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[2001] ZALCJHB 1
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Mhlambi v East Rand N17 Private Hospital (JR1169/01) [2001] ZALCJHB 1 (24 October 2001)
[COMMENT1]
Sneller
Verbatim/mc
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR1169/01
DATE:
2001-10-24
In the matter between
MHLAMBI Applicant
and
EAST RAND N17 PRIVATE
HOSPITAL Respondent
J U
D G M E N T
LANDMAN
J:
This is an application
brought by Ms Jeanette Mama Mhlambi to review and set aside a ruling
by a Commissioner of the CCMA.
It appears that a second
referral of a dispute concerning the dismissal of Ms Mhlambi was
late. She applied to the CCMA to
condone the late application.
An application for
condonation must be brought in terms of the Rules of the CCMA.
Rule 19 provides that the party bringing
the application must
sign a notice of application and it must be supported by an affidavit
in which various matters must be
set out. The party opposing
the application may then deliver a notice of opposition and an
answering affidavit.
Once this has been done, the party
initiating the proceedings, in this case Ms Mhlambi, may lodge a
replying affidavit within five
days on the day on which any notice of
opposition and answering affidavits is delivered. Deliver
means serve on the
other parties and file with the Commissioner.
In this instance her
employer, East Rand M17 Private Hospital, did not file an affidavit.
Instead a letter dated 27 June 2000
was sent to the CCMA.
Annexed to it was a document which appears to be an unsworn
statement. The CCMA did not make
the letter of 27 June 2000
available to Ms Mhlambi. It did not inform the employer that it
was obliged to put its case under
oath. The Commissioner,
however, took the letter and unsworn statement into account and
issued a ruling in terms of which
the Commissioner declined to
condone the late application.
Not only did the
Commissioner not comply with the Rules of the CCMA, the Commissioner
did not comply with the rules of natural justice.
The applicant was
not allowed any opportunity whatsoever to deal with the response by
her employer.
In
the circumstances this constitutes a gross irregularity. The
condonation ruling is reviewed and set aside. The
matter
is referred back to the CCMA for a fresh hearing on the question of
the condonation. This is to be conducted before
a commissioner
other than the second respondent. East Rand N17 Private
Hospital, the third respondent, is ordered
to pay the
applicant's costs of this application.
____________________
A
A Landman
Judge
of the Labour Court of South Africa
[COMMENT1]
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