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[2003] ZALCJHB 12
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Kungwini Residential Estate And Adventure Sport Centre Ltd v Mhlongo NO and Others (JR603/03) [2003] ZALCJHB 12 (2 December 2003)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
JOHANNESBURG
CASE
NO: JR603/03
In
the matter between:
KUNGWINI
RESIDENTIAL ESTATE AND
ADVENTURE
SPORT CENTRE
LIMITED Applicant
and
MR
LUCKY MHLONGO
N.O. First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
CAROL
DUTTON Third
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application in terms of section 158(1)(g) of the
Labour
Relations Act 66 of 1995 (“the Act”), to review and set
aside a rescission ruling made on 3 March 2003 under
case number
GA39954-02 by the first respondent (“the commissioner”).
2.
The application was opposed by the third respondent.
The
background facts
3.
The third respondent was employed by the applicant. She
resigned on 10 March 2002 and contended that she was constructively
dismissed. On 27 November 2002 she referred a dispute
of
constructive dismissal to the second respondent (“the CCMA”).
On 3 December 2002 the third respondent served
an application for
condonation for the late referral of her dispute.
4.
The applicant handed the third respondent’s application
for
condonation to its attorneys of record who on 4 December addressed a
letter to the third respondent’s representative
stating that
the application for condonation did not comply with Rule 31(3) and
31(3)(e) of the CCMA Rules. It stated that
the non compliance
with the said rule prevented the applicant from opposing the
application for condonation. The complaint
were that since the
CCMA has assigned no case number, the applicant was prevented from
opposing the condonation application.
A copy of the letter was
also faxed to the CCMA.
5.
Unbeknown to the parties, on 10 January 2003 commissioner S
Alli
Dadabhai issued a condonation ruling in terms of which the third
respondent’s late referral was condoned.
6.
On 16 January 2003 the third respondent’s representatives
advised the applicant’s attorneys in a letter that the case
number had been allocated. It advised further that the
applicant had fourteen (14) calendar days to lodge a notice of
opposition and supporting affidavit.
7.
On 22 January 2003 the applicant received per registered post
the
condonation ruling referred to in paragraph 5 above.
8.
On 24 January 2003 the applicant delivered its intention to
oppose
the third respondent’s application for condonation and an
application to have the condonation ruling rescinded.
9.
On 30 January 2003 the applicant received a notification letter
from
the CCMA that the matter had been set down for conciliation on 24
February 2003.
10.
On 24 February 2003 the applicant attended the conciliation meeting
at
the CCMA. The commissioner presided. The applicant
raised the following issues with the commissioner:
10.1
The CCMA did not have jurisdiction to conciliate, since the
application to rescind
the condonation ruling had not been set down
for hearing;
10.2
The commissioner is not permitted to address the rescission
application since the
application was not before him.
11.
The commissioner after being provided with all the relevant documents
pertaining to the rescission application, requested the parties to
address him on the rescission application.
12.
On 25 March 2003, the commissioner issued the ruling that the
applicant
is seeking to review.
The
rescission ruling
13.
The commissioner found in his ruling that:
13.1
That the third respondent has complied with the provisions of CCMA
rules 10(1)(2)
and (3). Rule 10 might be in conflict with Rule
31(3)(b) since it is impractical to have a case number assigned
without having
served the other party to the dispute as specifically
required by Rule 10(2)(b) to have written prove that the other
parties to
the dispute were served.
13.2
If the applicant’s representative was aware of Rule 10, placing
an obligation
on the third respondent to get the case number assigned
is unfair instead of requiring same from the Commission as stated in
Rule
31(3)(b). At this stage having in mind Rule 10, the
applicant’s representative should have known that it was
impossible
that the case number was already assigned but decided to
use this as an excuse not to oppose the application to go on holiday
which
was done the day after receipt of the application. The
commissioner found that in the light of Rule 10, the applicant had no
bona
fide defence not to oppose the application for condonation.
13.3
The commissioner found that it was inappropriate for the applicant to
simply have
concluded that the application was defective and
therefore decided not to oppose the matter. The applicant’s
contention that
the third respondent’s application for
condonation was defective raised a question about who is empowered to
decide defective
referrals. The applicant was not empowered to
decide whether the third respondent’s application was
defective.
The applicant should have in terms of rule 31(5)(a)
requested that the third respondent’s referral be dismissed on
a technical
basis. The reason for not opposing the third
respondent’s application for condonation was because the
applicant’s
representative’s office was closed. The
failure to file a notice of opposition and answering affidavits
constituted
a waiver of the applicant’s rights and could
therefore not be entertained.
The
grounds of review
14.
The applicant relies on the following grounds of review:
14.1
The commissioner did not consider the relevant facts of law,
misunderstood his powers
and consequently arrived at a ruling that is
not in accordance with the law of natural justice.
14.2
The first and second respondents’ failure to take cognizance of
the relevant
Act and Rules for the Conduct of Proceedings before the
CCMA, constitutes an abuse of their powers. The commissioner
determined
a dispute where the dispute had not been the subject of
conciliation.
14.3
The commissioner conducted him in a manner that was partial and
biased and gave a
ruling that was inconsistent with the right to fair
labour practices.
14.4
The commissioner acted outside the limits of the Rules of the CCMA by
which he is
bound to.
14.5
The commissioner failed to make a ruling in terms of the material
properly available
to him and the conclusion he eventually arrived
at.
14.6
The condonation ruling and the rescission ruling are found to be
fatally defective
and be reviewed and set aside.
Analysis
of the facts and arguments raised
15.
There is no substance in the grounds raised by the applicant in his
application.
It is clear from the ruling that the commissioner
considered the relevant facts of law, understood the powers and
arrived at a
decision that was in accordance with the law of natural
justice. The matter had been initially enrolled for
conciliation.
At the conciliation hearing the applicant raised
a point in limine to the effect that the CCMA did not have
jurisdiction to conciliate
the dispute pending the rescission
application. The point in limine was upheld and the
commissioner permitted the parties
to address him on the application
for rescission. The applicant did not object to the route that
the commissioner had followed.
The commissioner did not abuse
his powers and did not determine a dispute which was not the subject
of conciliation. The
commissioner did not go to conciliate the
dispute and it is clear from the ruling that he went on to hear the
rescission application.
It is also clear from the ruling that
conciliation is still pending.
21.
There is no evidence that shows that the commissioner conducted
himself
in a manner that was partial and biased and that he gave a
ruling that was inconsistent with the right to fair labour
practices.
The commissioner had considered all the
material placed before him and arrived at a conclusion that was
based on the material
that was before him.
22.
It is clear from the facts that the third respondent’s referral
was made in terms of Rule 10(1) and (2) and that in terms of Rule
10(3) the CCMA accepted the referral. The said Rule reads
as
follows:
“
(1)
A party must refer a dispute to the commission for conciliation by
delivering a completed
Labour Relations Act form
7.11 (“the
referral form”).
(2)
The referring party must:-
(a)
sign a referral document in accordance with
Rule 4
;
(b)
atttach to the referral document written proof, in accordance with
Rule 6
that the referral document was served on the other parties to
the dispute;
(c)
if the referral document is filed out of time, attached on
application
for condonation in accordance withRule 9.
(3)
The Commission must refuse to accept a referral document until sub
rule
(2) has been complied with.”
23.
The applicant on its own version received the third respondent’s
referral on 3 December 2001. The referral did not contain a
case number. The referral was referred to the applicant’s
attorney’s on 4 December 2001 whose firm was closing for the
December holidays. Instead of filing the necessary notice
to
oppose or answering affidavits, the applicant requested the third
respondent to file a case number. Nothing as pointed
out by the
commissioner prevented the applicant from opposing the late
referral. Except the letter that the applicant wrote
it did
nothing. The third respondent could not condone the applicant’s
non compliance. The applicant could not
on its own decide that
there was non compliance with
rule 31
and decide not to oppose the
application. It was the author of its own misfortune.
24.
The commissioner has dealt with the submissions made by the applicant
about the provisions of
rule 31.
It cannot be said that the
commissioner either committed an irregularity or did not apply his
mind to the facts or submissions
made. The award is well
reasoned and no irregularity was committed by the commissioner.
25.
The applicant has in its written heads of arguments raised new
grounds
of review that was not raised in the review application.
I do not deem it necessary to deal with those new grounds of
review.
26.
The applicant’s application to review the condonation ruling of
10 January 2001 should fail on the basis that the ruling was received
by the applicant on 22 January 2003 and the review application
was only filed with this Court on 15 April 2003. This was well
after the six-week period. There is no application for
condonation. The commissioner who made the ruling was also not cited
at a party to the proceedings.
27.
The review application stands to be dismissed.
28.
There is no reason why costs should not follow the result.
29.
In the circumstances the following order is made:
29.1
The review application is dismissed with costs.
29.2
The CCMA is to enrol the dispute for conciliation under case number
GA39954-02 on
notice to both parties.
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
:
ATTORNEY G J DE VILLIERS - MOHR
FOR
THIRD RESPONDENT
:
M A HAWYER INSTRUCTED BY BARRY KOTZE INCORPORATED ATTORNEYS
DATE
OF JUDGMENT
:
2 DECEMBER 2003