judgment must have been given by a competent court, the
matter must have involved the same parties (or their
successors-in-title)
and must have been based on the same cause of
action with respect to the same subject matter or thing.
[24]
These elements were all present in the dispute before the
Commissioner in this matter. Importantly, in this regard, the
exceptio
res judicata
is applicable also to arbitration awards whether obtained in private
arbitration proceedings or in proceedings under the LRA.
[25]
[27] In the current
matter, the appellant, instead of applying to review and set aside
the ruling made by the GPSSBC – a route
which would have
required her to apply for condonation for the delay in doing so −
sought to circumvent it altogether by
returning to the CCMA. This
step was irregular, first because the arbitration proceedings in the
CCMA had lapsed on referral to
the GPSSBC, and second because it is
an affront to the rule against collateral challenges and is, by any
measure, an abuse of process
because it is estopped by the
exceptio
res judicata
.
[28] The GPSSBC had
made a final ruling on the matter. It found that it did not have the
requisite jurisdiction to deal with the
dispute, because the
appellant was dismissed by the operation of law in terms of s
17(5)(a) of the PSA. The question of jurisdiction
of the GPSSBC in
this case was integrally linked to the question of whether the
appellant was dismissed in terms of s 186 of the
LRA or dismissed in
terms of s 17(5)(a) of the PSA. The enquiry into jurisdiction by the
GPSSBC was, thus, a factual one that had
to be determined on the
objective assessment of the evidence before the arbitrator.
[29] The finding of
the GPSSBC that it lacked jurisdiction to deal with matter, because
the appellant was dismissed by operation
of the law in terms of s
17(5)(a) of the PSA, is a finding with final effect until set aside
on review by the Labour Court. The
Commissioner’s finding that
the jurisdictional determination of the GPSSBC is interlocutory, as
it did not deal with the
merits is, therefore, simply wrong. In the
circumstances, I find that the CCMA had no jurisdiction to deal with
the matter. Accordingly,
the respondent’s cross-appeal must be
upheld.
[30] Having arrived
at this conclusion, there is no need to deal with the appellant’s
grounds of appeal and the remaining
grounds of the respondent’s
cross-appeal. This matter has regrettably taken 13 years to reach
this Court on appeal. As is
apparent from the chronology of events
that span the period from the initial referral of the dispute to the
CCMA, on 31 August
2001, to the date of hearing of the review
application before the Labour Court, on 25 March 2013, both the
appellant and the respondent
have been equally responsible for the
delays in finalisation of this dispute. Accordingly, I consider this
to be a matter in which
there should be no cost order in the review
application, as well as in the appeal and cross-appeal.
[31] In the result,
I make the following order:
1.
The appeal is dismissed, with no order as
to costs.
2.
The cross-appeal is upheld, with no order
as to costs.
3.
The decision of the Labour Court is set
aside, and substituted with the following order:
‘
1.
The arbitration award of the Commissioner is reviewed and set aside
2.
There is no order as to costs’
F
Kathree-Setiloane AJA
Musi
JA and Murphy AJA concur in the judgment of Kathree-Setiloane AJA
APPEARANCES:
FOR THE
APPELLANT: Ms A Tiry with Ms P Jara
(original heads
of argument prepared by Mr P Seleka
Instructed by
Thaanyane Attorneys
FOR THE
RESPONDENT: Mr Malindi SC (heads of argument prepared by Mr Hulley SC
Instructed
by the State Attorney
[1]
Leave to appeal and to cross-appeal were granted by Lagrange J.
[2]
Section 17(5) of the PSA is now replaced by s 17(3) of the PSA.
[3]
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd; SA Rugby
Players (Pty) Ltd v SA Rugby Players Union and Another
(2008)
29 ILJ 2281 (LAC) at paras 39 to 41.
[4]
See
also:
Subsections
(3) and (4) of s 51 of the LRA, which make provision for the dispute
resolution functions of bargaining councils provide:
‘
(3)
If a
dispute
is referred to a
council
in terms of this
Act
[footnote 11 omitted] and any party to that
dispute
is
not a party to that
council
, the
council
must attempt
to resolve the
dispute
−
(a) through
conciliation; and
(b) if the
dispute
remains unresolved after conciliation, the
council
must arbitrate the
dispute
if−
(i)
This
Act
requires arbitration and any party to the
dispute
has requested that it be resolved through arbitration; or
(ii)
all the parties to the
dispute
consent to the arbitration
under the auspices of the
council
.
(4)
If one or more of the parties to a
dispute
that has been
referred to the
council
do not fall within the registered
scope of that
council
it must, refer the
dispute
to
the Commission.’
Footnote
11 to subsection 3 of s 51 of the LRA provides in relevant part:
‘
The
following disputes contemplated by subsection (3) must be referred
to a council: disputes about the interpretation or application
of
the provisions of Chapter II (see section 9); disputes that form the
subject matter of a proposed statutory council or lock-out
(see
section 64(1); disputes in essential services (see section 74);
disputes about unfair dismissals (see section 191); disputes
about
severance pay (see section 196); and disputes about unfair labour
practices (see item 2 in Schedule 7).’
[5]
Oosthuizen
v CAN Mining & Engineering Supplies BJ
[1999] 4 BLLR 379
(LC);
Franken
v Metal & Engineering Industries Bargining Council and
Others
(2000)
21 ILJ 1791 (LC);
CWIU
and Another v Ryan and Others
[2001] 3 BLLR 337
(LC);
Magic
Company v CCMA and Others
(2005) 26 ILJ 271 (LC)
[6]
Oosthuizen
v CAN Mining & Engineering Supplies
BJ (above) at para 18.
[7]
CWIU
v Ryan
[2001]
3 BLLR 337
(LC) at para 39.
[8]
Oosthuizen
v CAN Mining
(above) at paras 17-18;
Franken
v Metal & Engineering Bargaining Council,
(above)
at 1792I read with 1793A.
[9]
Oosthuizen
supra at par’s 17-18;
Magic
Company v CCMA
supra at 2751.
[10]
[1999] 4 BLLR 379
(LC) at para 18.
[11]
Section 147(7) of the LRA provides as follows:
‘
Where
the Commission refers the dispute in terms of this section to a
person or body other than a commissioner the date of the

Commission’s initial receipt of the dispute will be deemed to
be the date on which the Commission referred the dispute
elsewhere.
[12]
Franken
v Metal & Engineering Bargaining Council
(above) at 1793A-C.
[13]
Oosthuizen
(above) at para 20.
[14]
N
o
aspect of the respondent’s jurisdictional points was abandoned
before the Labour Court in the review application.
[15]
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v SA Rugby Players Union
(2008) 29 ILJ 2218 (LAC).
[16]
[2008] ZACC 15
;
2009
(2) SA 204
(CC) at para 68.
[17]
1981 3 ALL ER 727
HL.
[18]
Hunter
v Chief Constable of West Midlands and Another
1981 3 ALL ER 727
HL.
[19]
2004 SCC 25
;
2004
1 SCR 629
at 662.
[20]
At
662.
[21]
14
App Cas 665.
[22]
Brummer
v Gorfil Brothers Investments (Pty) Ltd en Andere
1999 (3) SA 389
(SCA) at 403E-G
;
V &  A
Waterfront
Properties (Pty) Ltd v Helicopter & Marine Services
(Pty) Ltd
2006 (1) SA 252
(SCA) at paras 10 and 15;
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) at paras 30-38.
[23]
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
2001 (2) SA 232 (SCA).
[24]
Bafokeng
Tribe v Impala Platinum Ltd and Others
1999 (3) SA 517 (B).
[25]
Johnson
v Commission for Conciliation, Mediation & Arbitration and
Others
(2005) 26 ILJ 1332 (LC).