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[2009] ZALCJHB 62
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Mkhize v Myhill NO and Others (JR333/06) [2009] ZALCJHB 62 (22 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT REPORTABLE
CASE
NO: JR 333/06
In
the matter between:
RAYMOND
LUCKY MKHIZE
APPLICANT
and
E
L E MYHILL
N.O.
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
DATONA
CRANE SERVICES
CC
3
RD
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1]
This is an application to review and set
aside the ruling of the first respondent (the commissioner) under
case number GAJB871-04
and dated 23
rd
September 2005. The ruling refusing the rescission was consequent to
another ruling which had been issued under case number JB871-04
and
issued on the 25
th
May 2005. In terms of the ruling under case number JB871-04 the
applicant’s dispute was dismissed because despite having
been
properly notified of the date of the hearing he did not appear.
Background facts
[2]
The applicant claims that he was employed
by the third respondent in November 2002 as a workshop assistant and
was later promoted
to the position of telesales and at the time of
his dismissal on the 30
th
July 2005 he was already a sales man.
[3]
According to the applicant, during June
2003, his employer entered into an agreement with one Perry who
apparently founded the third
respondent being Datona Crane Services
CC. It would appear that the employer of the applicant on his version
prior to the creation
of Datona Crane Services CC was Datona Crane
Supplies. He contends that although he remained a member at the
Datona Crane Supplies
CC, he continued to work at the third
respondent until the date of his dismissal.
[4]
The applicant states that the reason for
not arriving at the CCMA on the 25
th
May 2005 for his case, on time was due traffic related problems.
[5]
The applicant has set out the grounds for
the review of the ruling of the commissioner in his founding
affidavit and they read as
follows:
“
14.
GROUNDS FOR REVIEW
I respectfully submit
that the ruling by the 1
st
Respondent should be reviewed
and set aside on one more or all the following grounds:-
14.1 The
First Respondent failed to apply his mind on the evidence, which was
presented before him.
14.2 The
First Respondent’s decision was grossly irregular.
14.3 The
First Respondent’s reasons for dismissal at my application are
not justifiable.”
[6]
In considering the application for
rescission the commissioner found that the applicant in making his
application did not comply
with the 14 days requirement for filing
such an application. The applicant was in this respect some 26
(twenty six) days late.
The commissioner dismissed the application
because there was no application for condonation and found that even
if condonation
was granted the applicant’s prospects of success
seem to him to be non existence as the evidence pointed to the fact
that
the applicant was not employed by the third respondent but by
some other entity.
[7]
The issue of whether or not the third
respondent was the employer of the applicant was heard on the 2
nd
November 2004 where the respondent raised the point
in
limine
concerning the true employer of
the applicant.
[8]
Applicants for rescission of awards or
rulings in the CCMA are governed by
section 144
of the
Labour
Relations Act 66 of 1995
, which reads as follows:
“
144.
Variation and rescission of arbitration awards and rulings. –
Any commissioner who has issued an arbitration award or
ruling, or
any other commissioner appointed by the director for that purpose,
may on that commissioner’s own accord or, on
the application of
any affected party, vary or rescind an arbitration award or ruling –
(a)
erroneously sought or erroneously made in the absence of any party
affected by that award;
(b)
in which there is an ambiguity, or an obvious error or omission, but
only to the extent of that ambiguity,
error or omission; or
(c)
granted as a results of a mistake common to the parties to the
proceedings.”
[9]
In
Shoprite
Checkers Pty Ltd v Commission for Conciliation, Mediation and
Arbitration and Others (2007) 28 ILJ 2246 (LAC),
the Court held that the word “
good
cause shown”
should be read into
section 144
of the LRA. This means that in order to succeed in a
rescission application one of the requirements is that the applicant
must
provide an acceptable and reasonable explanation for the
default.
[10]
The Court in the
Shoprite
Checkers
supra, further held that the
test for good cause in an application for rescission involves the
considerations of the explanation
for the default and whether there
are prospects of success in the main case. See
Northern
Province Local Government Association v CCMA and Others (2001) 22 ILJ
1173 (LC).
In the present matter the
applicant has firstly failed to make out a case for reviewing the
ruling of the commissioner. The applicant
has also failed to make out
a case that shows that he has good prospects of succeeding in the
main case.
[11]
In my view the applicant’s
application to review and set aside the ruling of the commissioner
refusing to rescind the dismissal
of his case stand to be dismissed.
I do not believe that it would be fair to order that costs should
follow the results.
[12]
In the premises I make the following order.
(i)
The applicant’s application is
dismissed.
(ii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
23
rd
October 2009
Date
of Judgment :
22
nd
December 2009
Appearances
For
the Applicant :
Mr B L Mzamo of Mzamo Attorneys
For
the Respondent: Mr C A
Balie (human resource officer)