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[2014] ZALCJHB 160
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Biyela And Others v Mortrade 209 (Pty) Ltd t/a Sabela Loss Control (JS370/13) [2014] ZALCJHB 160 (8 May 2014)
REPUBLIC
OF SOUTH AFRICA
INTHE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE
NO: JS 370/13
In the matter
between -
VELAPHI BIYELA & 3
OTHERS
Applicant
And
MORTRADE 209 (PTY) LTD
t/a
SABELA LOSS CONTROL
Respondent
Date heard:
23 April 2014
Date
of judgment: 08
May
2014
Summary:
Application to dismiss statement of case for allegedly filing it
outside the required time frame. The respondent claiming
that the
applicants should have filed their statement of case within 10 days
as required by rule 6 (2) of the Rules. Rule 6 (2)
not applicable and
thus the application dismissed.
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This is an interlocutory application in
terms of which the respondent seeks the dismissal of the applicant's
statement of case.
The respondent contends that the applicant's claim
should be dismissed because the statement of case was filed outside
the time
prescribed by the LRA and no condonation for such late
filing has been made.
[2]
Subsequent to his the dismissal, the
applicant referred an alleged unfair dismissal dispute to the CCMA on
15 February 2013. The
dispute could not be resolved and on 14 March
2014 the Commissioner issued a certificate of non-resolution.
[3]
It is apparent from that thereafter the
matter was referred to arbitration where a jurisdictional ruling was
issued on the 30
th
April 2013. In that respect the Commissioner found that the CCMA
lacked jurisdiction to entertain the dispute and directed the
parties
to consider referring the matter to the Labour Court. The applicant
had filed a statement of case on 22 May 2013.
[4]
The respondent contends that the applicants
ought to have filed their statement of case within 10 days from the
date of the Director
of the CCMA referred the matter to Court as
required by rule 6 (2) (C) of the Rules of the Labour Court.
[5]
Section 191 (6) deals with the power of the
Director to refer a dispute to the Labour Court on application by a
party. In the present
matter there has been no application by either
party to have the matter referred to the Labour Court by the Director
neither has
such a referral been made by the Director.
[6]
It is apparent from the reading of the
statement of case and all other relevant documents in this matter
that the matter is referred
to the Court in terms of section 191 (1)
of the Labour Relations Act. This means that the provisions of
section 191 (1) (b) (ii)
of the LRA applies. The provisions of this
subsection require that the referral should be made within 90 days.
[7]
In light of the above, I am of the view
that the point
in limine
raised by the respondent has no merit and accordingly stands to fail.
[8]
As concerning the costs it was argued on
behalf of the applicants that costs should be punitive. Although
the respondent can
be criticised for the approach it adopted in
dealing with this matter, I am of the view that it would not be
appropriate to award
punitive costs. I am however of the view that
there is no reason why costs on a party to party scale should not be
allowed to follow
results.
Order
[9]
In the circumstances, the respondent’s
point
in limine
is dismissed with costs.
_____________________
E Molahlehi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: MC Vermeulen
Attorneys
For
the Respondent: B Masuku of Tabacks Inc