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[2008] ZALCJHB 74
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EOH Abantu (Pty) Ltd v Commissioner for Conciliation Mediation And Arbitration and Another (J68/08) [2008] ZALCJHB 74 (27 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: J68/08
In
the matter between:
EOH
ABANTU (PTY) LTD
Applicant
And
COMMISSIONER
FOR CONCLIATION, MEDIATION
AND
ARBITRATION
First Respondent
MOSTERT,
JOHANNES FREDERIK
Second Respondent
JUDGMENT
AC
BASSON, J
[1] The following order
was made on 17 January 2008.
“
Having
read the papers and having considered the matter, the following order
is made:
1.
The Rules of this Court relating to the forms and manner of
service are hereby dispensed with and this matter is dealt with as
one
of urgency;
2.
The arbitration proceedings before the First Respondent under
case number GAJB34137-07 and set down for 18 January 2008 is stayed
pending the finalization of the review application brought by the
Applicant under case number JR2911-07.
3.
The First Respondent is ordered to file or dispatch within 10
days of the date of this order to the Registrar of this Court the
record of the proceedings in the review under case number JR2911-07,
including the tapes of the proceedings and all documents related
to
the matter, and the decision sought to be reviewed, together with
such reasons as are required by law or desirable to be provided.
4.
The Second Respondent is ordered to pay the costs of this
application.
Herewith
brief reasons for the order.
[2]
This was an urgent application to stay further arbitration
proceedings before the First Respondent (the Commissioner for
Conciliation,
Mediation and Arbitration – hereinafter referred
to as “the CCMA”) set down for 18 January 2008 pending
the outcome
of a review application of the certificate of
non-resolution of the dispute.
[3]
It is common cause that the Second Respondent (Mr Johannes Mostert –
hereinafter referred to as “Mostert”)
referred a dispute
about his alleged unfair constructive dismissal by the Applicant (EOH
Abantu (Pty) Ltd) to the CCMA. The matter
was set down for a
conciliation hearing on 6 November 2007. Mostert was present at the
conciliation hearing and the Applicant (the
employer) was represented
by its Human Resources Manager (a one Ms Matheson – hereinafter
referred to as “Matheson”).
It is common cause that
Matheson had raised a jurisdictional point and that she had submitted
to the Commissioner presiding over
the conciliation hearing (the
“conciliating commissioner”) that Mostert was not an
employee of the Applicant but that
the relationship was that of an
independent contractor. It is further common cause that the
conciliating commissioner declined
to issue a ruling on the
jurisdictional objection raised on behalf of the Applicant and that
he had informed the parties that the
jurisdictional objection would
be dealt with at the arbitration proceedings. A certificate of
non-resolution was forthwith issued.
[4]
A review application was subsequently launched in the Labour Court to
review and set aside the certificate of non-resolution
issued by the
Commissioner at conciliation on the basis that the conciliation
commissioner had no authority to issue a certificate
of outcome in
circumstances where he had declined to determine whether the CCMA had
the necessary jurisdiction to entertain the
referral.
Second
Respondent’s arguments
[5]
On behalf of Mostert it was argued that the conciliating Commissioner
was fully entitled to adopt this course of action for
two reasons:
(i)
Firstly, the CCMA often allocates limited time periods for
conciliation and it therefore makes more sense that jurisdictional
issue are dealt with at arbitration where the parties could
present
both oral and documentary evidence. At the outset I must point out
that I do not accept this argument. The fact that the
CCMA
experiences administrative constraints which necessitate placing time
constraints on commissioners cannot, in my view, be
accepted as an
excuse for not deciding a jurisdictional point properly raised before
it. The CCMA is a creature of statute and
is enjoined to rule (albeit
subject to the review powers of the Labour Court) on its jurisdiction
whenever a jurisdictional point
is raised before it at the
conciliation phase. I will return to this point hereinbelow.
Furthermore, the CCMA has, at least 30
days in which to conciliate
the dispute – a period that may be extended by agreement (see
section 135(2) of the Labour Relations
Act 66 of 1995 (hereinafter
“the LRA”). The conciliating commissioner could have
postponed the conciliation hearing
in order to allow the parties to
argue the jurisdictional point fully.
(ii)
Secondly,
it was argued that Rule 22 of the Rules of Conduct of Proceedings
before the CCMA
[1]
allows for
jurisdictional issues not determined at conciliation, to be raised
during the arbitration proceedings. I will return
to the merits of
this argument hereinbelow. It was further argued on behalf of Mostert
that the proper procedure would therefore
have been for the Applicant
to have raised the jurisdictional issue at the arbitration
proceedings as was pertinently advised by
the Commissioner. It was
further submitted that, even if the review application is successful,
the Labour Court will simply order
that the preliminary point must be
dealt with by a Commissioner other than the Commissioner who issued
the certificate presently
under review. This, so it was argued, would
in any event have taken place on 18 January 2008.
Applicant’s
arguments
[6]
The case for the Applicant was crisp: The conciliating commissioner
had no jurisdiction to issue the certificate of outcome
without
deciding the jurisdictional point pertinently raised at the
commencement of the conciliation proceedings. More specifically
it
was argued that the Rules of the CCMA cannot be interpreted as
allowing the issuing of a certificate of outcome subject to the
proviso that the CCMA’s jurisdiction will be established
subsequently by the arbitrating commissioner. At this junction it
must be pointed out that there is no indication on the papers that
the conciliating commissioner did in fact direct the arbitrating
commissioner to establish jurisdiction before hearing the merits of
the referral which is, in any event, in my view, not proper.
General
principles
[7]
The CCMA is a creature of statute and hence it only has jurisdiction
over those disputes referred to it in terms of the LRA.
See in this
regard section 115(4) of the LRA which reads as follows:
“
The
Commissioner must perform any other duties imposed and may exercise
any other powers
conferred
on it by
or
in
terms of
this Act and is committed to perform any other functions entrusted to
it by any other law.”
[2]
[8]
The CCMA’s main statutory function is to resolve disputes
through conciliation and to arbitrate those disputes referred
to it
“
in terms” of
the powers conferred upon it by the
LRA and the Rules. The CCMA (as a creature of statute) will therefore
act
ultra vires
should it assume jurisdiction over disputes
not referred to it
in terms
of the LRA. The
jurisdiction of the CCMA (and of any other statutory tribunal) is
dependent upon the existence of certain objectively
predetermined
conditions as set out in the LRA from which it derives its existence.
Although a statutory tribunal (such as the
CCMA) will (for practical
reasons) rule on its jurisdiction, it cannot by virtue of the fact
that it is a statutory authority,
confer the necessary jurisdiction
upon itself. Any pronouncement on jurisdiction remains subject to the
review powers of the Labour
Court. I will return to this point
infra
.
See also
Pinetown
Town
Council v President,
Industrial
Court
1984
(3) SA 173
(N) where the Court held as follows:
“
Where the
jurisdiction of a tribunal is dependent on the existence of a
particular state of affairs, it cannot give itself jurisdiction
by
incorrectly finding that the conditions for the exercise of
jurisdiction are satisfied. The conditions precedent to jurisdiction
are known as "jurisdictional facts" (see Anisminic Ltd v
Foreign Compensation Commission
[1968] UKHL 6
;
[1969e 2 AC 147
(HL) at 208 per Lord
WILBERFORCE) which must objectively exist before the tribunal has
power to act; consequently a determination
on the jurisdictional
facts is always reviewable by the Courts because in principle it is
no part of the exercise of the jurisdiction
but logically prior to
it. (See also Theron en Andere v Ring van Wellington van die NG
Sendingkerk in SA en Andere
1976 (2) SA 1
(at 15).”
[9]
Although a tribunal (such as the CCMA) cannot rule on its own
jurisdiction, it will do so for practicality considerations and
will
do so subject to review by the Labour Court. S
ee
SA Broadcasting Corporation v CCMA &
Others
(2003) 24
ILJ
211 (LC) at par [17] and
Benicon Earthworks & Mining
Services (Edms) Bpk v Jacobs & Others
(1994) 15
ILJ
801 (LAC) at 803H – 804A. Although the
Benicon-
case was
decided with reference to the Industrial Court which was also
established in terms of the now repealed LRA, the following
principles apply equally to the CCMA as a statutory tribunal:
“
The powers of
the Industrial Court do not extend to ruling upon its own
jurisdiction. At best, it can make an assessment of whether
a court
reviewing its proceedings is likely to set them aside. Where the
existence or otherwise of the jurisdictional fact is readily
ascertainable, this precondition can usually be made with some
confidence. However, where the jurisdictional fact is dependent
upon
the validity of the exercise of statutory powers, any enquiry would
most often be futile. The enquiry may raise difficult
issues, and in
any event, as I have already indicated, any conclusion to which the
Industrial Court may come will in any event
not be decisive.
In terms of the Act,
this court is entitled to review proceedings of the Industrial Court
for want of jurisdiction. In order to
succeed, it is for the
applicant to show objectively that the jurisdictional facts necessary
for the exercise of its powers are
absent.”
[10]
Prior to commencing conciliation, as the first step in the dispute
resolution procedures provided for by the LRA, the
CCMA as a
statutory tribunal must establish whether it has in fact the
necessary jurisdiction to conciliate the dispute referred
to it. See
in this regard
Pine
Town
Council v President,
Industrial Court
1984 (3) SA 173
(N) at 179B – D (quoted in
paragraph 8
infra
). This principle has also been confirmed by
the Labour Court in
Avroy Schlain Cosmetics (Pty) Ltd v Kok &
Another
(1998) 19
ILJ
336 (LC) where the Court held as
follows:
“
In my opinion
the powers given to the commissioner to attempt to resolve the issue
and to determine the process to try and resolve
the issue, only kick
in if the commissioner has the necessary jurisdiction. The
legislature … found it too obvious to state
that the
commissioner should first investigate the jurisdictional facts before
entering on the conciliation.”
Further
at 346 the Labour Court made it clear that this is the very first
question that the CCMA must determine:
“
The
CCMA or any tribunal for that matter can, on a preliminary basis,
subject to subsequent review by a court, decide on its jurisdiction
ie it should be the very first enquiry which the CCMA will have to
make before it proceeds to determine whether the dismissal of
an
employee was fair or unfair.”
See
also
Toit's Menlyn Auto Traders (Pty) Ltd v Van Jaarsveld No &
Others
(2006) 27 ILJ 2421 (LC) at paragraph [15] – [16]:
“
[15] …….
Whether or not the dispute was first referred for conciliation and
the conciliating commissioner had decided
that the dispute remains
unresolved, or the 30-day period has expired, are quite clearly
factual matters that must be determined
by the arbitrator when his or
her jurisdiction to determine the dispute is placed in issue. It
should be the first enquiry which
the arbitrator will have to make
before it proceeds to determine whether the dismissal of an employee
was fair or unfair. It must
be stressed that the arbitrator is not
called upon, and is not empowered, to decide whether the conciliating
commissioner correctly
concluded that the dispute was resolved or
that it remained unresolved. The conduct of the conciliating
commissioner and the validity
of his decisions are matters to be
considered by a review tribunal (Grogan at 478).
[16]
Similarly,
the conciliating commissioner may only validly conciliate a dispute
if an employer-employee relationship exists and if
the employee
referred a dispute in writing to the CCMA or to a council having
jurisdiction, within the time-limits prescribed by
subsection (1) of
s 191, or failing which, condonation was granted for the failure to
comply with the said time-limits. The question
whether or not these
jurisdictional facts are present must be raised before and be decided
by the conciliating commissioner.
The decision of the conciliating commissioner or the arbitrator
relating to jurisdiction is a preliminary matter and may be set
aside
by this court on review, usually after the conclusion of the
arbitration proceedings.”
[3]
Commissioner
at conciliation
[11]
The
following circumstances will typically affect the jurisdiction of the
CCMA to conciliate
[4]
a dispute
referred to it:
(i)
The existence of an
employer – employee
relationship
.
It is trite that the CCMA only has jurisdiction in respect of a
dispute that has arisen in the context of an employment relationship.
Consequently the CCMA will not have jurisdiction to conciliate a
dispute where the referring party is an independent contractor.
See:
Avroy Schlain Cosmetics (Pty) Ltd v Kok & Another
(1998)
19
ILJ
336 (LC) at 345. See also
Fidelity Guards Holdings
(Pty) Ltd v Epstein NO & Others
(2000) 21 ILJ 2382 (LAC) at
paragraph [16] and
Toit's Menlyn Auto Traders (Pty) Ltd v Van
Jaarsveld No & Others
(2006) 27 ILJ 2421 (LC) at paragraph
[16].
(ii)
The existence of a
dispute
in terms
of the LRA;
(iii)
Where the disputing parties fall under the jurisdiction of a
bargaining council
, the CCMA will not have jurisdiction unless
jurisdiction has been conferred on the CCMA in terms of the
provisions of section 147
of the LRA;
(iv)
Whether the dispute has been referred to the CCMA within the
statutory prescribed time limits
. Application for condonation
must be made simultaneously with the referral of the dispute to the
CCMA (Rule 9(2) of the CCMA Rules).
Once the conciliating
commissioner issues the certificate of non-resolution, the
certificate will stand and the arbitrating commissioner
will have
jurisdiction to arbitrate notwithstanding the fact that the referral
was out of time and notwithstanding the fact that
condonation has not
been granted until such a time the certificate is taken on review and
set aside. See in this regard:
Fidelity Guards Holdings (Pty) Ltd
v Epstein, NO, the CCMA and Sukhanan
(2000) 11 (2) SALLR 21
(LAC);
Fidelity Guards Holdings (Pty) Ltd v Epstein NO &
Others
(2000) 21 ILJ 2382 (LAC) at paragraph [7] and
Venlinov
v University of Kwazulu-Natal & Others
(2006) 27
ILJ
177 (LC) at paragraph [8] where the Court confirmed the
principle as set out in the
Fidelity Guard
-case).
Commissioner
at arbitration
[12]
The CCMA
commissioner appointed to
arbitrate
a dispute may equally only do so if it has the necessary jurisdiction
to do so. Does the issuing of a certificate of non-resolution
confer
the necessary jurisdiction upon the arbitrating commissioner to
arbitrate the dispute referred to it? Also, can any of the
referring
parties raise an objection in respect of the issuing of the
certificate of non-resolution at arbitration? It would appear
from a
reading of the
Fidelity
Guards
-
decision (
supra
)
that the issuing of a certificate of non-resolution is sufficient to
confer the necessary jurisdiction upon the arbitrating commissioner
to arbitrate the dispute. Once a certificate of non-resolution has
been issued, such a certificate will therefore satisfy the factual
pre-condition necessary for the arbitrating commissioner to arbitrate
the dispute referred to it. Furthermore, the conciliating
commissioner, by issuing the certificate of non-resolution, performs
an administrative act
[5]
that
remains valid until set aside on review. Whether such a certificate
is valid or invalid will not affect the jurisdiction of
the
arbitrating commissioner to arbitrate and the certificate of
non-resolution will remain valid until such a time it is set aside
on
review. This appears, at least, to be the position where the
conciliating commissioner has issued a certificate of non-resolution
in circumstances where it subsequently appears that the dispute has
been referred to the CCMA out of time. In
Fidelity
Guards
(
supra
)
the Labour Appeal Court held that the certificate of non-resolution
was the jurisdictional fact that gave the arbitrator in that
case the
necessary jurisdiction to arbitrate the matter until such a time the
certificate has been set aside on review. Once the
conciliating
commissioner has therefore issued a certificate of non-resolution,
the jurisdictional pre-condition contained in section
191(5) of the
LRA will have been satisfied as far as the proceedings before the
arbitrating commissioner are concerned.
[13]
Although the
Fidelity
Guards
-decision (
supra
)
was decided in the context of a late referral (which is, of course, a
jurisdictional issue), the principle remains, in my view,
the same in
respect of any other jurisdictional point: Once a certificate of
non-resolution has been issued, as far as the powers
of the
arbitrating commissioner are concerned, there will have been
compliance with the factual jurisdictional requirements or
factual
precondition which are to be found in section 191(5) of the LRA. The
arbitrating commissioner does not have the power to
enquiry on the
validity
of such a certificate nor does it have the power to enquire into the
conduct
of
the conciliating commissioner as these are matters that fall under
the jurisdiction of the Labour Court (see also
Toit's
Menlyn –
case
(supra
)
at paragraph [15]). It would therefore follow that the
arbitrating
commissioner will not have the power to decide (reconsider) a
jurisdictional point afresh in circumstances where the
conciliating
commissioner has already decided on jurisdiction at the conciliation
phase and issued a certificate of non-resolution.
I will return to
the effect of Rule 22 of the Rules of the CCMA on the legal position
as stated here.
[14]
To summarize:
The issuing of a certificate of non-resolution
is the jurisdictional precondition or jurisdictional fact that
confers the power
on the arbitrating commissioner to arbitrate the
referred dispute (see section 191). It is this
factual existence
(at least on the face of it) of the certificate of non-resolution
that enables the arbitrating commissioner to arbitrate the dispute
referred to it. Whether the certificate of non-resolution (the
administrative act performed by the conciliating commissioner in
terms of the LRA) is legally valid or invalid does not affect the
power of the arbitrating commissioner to arbitrate the dispute
and
such certificate, which is the necessary (factual) precondition for
the validity of the subsequent arbitration, will remain
valid until
reviewed and set aside by a competent court such as the Labour Court.
In coming to this conclusion, I had regard to
the decision of the
Supreme Court of Appeals in
Oudekraal Estates
(Pty) Ltd v City of Cape Town & Others
2004
(6) SA D 222 (SCA) where the Court with reference to
administrative law principles, pointed out as follows:
“
[27] The
apparent anomaly (that an unlawful act can produce legally effective
consequences) is sometimes attributed to the effect
of a presumption
that administrative acts are valid, which is explained as follows by
Lawrence Baxter Administrative Law at 355:
'There exists an
evidential presumption of validity expressed by the maxim omnia
praesumuntur rite esse acta; and until the
act in question is found
to be unlawful by a court, there is no certainty that it is. Hence it
is sometimes argued that unlawful
administrative acts are
''voidable'' because they have to be annulled.'
At other times it has
been explained on little more than pragmatic grounds. In
Harnaker v Minister of the Interior
1965 (1) SA 372
(C) Corbett J
said at 381C that where a court declines to set aside an invalid act
on the grounds of delay (the same would apply
where it declines to do
so on other grounds) '(i)n a sense delay would . . . ''validate'' a
nullity'. Or as Lord Radcliffe said
in Smith v East Elloe Rural
District Council [1956] F AC 736 (HL) at 769 - 70 ([1956]
1 All ER 855
at 871H;
[1956] 2 WLR 888):
'An [administrative]
order . . . is still an act capable of legal consequences. It bears
no brand of invalidity upon its forehead.
Unless the necessary
proceedings are taken at law to establish the cause of invalidity and
to get it quashed or otherwise upset,
it will remain as effective for
its ostensible purpose as the most impeccable of orders.'
[28] That has led some
writers to suggest that legal validity (or invalidity) in the context
of administrative action is never absolute
but can only be described
in relative terms. In Wade Administrative Law 7th ed (by H W R Wade
and Christopher Forsyth) at 342 -
4 that view is expressed as
follows:
'The truth of the
matter is that the Court will invalidate an order only if the right
remedy is sought by the right person in the
right proceedings and
circumstances. The order may be hypothetically a nullity, but the
Court may refuse to quash it because of
the plaintiff's lack of
standing, because he does not deserve a discretionary remedy,
because he has waived his rights, or
for some other legal reason. In
any such case the ''void'' order remains effective and is, in
reality, valid. It follows that an
order may be void for one purpose
and valid for another; and that it may be void against one person but
valid against another.
. . . ''Void'' is therefore meaningless in any
absolute sense. Its meaning is relative, depending upon the Court's
willingness
to grant relief in any particular situation.'
[29] In our view, the
apparent anomaly - which has been described as giving rise to
'terminological and conceptual problems
of excruciating complexity' -
is convincingly explained in a recent illuminating analysis of the
problem by Christopher Forsyth.
Central to that analysis is the
distinction between
what exists in law
and
what exists in
fact
. Forsyth points out that
while a void administrative act
is not an act in law, it is, and remains, an act in fact, and its
mere factual existence may
provide the foundation for the legal
validity of later decisions or acts
. In other words
'. . . an invalid
administrative act may, notwithstanding its non-existence [in law],
serve as the basis for another perfectly valid
decision. Its factual
existence, rather than its invalidity, is the cause of the subsequent
act, but that act is valid since the
legal existence of the first act
is not a precondition for the second.'
It
follows that
'(t)here is no need to
have any recourse to a concept of voidability or a presumption of
effectiveness to explain what has happened
[when legal effect is
given to an invalid act]. The distinction between fact and law is
enough.'
The
author concludes as follows:
'(I)t has been argued
that unlawful administrative acts are void in law. But they clearly
exist in fact and they often appear to
be valid; and those unaware of
their invalidity may take decisions and act on the assumption that
these acts are valid. When this
happens the validity of these later
acts depends upon the legal powers of the second actor. The
crucial issue to be determined
is whether that second actor has legal
power to act validly notwithstanding the invalidity of the first act.
And it is determined
by an analysis of the law against the background
of the familiar proposition that an unlawful act is void.'
…
..
[30] Lord Hoffmann
drew the same distinction in R v Wicks
[1998] AC 92
(HL) ([1997]
[1997] UKHL 21
;
2
All ER 801
;
[1997] 2 WLR 876)
when he said the following at 117A - C
(AC) (815h - j (All ER)):
(T)he statute may upon
its true construction merely require an act which appears
formally valid and has not been quashed by
judicial review. In such a
case, nothing but the formal validity of the act will be relevant to
an issue before the justices.'
[31]
Thus the
proper enquiry in each case - at least at first - is not whether the
initial act was valid but rather whether its substantive
validity was
a necessary precondition for the validity of consequent acts.
If the validity of
consequent acts is dependent on no more than the factual existence of
the initial act then the consequent
act will have legal effect
for so long as the initial act is not set aside by a competent court
.
“
[6]
[15]
Does the
arbitrating commissioner have the power to decide jurisdiction where
the issue of jurisdiction has been raised at conciliation
but the
conciliating commissioner has declined to do so (as was the case in
the present matter)? Despite earlier decisions of the
Labour Court in
which the Court expressed doubt whether it was intended that the
conciliating commissioner should decide whether
or not the referring
party is an employee as contemplated in terms of the LRA,
[7]
I am of the view that it is incumbent upon the conciliating
commissioner to decide this (or any other) jurisdictional point
raised
before it. (I will return to the position if for some reason a
jurisdiction point was not raised during conciliation and the effect
of Rule 22 of the CCMA Rules in this scenario.) The Court in
SA
Broadcasting Corporation v CCMA & Others
(2003) 24
ILJ
211 (LC) was of the view that the decision of the conciliating
commissioner in respect of a jurisdictional point (such as whether
or
not there exists and employer-employee relationship) does not bind a
commissioner subsequently appointed to arbitrate and that
the
arbitrating commissioner may thus reconsider the same jurisdictional
question.
[8]
In coming to this conclusion the Court relied on the decision in
Benicon
Earthworks-
case
(
supra
)
and that “
[t]he
conciliating commissioner’s finding on the issue constitutes
nothing more than his or her opinion and binds no-one,
including the
arbitrating commissioner
”.
[9]
Whilst it is true that the conciliating commissioner cannot determine
its own jurisdiction and that the obligation to enquire into
jurisdiction only arises from practical considerations, this fact
does not mean that the certificate of non-resolution, which is
an
administrative act and a necessary factual precondition for the
validity of consequent acts, does not bind the arbitrating
commissioner. I am also of the view the decision in
Benicon
is not authority for the view that an arbitrating commissioner is not
bound by the an earlier decision by an arbitrating commissioner.
The
decision in
Benicon
(
supra
)
merely confirmed the principle that the Industrial Court (as a
statutory tribunal) cannot rule on its own jurisdiction and that
“
[a]t
best, it
[the
Industrial Court]
can
make an assessment of whether a court reviewing its proceedings is
likely to set them aside
”.
As already pointed out, the CCMA is a creature of statute with its
powers circumscribed and limited by the statute from
which it derives
its existence. The jurisdictional precondition or jurisdictional fact
that must exist before the arbitrating commissioner
may arbitrate a
dispute is circumscribed by section 191(5) of the LRA and in terms of
which it is a jurisdictional precondition
that the dispute has been
referred to conciliation and that the conciliating commissioner has
certified by issuing a certificate
of non-resolution that the dispute
remained unresolved or where a period of 30 days has lapsed since the
CCMA has received the
referral for conciliation and the dispute
remained unresolved (see
Toit’s
Menlyn
(
supra
)
at paragraph [15]). The issuing of the certificate of non-resolution
thus constitutes compliance with the jurisdictional fact
necessary to
empower the arbitrating commissioner to arbitrate the dispute
referred to it. This will remain the position until
such a time the
certificate is set aside. This was also the view of the Labour Appeal
Court in
Fidelity
Guards
(
supra
)
and accepted as correct by the Labour Court in
Toit’s
Menlyn
(
supra
)
at paragraph [11] and
Velinov
(
supra
)
at paragraph [8]. In the latter case the Court held as follows:
“
[8] As far as
the jurisdictional point is concerned, it is now settled law that the
commissioner acquires jurisdiction to arbitrate
a dispute after a
certificate of non-resolution has been issued (see Fidelity Guards
Holdings (Pty) Ltd v Epstein NO & Others
(2000) 21 ILJ 2382
(LAC); [2000] 12 1389 (LAC)). The court found in this case that
even if the dispute is referred late,
the commissioner retains
jurisdiction provided a certificate of ‘non-resolution’
has been issued. It went on to find
that the only way in which a
defective certificate can be challenged is by way of review.”
“
[12] In my view
the language employed by the legislature in s 191 is such that, where
a dispute about the fairness of a dismissal
has been referred to the
CCMA or a council for conciliation, and the council or commissioner
has issued a certificate in terms
of s 191(5) stating that such
dispute remains unresolved or where a period of 30 days has lapsed
since the council or the
CCMA received the referral for conciliation
and the dispute remains unresolved, the council or the CCMA, as the
case may be, has
jurisdiction to arbitrate the dispute. That the
dispute may have been referred to the CCMA or council for
conciliation outside
the statutory period of 30 days and no
application for condonation was made or one was made but no decision
on it was made does
not affect the jurisdiction to arbitrate as long
as the certificate of outcome has not been set aside. It is the
setting aside
of the certificate of outcome that would render the
CCMA or the council to be without the jurisdiction to arbitrate.
[13] In para [12] of
his judgment, Pillemer AJ said:
'If the administrative
act of certification is invalid, even then it must be challenged
timeously because, if not, public policy
as expressed in the maxim
omnia praesumuntur rite esse acta, requires that after a reasonable
time has passed for it to be challenged,
it should be given all the
effects in law of a valid decision. (Cf O'Reilly v Mackman
[1983] UKHL 1
;
[1983] 2 AC 237
, 238 and Harnaker G v Minister of
Interior
1965 (1) SA 372
(C) at 381.)' I agree with this.”
Rule
14 of the Rules of the CCMA
[16]
Rule 14 of
the Rules of the CCMA confirms the principle that the CCMA (as a
statutory authority) must determine the issue of jurisdiction
as a
prerequisite for exercising its powers in terms of the CCMA. This
rule states as follows under the heading “
How
to determine whether a commissioner may conciliate a dispute
”:
“
If it appears
during conciliation proceedings that a jurisdictional issue has not
been determined, the commissioner
must
require the referring party to prove that the Commission has the
jurisdiction
to conciliate the dispute through conciliation.
”
[10]
[17]
It is, in
my view, clear from this section that it is peremptory for a
conciliating commissioner to deal with a jurisdictional issue
if it
appears during the conciliation proceedings that a jurisdictional
issue has not been determined. In other words, where a
party raises a
jurisdictional point during conciliation or where it appears that
there exists a jurisdictional reservation, such
point
must
be determined by the conciliation commissioner. Where the
conciliating commissioner fails to do so, such a refusal will
constitute
a reviewable irregularity. Having said this, I am mindful
of the fact that the current application before this Court is not a
review
application in respect of the proceedings before the
conciliating commissioner and the subsequent issuing of the
certificate of
non-resolution. It is, however, in assessing whether
or not the Applicant has made out a case for the relief sought in the
present
application, necessary to have some regard to the prospects
of success of the pending review application. In coming to this
conclusion,
I also had regard to the decision in
Sapekoe
Tea Estates (Pty) Ltd v Commissioner Maake & Others
(2002)
23 ILJ 1603 (LC)
[11]
where the Labour Court reviewed and set aside a certificate of
outcome of a dispute referred for conciliation on the basis that
the
conciliating commissioner had deliberately elected to bypass a
fundamental preliminary question namely that of its own
jurisdictional
capacity. The Court held that this was a question that
the conciliating commissioner was required to address and determine
before
he could entertain any other aspect of the dispute between the
parties. Although this case dealt with the question of condonation,
I
am of the view that this is equally and if not, more so, applicable
where parties raise a issue of jurisdiction such as the existence
of
an employer - employee relationship which, if decided in the favour
of the applicant, may constitute an absolute bar to jurisdiction:
Rule
22 of the Rules of the CCMA
[18]
Rule 22
reads as follows under the heading “
How
to determine whether a commissioner may arbitrate a dispute
”:
“
I
f
during the arbitration proceedings it appears that a jurisdictional
issue has not been determined, the commissioner must require
the
referring party to prove that the Commission has jurisdiction to
arbitrate the dispute.
”
[19]
Do the provisions of Rule 22 allow an arbitrating commissioner to
re-examine the same jurisdictional issue that has been raised
before
conciliating arbitrator? I am of the view that it does not. The
content of Rule 14 and Rule 22 are, in my view clear: If
a
jurisdictional point is raised at conciliation or if it becomes clear
during the conciliation proceedings that a jurisdictional
issue has
arisen, the conciliation commissioner is compelled to deal with the
issue and make a ruling (which is subject to review
by the Labour
Court). I am in agreement with the sentiments expressed by my learned
brother Tip, AJ in the
Sapekoe
-matter that, by refusing to do
so, such a refusal would constitute a “
deliberate election
to bypass a fundamental preliminary question, that of his own
jurisdictional capacity
” and would constitute a reviewable
irregularity.
[20]
It appears
from a reading of Rule 22 that it is only in those circumstances
where a jurisdictional issue has not been determined,
that the
arbitrating commissioner will be entitled to determine a
jurisdictional issue despite the fact that the conciliating
commissioner has already issued a certificate of non-resolution. To
this end, Rule 22 appears to be in conflict with administrative
principles in terms of which a statutory authority is precluded to
(review and) set aside an administrative act (such as a certificate
of non-resolution) or decision as well as with the principle that an
administrative act (such as a certificate of non-resolution)
remains
valid until reviewed and set aside by a competent court such as the
Labour Court. Rule 22 clearly has as it purpose
to assist
parties to a labour dispute, most of whom are lay people and who may
not have realized or known that a jurisdictional
concern even existed
or ought to have been raised at the conciliation phase, to raise such
a jurisdictional concern at the arbitration
phase notwithstanding the
fact that a certificate of non-resolution has been issued. In
Premier
Gauteng & Others v Ramabulana N.O & Others
Case No JA 62/05 (21/12/2007) the Labour Appeal Court also confirmed
that the CCMA may derive powers from the rules in so far as
they do
not conflict with the LRA.
[12]
Rule 22 will also apply where the conciliating commissioner issues a
certification of non-resolution in circumstances where the
employer
did not attend the conciliation hearing and only raises a
jurisdictional point at the commencement of the arbitration
proceedings. Rule 22 is, in my view, not applicable to those
instances where a party raises a jurisdictional point (such as for
example that an applicant before the CCMA is not an employee) during
the conciliation proceedings. In such circumstances the conciliating
commissioner is, in my view, obliged to consider the point and a
refusal to investigate the jurisdictional issue would, in my view,
constitute a reviewable irregularity. This Rule is also not
applicable to those circumstances where the conciliating commissioner
did in fact make a ruling on a jurisdictional point. In such
circumstances the certificate of non-resolution will stand and
subsequently
arbitration proceedings will be lawful until such time
the certificate is reviewed and set aside. Rule 22 is also, in my
view,
not applicable to those circumstances where a party (usually
the employer party) is aware of a jurisdictional point but
deliberately
fails to raise it during conciliation but only raises it
at arbitration. In such circumstances I am of the view that the
employer party will have to launch proper review proceedings before
the Labour Court to review the certificate of non-resolution.
The
decision to review a certificate under such circumstances will
clearly be subject to the Labour Court’s discretion and,
in
weighing this question, regard will be had,
inter
alia
,
to the extent to which the employer had abused the CCMA proceedings
by deliberately not raising the jurisdictional concern as
well as the
extent to which the disputing parties might have relied or acted on
the certificate of non-resolution.
[21]
Lastly, reference should also be made to the decision in
Seeff
Residential Properties v Mbhele NO & Others
(2006) 27
ILJ
1940 (LC) where the Labour Court, in a review application to
review a certificate of non-resolution issued by the conciliating
commissioner in circumstances where the conciliating commissioner
refused to consider a jurisdictional objection that the CCMA
did not
have jurisdiction because the applicant before the CCMA was not an
employee, confirmed that such a refusal constitutes
a reviewable
irregularity. With reference to Rule 14 the Court concluded that this
rule constitutes a form of delegated legislation
which binds the
commissioner. The Court held as follows:
“
[8] It is
self-evident, on the facts outlined above, that during relevant
conciliation proceedings it must have become apparent
to the
commissioner that a jurisdictional issue existed which had not been
determined. In those circumstances the commissioner
was bound
in terms of the rule to require the referring party, in this case the
third respondent, to prove that the commission
had the jurisdiction
to conciliate the dispute through conciliation. The commissioner
failed to do so. By so doing she acted in
breach of a law
circumscribing her powers and her decision to issue the certificate
of outcome without investigating the jurisdictional
issue raised is
therefore reviewable in terms of the constitutional principle of
legality. (See Fedsure Life Assurance Ltd &
others v Greater
Johannesburg Transitional Metropolitan Council & others E
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at paras 58 and 59; President of the Republic of
SA & others v SA Rugby Football Union & others
2000 (1) SA 1
(CC) at para 148; Gerber v Member of the Executive Council for
Provincial Government, Development & another
2003 (2) SA 346
(SCA) at para 35; Pharmaceutical Society of SA & others v
Tshabalala-Msimang & another NNO; New Clicks SA (Pty) Ltd v
Minister of F Health & another
2005 (3) SA 238
(A) at
para 41.)”
[22]
In respect of the question whether or not a conciliating commissioner
may defer the jurisdictional objection to the arbitrating
commissioner the Court (in that case) made it clear that the
conciliating commissioner
must
decide the outcome of the
question affects the jurisdiction of the conciliating commissioner to
conciliate the matter:
“
[11] Second, I
do not know why the commissioner refused to investigate the
jurisdictional issue raised by the applicant for determination.
None
of the respondents have filed answering affidavits and the record
filed in this matter comprises no more than the third respondent's
referral form and the certificate of outcome issued by the
commissioner. It may be, however, that the commissioner took the view
that, if a respondent wanted to raise the point that the referring
party had not been its 'employee', this was not a matter to
be
considered at the conciliation stage and that it was a matter only to
be considered by the arbitrating commissioner in due course.
Such an
approach would be consistent with certain decisions of this court, eg
Dempster v Kahn & others (1998) 19 ILJ 1475 (LC);
BHT Water
Treatment (A Division of Afchem (Pty) Ltd incorporating PWTSA) v CCMA
& others (2002) 23 ILJ 141 (LC); AVBOB Mutual
Assurance Society v
Commission for Conciliation, Mediation & Arbitration,
Bloemfontein & others (2003) 24 ILJ 535 (LC).
There are two
answers to this. First, even if the commissioner believed that
her jurisdiction to conciliate did not turn
on whether or not the
referring party was in truth an 'employee', she was nevertheless
bound in terms of rule 14 of the CCMA Rules
to enquire into the
correctness of that very proposition. Second, there is weighty
authority which contradicts the cases referred
to above and which is
to the effect that a conciliating commissioner has no jurisdiction
even to conciliate unless the referring
party is, in fact, an
'employee'. See eg Tier Hoek v CCMA
[1999] 1 BLLR 63
(LC); Virgin
Active (Pty) Ltd v Mathole NO & others (2002) 23 ILJ 948 (LC);
Sapekoe Tea Estates v Commissioner Maake &
others (2002) 23 ILJ
1603 (LC); Flexware (Pty) Ltd v CCMA & others (1998) 19 ILJ 1149
(LC). In my view it is clear from these
cases and from s 191(1)(a) of
the Act (which permits a 'dismissed employee' to refer an unfair
dismissal dispute for conciliation)
that the referring party must, in
truth, be an 'employee' and therefore that no jurisdiction exists to
conciliate the dispute
if the referring party is not an
'employee'.”
Is
the pending review application premature?
[23]
Although it is for the reviewing court to decide whether the
review application is premature, I am if the view that in the
circumstances
of this particular case, there is sufficient authority
to support the view that the review court will interfere and review
and
set aside a jurisdictional ruling in circumstances where the
conciliating commissioner had refused to deal with a jurisdictional
point raised during conciliation. Although the Court in
SA
Broadcasting Corporation v CCMA &
Others (2003) 24 ILJ 211
(LC) was of the view that it is not advisable for the court to give a
final ruling on a jurisdictional
question where the facts are not
entirely clear and where the possibility exists that the facts which
may emerge during the course
of the arbitration may justify a
different conclusion than a conclusion based purely on the facts
disclosed during the conciliation
proceedings (at paragraph [21]),
the Court nonetheless accepted that there is no hard and fast rule
and that it is for the court
to decide whether a review application
should be dismissed. This is also the view of the Labour Appeal Court
in
Fidelity Guards
:
“
[20] I think
from the above it should be clear that whether or not a party should
approach the court about jurisdictional objections
before or after
the completion of the processes before the CCMA or the council is not
a simple question. I doubt that a hard and
fast rule can be made
about it. Considerations which this issue raises are not altogether
dissimilar to some of the considerations
which our courts have to
deal with from time to time in different contexts (see Nugent J in
Liberty Life Association of Africa
Ltd v Niselow (1996) 17 ILJ
673 (LAC) at 676G-680J; Nicholson J in Gordon Verhoef & Krause &
another v Azanian Workers
Union & others (1997) 18 ILJ 707
(LAC) and Galgut J in connection with the in medias res rule in Zondi
& others v
President Industrial Court & H others
(1991) 12 ILJ 1295 (LAC) especially at 1300C-1303A).”
[24]
In light of the afoaregoing I am of the view that the Applicant has
satisfied all the requirements for the urgent relief sought
in the
Notice of Motion. I can also find no reason why costs should not
follow the result.
______________________________
AC
BASSON, J
DATE
OF PROCEEDINGS:
16 JANUARY 2008
DATE
OR ORDER:
17 JANUARY 2008.
DATE
OF REASONS
: 27 March 2008
FOR
THE APPLICANT
:
Adv
M Lennox. Instructed by Botoulas Krause Inc
FOR
THE RESPONDENT:
Adv
W Hutchinson: Instructed by Fluxmans Attorneys.
[1]
GNR.1448 of 10 October 2003.
[2]
Own
emphasis.
[3]
Own
emphasis.
[4]
This
list is by no means intended to be exhaustive.
[5]
See:
Toit's
Menlyn Auto Traders (Pty) Ltd v Van Jaarsveld No & Others
(2006) 27 ILJ 2421 (LC): “
[14]Whenever
it acts, a public authority must determine the scope of its own
powers. It must, subject to subsequent review by
a court of law,
ascertain whether the prescribed jurisdictional preconditions for
acting exist and must determine the limits
of its own authority.
(See I Avroy Shlain Cosmetics (Pty) Ltd v Kok &
another (1998) 19 ILJ 336 (LC);
[1997] BLLR 1566
(LC) at 1566C-D and
1567A-D; NUMSA v Driveline Technologies (Pty) Ltd & another
(2000) 21 ILJ 142 (LAC)
[2007] ZALC 66
; ;
[2001] 1 BLLR 20
(LAC) at 38F-39A and the
remarks of Zondo JP in the decision of the Labour Appeal Court in
the Fidelity Guards matter at 1391J-1392B.)
Where the power to be
exercised is statutory, such as in the present matter, the question
of what the preconditions are that
must exist before such power can
be exercised, lies within the four corners of the statute providing
for such power. Whether
or not a precondition exists may be a matter
of law or fact, and where the existence thereof is disputed, the
public authority
must necessarily decide it. These preconditions or
jurisdictional facts are collateral issues and must be contrasted
with the
actual matter which the authority is called upon to decide.
This was explained as follows B by Lord Goddard CJ in R
v Fulham etc Rent Tribunal, ex parte Zerek
[1951] 2 KB 1
at 6:
'[I]f a certain
state of facts has to exist before an inferior tribunal has
jurisdiction, they can inquire into the facts in order
to decide
whether or not they have jurisdiction, but cannot give
themselves jurisdiction by a wrong decision upon them;
and this
court may, by means of proceedings for certiorari, inquire into the
correctness of the decision. The decision as to
these facts is
regarded as collateral because, though the existence of jurisdiction
depends on it, it is not the main question
which the tribunal has to
decide.'
See also Bunbury v
Fuller
[1853] EngR 768
;
[1853] 9 Ex 111
; R v Special Commissioners of Income Tax
[1888] 21 QBD 313
at 319; Baxter at 452-3 and Wade at 288-9.”
[6]
Own
emphasis.
[7]
See:
SA
Broadcasting Corporation v CCMA & Others
(2003)
24
ILJ
211 (LC). The Court in this case was of the view that it is not
necessary for a commissioner appointed to conciliate a dismissal
dispute to enquiry into and make a finding upon the question as to
whether the referring party was indeed an employee. The Court
reasoned that conciliation should take place with the minimum of
legal formality to be followed and that jurisdictional points,
which
are normally substantial points, should be dealt with at the
arbitration phase (at paragraph [8]). The Court, however,
accepted
that it is bound to find that a conciliating commissioner is “
at
least entitled (if not obliged) to investigate
”
whether or not a person who claims to be a dismissed employee is
indeed an employee for purposes of the LRA (at paragraph
[12]).
[8]
At
paragraph [19] – [20].
[9]
At paragraph [19].
[10]
Own
emphasis.
[11]
“
[11]
In the present case, the first respondent deliberately elected to
bypass a fundamental preliminary question, that of his
own
jurisdictional capacity. It was a question that he was required to
address and determine before he could entertain any other
aspect of
the dispute between the parties, including the dispute about
condonation. His failure to deal with the jurisdiction
dispute
constitutes a clear irregularity, which must be set aside. It is for
the CCMA to determine questions of its own jurisdiction
in a
particular dispute and not for this court. The matter must
accordingly be referred back to the second respondent. The first
respondent has already expressed views on the matter and it is
undesirable that he should again be seized with this case.
[12]
At
paragraph [10]: “….
And
the CCMA is a creature of statute that, generally speaking, derives
its powers from the Act. Of course, it can also derive
some of its
powers from its rules governing the dispute resolution process that
it is empowered to undertake. Needless to say,
its rules shold not
be in conflict or inconsistent with provisions of the Act. Where
they are, the Act will obviously prevail
and such rules would be
ultra vires.”