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[2015] ZALCJHB 47
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South African Municipal Workers Union and Others v Zenzeleni Cleaning And Transport Services CC and Others (JR852/13) [2015] ZALCJHB 47 (23 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR852/13
DATE: 23 FEBRUARY
2015
Not Reportable
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
..............................................
First
Applicant
QIQIMANE
AND 42
OTHERS
..................................................................................
Second
Applicant
And
ZENZELENI
CLEANING AND TRANSPORT
SERVICES
CC
.............................................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
BOYCE
T
N.O
.............................................................................................................
Third
Respondent
Heard:
04 September 2014
Delivered:
23 February 2015
Summary: Review
of the ruling that the CCMA does not have jurisdiction to re-enroll
the dispute after the same had been withdrawn
by the applicants. A
party entitled to withdraw a withdrwal of a dispute unless withdrawal
entailed a compromise.
Judgment
Molahlehi, J
Introduction
[1]
This is an opposed application to review and set aside the
jurisdictional ruling made by the third respondent (the
Commissioner),
under case number GAJB 11054-11 on 25 March 2013 in
terms of which it was found that the second respondent (“the
CCMA”)
did not have jurisdiction to re-enroll a dispute that
had been withdrawn before it could have been finalized.
Background facts
[2]
The detailed background facts in this matter are set out in the
parties’ papers, and therefore there is no need to repeat
the
same in this judgment. For the purpose of this judgment the relevant
facts are those relating to the issue for determination
on review and
they are the following: The applicants withdrew their referral to
arbitration after apparently being advised that
the best cause of
action to take in challenging their dismissal was contractual. This
entailed instituting their claim in the High
Court.
[3]
The applicants realized in due course that the prospects of success
in the High Court were not good and therefore applied to
the CCMA to
have their arbitration proceedings re-enrolled. The application to
re-enroll the arbitration proceedings was refused
by the Commissioner
on the basis that the CCMA lacked jurisdiction.
The ruling on
jurisdiction
[4]
In arriving at the conclusion that the CCMA lacked jurisdiction to
allow the applicants to re-enroll their dismissal dispute
which the
applicants had withdrawn, the Commissioner reasoned as follows:
“
4.1
At the outset it must be noted that neither the Labour Relations Act,
1995 (the LRA), nor the CCMA Rules, provides for the CCMA
to
determine an application to “enroll” an unfair dismissal
dispute after such a dispute has been withdrawn by an applicant.
The
real enquiry, therefore, is not whether there were plausible reasons
why the applicants withdrew their disputes, but whether
the CCMA has
any powers to even entertain such an application.”
[5]
In
relying on the authority of
Ncaphayi
v CCMA and Others
,
[1]
the Commissioner, found that the effect of the withdrawal of a
dispute by a party is akin to absolution from the instance which
means that, unless the withdrawal is “part and parcel of a
final settlement of the dispute”, the party concerned may
reinstitute proceedings on the same cause of action.
The grounds for
review
[6]
The applicant contends that the Commissioner was incorrect in finding
that the CCMA had no jurisdiction to consider the application
for
re-enrolment for the following reasons:
“
12.1
In terms of section 191(5) of the LRA the CCMA must arbitrate a
dispute at the request of the employee party if it has been
referred
to conciliation and 30 days have passed or a certificate has been
issued;
12.2
It is common cause that in this matter those conditions had been
fulfilled;
12.3
The withdrawal of the dispute was not for reasons that it had been
settled. The dispute between the parties as to the alleged
unfair
dismissals of the individual applicants was still in existence,
notwithstanding its withdrawal;
12.4
There is no provision in the CCMA rules which provides that the
effect of a withdrawal is such that the dispute is removed
from the
jurisdiction of the CCMA;
12.5
There is no provision in the LRA which provides that the effect of a
withdrawal is such that the dispute is removed from the
jurisdiction
of the CCMA;
12.6
In seeking arbitration in respect of their alleged unfair dismissal
the individual applicants seek to enforce their constitutional
right
to fair labour practices. The effect of the arbitrator’s ruling
is to limit that right. Such a limitation would have
been contained
expressly in the statute.”
[7]
The applicants contend further that, the Commissioner’s
conclusion that the CCMA does not have the jurisdiction to deal
with
an application of this nature is incorrect.
[8]
The
applicants in their heads of argument contend that at common law, the
withdrawal of an action does not mean that the claim has
been
extinguished or abandoned
[2]
and
that a party to litigation may apply to have its matter re-enrolled
on good cause shown
[3]
. If the
legislature had intended different consequences in a labour dispute
there would have been explicit provision to that effect.
The effect of
withdrawal of a dispute at the CCMA
[9]
The
issue of withdrawal from proceeding with a dispute at the CCMA
received detailed and careful attention by Lagrange J in
Ncapahyi
v CCMA & Others,
[4]
where
it was held that:
“
[26]
The essential issue is whether the commissioner was correct in
concluding that he could not entertain the applicant’s
unfair
dismissal claim unless the notice of withdrawal in respect of the
first referral was not set aside by this court.
[27]
The second reason relates to the effect of a withdrawal of a referral
to conciliation. The LRA does not deal with the withdrawal
of matters
referred to the CCMA and neither do the rules of the CCMA. Rule 13 of
the Labour Court merely deals with the procedure
to be followed if a
party wishes to withdraw proceedings. It is instructive to note how
the High Court has considered the effect
of a withdrawal of a matter.
It has been held that the withdrawal of a matter by a party is akin
to an order of absolution from
the instance.
Ordinarily,
an order of absolution from the instance does not prevent a party
from reinstituting proceedings and the defendant absolved
in the
first proceedings will not be able to raise the
exceptio rei
judicatae
if sued again on the same cause of action
.’’
[10]
In the
subsequent unreported case of
Bennet
Shibogde v Minister of Safety and Security and Others,
[5]
the
Learned Judge in the above matter held that:
“
[26]
Yet the fact that a matter is withdrawn is not necessarily a bar to
reinstituting proceedings. It seems that the prevailing
view is that
a claim is not determined by the withdrawal did not bar of the
claim, but the withdrawal is equivalent to a
grant of absolution from
the instance. It therefore remains open for the applicant to
reinstitute proceedings as the merits of
the claim have not been
adjudged.
[27]
. . . The withdrawal of the matter by the applicant, did not bar him
from referring the matter afresh.’’
[20]
For these reasons, the pending review application does not constitute
an adequate alternative remedy either. Whatever the outcome
of that
application, the CCMA has to consider the second referral.”
[11]
The
same approach was adopted by Shai AJ in
Kgobokowe
v Commission for Conciliation, Mediation and Arbitration &Others
[6]
.
In
that case the Court rejected the approach which was adopted in the
Public
Servants Association of SA obo Strydom v SA Revenue Services
[7]
,
where it was held that a withdrawal of an action cannot be withdrawn.
The decision that a party would not be entitled to withdraw
a
withdrawal of a claim was based on the doctrine of an election. In
rejecting that approach the Court in Kgobokoe held that “a
withdrawal of a matter may be withdrawn.”
[12]
In
SAMWU Cleaning & Transport
, unreported case number
J2448/13, Steenkamp J, agreed with the decision in Ncapahyi and drew
a distinction between a withdrawal
at the applicant’s own
instance and where the withdrawal is an intrinsic part of a
settlement agreement. The Court in further
agreeing with Ncapahyi
held that a withdrawal of a dispute in labour matters is akin to an
order of absolution from the instances
in civil litigation. The fact
that the applicant had withdrawn the referral did not according to
the Court deprive the CCMA of
the power to enroll the arbitration of
the second referral.
[13]
In the present matter, the issue which the Commissioner ought to have
concerned himself with to ensure that he arrives at a
correct
decision is whether there had been compliance with the provisions of
Section 191
(5) of the
Labour Relations Act of 1995
, in terms of
which it is explicitly provided that the CCMA must arbitrate a
dispute at the request of an employee, if the dispute
has been
referred to conciliation and or 30 days have lapsed or a certificate
of outcome has been issued confirming that the dispute
remains
unresolved. It is common cause that the applicant acquired the right
to refer the matter to arbitration once it was confirmed
that the
dispute remained unresolved.
[14]
The Commissioner was incorrect in assuming that the withdrawal
automatically meant that the applicants were no longer intended
on
pursuing their claim by virtue of the withdrawal.
[15]
There is no automatic legal consequence that a withdrawal of a
dispute means that the withdrawal cannot be withdrawn
and the
dispute be re-enrolled. Once the applicants’ application to
have the matter re-enrolled was made it was incumbent
on the
Commissioner to enquire as to whether the withdrawal precluded the
applicants from proceeding further with the dispute.
It is only where
the withdrawal is consequent to the compromise of the dispute, that
it cannot be withdrawn. It appears from the
papers, that had the
Commissioner enquired into the nature of the withdrawal, he would
have found that the withdrawal did not compromise
the applicant’s
claim.
[16]
In light of the above I am of the view that applicants’
application stands to succeed. I however do not believe that
it would
be appropriate to allow costs to follow the results.
Order
[16] In
the premises the following order is made:
1.
The ruling of the Third Respondent, that the Second Respondent did
not have jurisdiction to entertain the applicant’s dispute
is
reviewed and set aside.
2.
The Second Respondent is ordered to re-enroll the arbitration
proceedings and allocate a date for the hearing of the matter before
a Commissioner other than the Third Respondent.
3.
There is no order as to costs.
E
MOLAHLEHI
Judge
of the Labour Court, Johannesburg
Appearances:
For
the Applicant: Mr R Daniels from Cheadle Thompson & Haysom
For
the Respondent: D Venter from Webber Wentzel Attorneys
[1]
[2011]
32
ILJ
402 (LC), at para 27.
[2]
Franco
Vignazia Enterprises (Pty) Ltd v Berry
[1983]
4 ALL SA 17
,
Kruger
v Sekretaris van Binnelandse Inkomste
1970 (4) SA 687 (A)
[3]
Roupell
v Metal Art Ltd
1972
(4) SA 300 (W)
[4]
Supra
[5]
Unreported Case number JR3307/09.
[6]
(
2012)
33
ILJ
235 (LC).
[7]
(2007)
28
ILJ