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[2004] ZALCJHB 2
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France v National Bargaining Council for the Road Freight Industry and Others (JR1393/03) [2004] ZALCJHB 2 (17 August 2004)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
CASE
NO. : JR1393/03
In
the matter between :
MAPHALU
NTSHAVENI
FRANCE Applicant
And
NATIONAL
BARGAINING COUNCIL
FOR
THE ROAD FREIGHT
INDUSTRY 1
st
Respondent
JAN
STRYDOM
2
nd
Respondent
KINTENTSU
WORLD EXPRESS SOUTH
AFRICA
(PTY)
LTD 3
rd
Respondent
EX TEMPORE JUDGMENT
MAYA
J.
[1]
This is an unopposed application on review. The applicant seeks, in
the main, to have reviewed and set aside a ruling made by
the second
respondent dismissing his application for condonation for the late
filing of his referral of a dispute challenging his
alleged unfair
dismissal by the third respondent.
[2]
He alleges in two affidavits filed in support of this application
that he was in the third respondent’s employ since 2000.
On 19
March 2003 the third respondent charged him with fraud. He was
subsequently found guilty and dismissed from his employment
at a
disciplinary enquiry conducted on 25 March 2003. On 9 April 2003,
well within the relevant time frames, he referred the matter
to the
CCMA which customarily dealt with all third respondent’s
disputes. On 17 April 2003 he received a letter from the
CCMA which
advised him to refer the dispute to the third respondent as it
claimed to have no jurisdiction to entertain the matter.
The dispute
was finally lodged with the first respondent on 12 May 2003 after his
union representatives had taken various steps
to have it adjudicated.
[3]
In a ruling dated 7 July 2003, the second respondent dismissed the
matter on the basis that the applicant had failed to show
good cause
for the grant of the condonation sought. He also concluded that it
was impossible to determine the applicant’s
prospects of
success on the merits as he had had made no averments to prove an
unfair dismissal, having merely alleged that the
dismissal was unfair
as it was based on his conduct.
[4]
The grounds for the review application are,
inter alia
,
that the second respondent failed to apply his mind properly or at
all to the evidence placed before him, did not consider the
applicant’s affidavit and misled the dispute committee by, for
example, failing to inform it of the earlier and timeous referral
to
the CCMA.
[5]
These allegations are not supported by the record and have no merit
whatsoever. It is very clear on a reading of the applicant’s
affidavit, which he filed with the first respondent, that he failed
to make a number of material allegations in support of his
case. For
example, he did not state the date on which he made the referral to
the CCMA. How could the second respondent have determined
that such
referral, even if erroneous, was timeous as alleged? He did not
state the date on which he received the facsimile
message from the
CCMA. The second respondent then properly made the assumption that he
received it on the date reflected on it,
16 April 2003, which proved
to be not far off the mark on the allegations now made by applicants
in the present application. He
then failed to explain the 25-day
delay between his receipt of the letter from the CCMA and lodging the
dispute with the first
respondent.
[6]
These are the very observations made by the second respondent in his
reasons for his ruling which leave me in no doubt that
he considered
all the facts placed before him and correctly applied the relevant
legal principles. The applicant’s affidavit
was simply too
inadequate to support his case. I may point out that even in the
present proceedings the founding affidavit was
just as lacking in
detail. It is only in a subsequent, supplementary affidavit that a
number of material allegations were made.
[7]
I am unable to find that the second respondent’s ruling is
wrong in all the circumstances. The application is accordingly
dismissed.
________________________________________
ACTING
JUDGE OF THE LABOUR COURT
For
the Applicant : Mr Philemon Bhembe ( Union
Representative)
Heard
and delivered on 17 August 2004