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[2012] ZALCJHB 143
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Pheaga and Others v Commission for Conciliation Mediation and Arbitration and Others (J 2731/10) [2012] ZALCJHB 143 (2 February 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
case no: J 2731/10
In the matter between:
PHEAGA VICTOR & 36 OTHERS
...........................................................................
Applicants
and
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION (JOHANNESBURG)
...........................................................
First
Respondent
THOMAS NEMUSHUNGWA
(COMMISSIONER)
..................................................................................
Second
Respondent
SET POINT LABORATORIES
....................................................................
Third
Respondent
Heard
:
03 November 2011
Delivered
:
02 February 2012
Summary: Application for condonation refused.
JUDGMENT
GUSH J
The applicants in this matter who had been employed by the Third
Respondent filed this application on 9
November 2010 in
which application the applicants sought the following relief:
‘
1.
That the ruling made by the Second Respondent under case number
GAB13487-10 dated 7
July
2010 faxed on 8
July
2010 be reviewed and set aside.
2. Directing that the matter be
referred back to the first respondent for conciliation
de novo
before a panellist other than the second respondent
3. Directing that such of the
respondents who oppose the relief sought herein be ordered to pay the
costs of the application ...’
The second respondent’s ruling which the applicants seek to be
reviewed and set aside was that the first respondent did
not have
jurisdiction to hear the matter.
It is clear from the above that the applicants’ notice of
motion was filed well outside the statutory time period within
which
an applicant is entitled to bring an application for the review and
setting aside of an award of a Commissioner of the
first respondent.
The notice of motion in support for the review of the second
respondent’s ruling states that an affidavit by Pheaga Victor
(first applicant) and annexures thereto ‘will be used in
support of the application’. There is no such affidavit
filed.
In fact, the applicants have filed no affidavits at all in support
of the application to review the second respondent’s
ruling.
(The only affidavits which the applicants have filed are in support
of the application for condonation.) When the applicants
filed the
record of the proceedings in accordance with rule 7A of the Labour
Court Rules, their notice merely records that they
“stand by
their notice of motion”.
Contemporaneously with their so called review application, the
applicants filed an ‘application for condonation in support
of
the notice of motion’. As with the notice of motion in the
review application, reference is made to an affidavit by
Pheaga in
support of the condonation application. In the case of the
condonation application, the affidavit is duly attached.
The background to the matter is as follows;
The applicants were dismissed by the third respondent on 6
April 2010.
On 6 May 2010, on their behalf, their erstwhile union National
Union of Mineworkers (NUM) referred a dispute concerning their
dismissal to the first respondent.
The first respondent enrolled the matter for conciliation on 7 July
2010.
At the conciliation, the third respondent raised, in
limine,
a
jurisdictional issue relating to the jurisdiction of the CCMA to
conciliate the matter as the dispute between the parties
had been
settled.
The settlement agreement which is dated 10 May 2010, a copy of
which is attached to the third respondent’s papers, reflects
that pursuant to the dismissals and after subsequent meetings
between the applicants’ union official and the third
respondent regarding the dispute over their dismissals, the matter
was settled by the third respondent and the NUM official who
was at
the time representing the applicants.
The applicants had been dismissed for embarking on unprotected
industrial action and a series of stoppages which had taken
place
during the course of consultations between the applicants’
then union and the third respondent regarding possible
retrenchments.
The meeting at which the dispute was settled took place on 29 April
2010 and was recorded in writing and signed by the third
respondent
on 3 May 2010 and forwarded to the union official on that day.
The union official who represented the applicants at the meeting on
29 April 2010 signed the agreement on 10 May 2010 and returned
it
to the third respondent.
The nature of the settlement agreement was an agreement that the
applicants’ dismissal would be deemed to be a retrenchment
and that they would be paid such severance pay as would be due in
accordance with the Basic Conditions of Employment Act.
Somewhat surprisingly in his ruling regarding jurisdiction, the
second respondent surprisingly does not deal with the issue
regarding the settlement but found erroneously that the referral
was 1 (one) day late and that the referral itself was incomplete.
The ruling was issued by the second respondent on 8 July 2010.
The applicants then applied to the first respondent for the
rescission of the ruling and for the condonation for the late filing
of the rescission application.
On 20 September 2010, the second respondent dismissed the
applicants’ application for rescission.
On 9 November 2010, the applicants filed this application for the
review of the original jurisdictional ruling and for condonation
for
the late filing thereof.
The review application was filed some 84 days late. It is important
to record that in their application for condonation, the
first
applicant who deposed to the founding affidavit explains that the
reason for the lateness was due to the applicants having
applied
unsuccessfully for the rescission of the ruling. No other reason is
offered. What the deponent to the affidavit fails
to mention or
explain, however is the fact that even assuming that the six week
period is to be calculated from the date of which
the rescission
application was refused the applicants’ application for review
was filed outside the statutory six week
period, and accordingly
there is no explanation at all for this delay.
As for addressing the applicants’ prospects of success
regarding the review application all that the deponent to the
affidavit in support of the condonation application says is:
‘…
.on
the merits of application the 1
st
to
37
th
applicants
has good prospect of success
It is the applicants submission
that the third respondent was inconsistent in dismissing 37 employees
and called some back to the
employment (work)
The third respondent failed to
consider that the applicants have a right to a fair hearing.
Applicants submit that the third respondent
took them as no voice to
the matter, in that the disciplinary hearing was finalized in their
absents
the applicants submit that the
third respondent failed to consider that consultation have
to
take place before a shop steward
is to be charge
d.’ (sic)
Despite the fact that there is no doubt that at the time the
applicants referred their dispute to the first respondent that they
were aware of the settlement agreement entered into between their
union and the third respondent, there is no mention made by
the
applicants of the settlement agreement in their founding affidavit.
The first time the applicants deal with the settlement agreement is
in their replying affidavit to the third respondent’s
affidavit opposing the application for condonation. Save for simply
averring that the person who signed the settlement agreement
on
their behalf was at the time no longer authorised to sign the
agreement, the applicants take the matter no further.
It is clear from the above that the applicants have not provided an
adequate explanation for the late filing of the review application
in that specifically there is no explanation at all for the delay
between the outcome of the rescission application and the filing
of
the review application.
Even if their explanation was found to be reasonable, the
applicants’ application for the review of the award is not
supported by any affidavit. The applicants have not put up any
affidavit at all in support of their application to review the
second respondent’s ruling. Neither do the affidavits filed in
support of the application for condonation in any way whatsoever
establish on what grounds the applicants rely in seeking to review
the ruling nor do they reflect any prospects that the review
application will succeed.
Prima facie
the papers reveal that
the matter has been settled.
In considering the question of costs, I am of the view that given
the specific circumstances of this case that it would not be
just
nor equitable to order the applicants to pay the costs.
In the circumstances, I make the following order:
The applicants’ application for the late filing of the
application for the review of the jurisdictional ruling issued by
the
second respondent is refused.
___________________
Gush J
APPEARANCES
FOR THE APPLICANTS: Victor Pheaga (First applicant)
FOR THE RESPONDENT: A. E Solomon
Instructed by: Solomon Holmes Attorneys