About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 221
|
|
Steve Tshwete Housing Association v Commission for Conciliation, Mediation And Arbitration and Others (JR 3191/11) [2015] ZALCJHB 221 (4 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 3191/11
DATE: 04 JUNE 2015
Not Reportable
In the matter between:
STEVE TSHWETE HOUSING
ASSOCIATION
..................................................................
Applicant
And
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
..................................................................................................
First
Respondent
COMMISSIONER DAVIS MAILA
N.O
................................................................
Second
Respondent
MR DAVID
NDALA
...................................................................................................
Third
Respondent
Heard: 04 March 2015
Delivered: 04 June 2015
Summary: Review of the rescission ruling of
the Commission.
JUDGMENT
Molahlehi, J
Introduction
[1]
This
is
an application to review and set aside the rescission issued by the
second respondent under case number GATW2990-11 dated 09
November
2011. The rescission ruling rescinded the variation under the same
case number. The variation ruling was made on 10 August
2011. The
variation ruling is based on acceptance of evidence which was not
submitted during the arbitration hearing.
Background Facts
[2]
The
third respondent who I will refer to as “the employee” in
this judgment was employed by the applicant as a housing
maintenance
supervisor in 2002 until his dismissal on 18 February 2011. I
will also for ease of reference refer to the applicant
as the
“employer”.
[3]
The
employee was dismissed following a disciplinary hearing concerning
the allegations of misconduct relating to theft, fraud and
dishonesty.
[4]
The
employee being unhappy about his dismissal referred the dispute
concerning an alleged unfair dismissal to the first respondent.
He
contended in this regard that his dismissal was both procedurally and
substantively unfair.
[5]
The
dispute was considered by Commissioner Maila, (the first
Commissioner) who issued the arbitration award on 10 August 2011, in
terms of which he found the dismissal of the employee to have been
both procedurally and substantively unfair. It was for this
reason
that he ordered the reinstatement of the employee and compensation in
the amount of R46, 800.
[6]
The
applicant thereafter applied for the variation on the basis that the
arbitration award was made on a mistake common to both
parties. The
alleged mistake relates to the failure to submit the fixed term
contract of the employee during the arbitration hearing.
In other
words the applicant did not submit as evidence the fixed terms
contract as evidence to show that reinstatement would in
those
circumstances not be appropriate.
[7]
The
second respondent (the second Commissioner) accepted the fixed term
employment contract as evidence of the nature of the relationship
between the parties and thus limited the relief sought by the
employee to compensation for the remainder of the period of the fixed
term employment contract. The reinstatement order made in the first
arbitration award was accordingly revoked.
[8]
The
employee was understandably unhappy about the variation and
accordingly applied to have the variation rescinded.
[9]
In
the rescission application the employee contended that he was never
aware of the variation application and its outcome. He conceded
in
his founding affidavit that he was employed on a fixed term
employment contract by the employer but contended that he was not
inform him about the possibility of not renewing the contract.
[10]
In
its opposition to the rescission application the applicant raised two
points
in limine
,
the first point being that the employee had failed to apply for
condonation for the late filing of the rescission application
and the
second being that rescission was not the proper process but rather
the proper one was review.
[11]
The
variation ruling was rescinded on the 9 November 2011 and accordingly
the award of the first Commissioner date 10 August 2011
was
reinstated. The rescission ruling read as follows:
“
23.
The application for condonation for the late filing of the rescission
application is hereby granted.
24 The variation ruling
dated 26-09-2011 issue by Commissioner Raphela is hereby rescinded
and the arbitration award is dated 10-08-2011 issue by Commission
Maile is reinstated in its entirely.”
[12]
In
granting the rescission application the second Commissioner was fully
aware that the rescission application was late and that
the employee
did not formally apply for condonation. In granting the condonation
he reasoned as follows:
“
17
Even though there was no formal application for condonation filed,
the applicants submission on the reason for the delay is
simply that
though the fax number used to send the variation ruling on 26
September 2011 belonged to his representative, he did
not receive the
same and only became aware of the variation ruling on 7
th
October 2011 and launched application for rescission on 13
th
October 2011.
18
Whether or not the applicant did receive the variation ruling of 20
th
September 2011 would require technical evidence and for that reason
the applicant would receive the benefit of the doubt and the
application for condonation for the late filing of the application
for rescission of the variation is therefore granted.
19
On
the merits of the application, despite the terminology used by the
applicant’s representative in his argument during the
application, the CCMA and not the labour court as argued by the
respondent’s representative, is the proper forum to hear
the
application for rescission.
20
It
is common cause that the issue of the expiry of the applicant’s
fixed term contract of employment and it’s renewal
(sic)
subject to the performance appraisal was never introduced as part of
evidence during the arbitration hearing and it follows
therefore that
an application in terms of section 144 cannot be used to introduce
new evidence which was never introduced during
the arbitration
hearing”.
[13]
As
stated earlier the applicant is now seeking an order reviewing and
setting aside the rescission ruling.
Grounds
of Review
[14]
The
case of the applicant in the present case is that the Commissioner
exceeded his powers in that he issued a ruling for rescission
without
considering and ruling on a condonation application for the late
filing of the rescission application.
[15]
The
other ground upon which the applicant relies on in challenging the
Commissioner’s award is that it is not one that a reasonable
Commissioner could have reached.
Analysis
[16]
The
rescission or variations of CCMA Commissioner’s arbitration
awards or rulings are governed by the provisions of section
144 of
the Labour relations Act
[1]
,
which reads as follows:
“
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 result of a mistake common to the parties to the
proceedings.”
[17]
The
time frame within which a rescission application has to be made is
governed by rule 32 of the CCMA rules which provides:
“
(1)
An application for the variation or rescission of an arbitration
award or ruling must be made within fourteen days of the date
on
which the applicant became aware of –
(a)
the
arbitration award or the ruling; or
(b)
a
mistake common to the parties to the proceedings
[18]
Rule
9 of the CCMA rules governs any referral or application filed outside
the applicable time frames. It requires that condonation
application
must be made whenever documents are filed outside the prescribed time
frame. Read with rule 31(2) of the rules an application
for
condonation must be brought 14 days prior to the date of the hearing
on notice to other interested parties.
[19]
In
a case where the applicant has failed to comply with the fourteen
days requirement in instituting the rescission application
rule 35 of
the CCMA rules provides for condonation for such non-compliance. The
applicant is in that respect required to show good
cause for
non-compliance.
[20]
In
exercising the powers under rule 35 a Commissioner may act in such a
manner as he or she deems appropriate in the circumstances
of the
given case. This means that in certain circumstances a Commissioner
could consider an application for condonation even when
brought
orally on the day of the hearing depending on the circumstances of
the case. The principle that condonation can be considered
even where
no application has been made as required by the rules is based on
consideration set out in
Federated
Trust Ltd v Botha
[2]
(A)
in the following terms:
“
The
Court does not encourage formalism in the application of the rules.
The rules are not an end in themselves to be observed for
their own
sake. They are provided to secure the inexpensive and expeditious
completion of litigation before the Courts
”
[21]
In
Kloberie
v Absa Bank Ltd
,
[3]
the
court held that:
”
[11]
In
McGill
v Vlakplas Brickworks (Pty) Ltd
1981
(1) SA 637
(W)
at 643 the court held that the court may hear a condonation
application brought orally from the bar where the objection to the
application is technical and the other party(s) will not suffer
prejudice.”
[22]
The
approach that a Commissioner of the CCMA can dispense with the
requirements of the rules in relation to condonation without
a formal
application is informed by the very spirit of the LRA that requires
disputes to be dealt with expeditiously with minimum
legal
formalities. The approach is also informed by the well-known
principle that;
“
The
rules are not an end in themselves to be observed for their own
sake.”
[4]
[23]
It
has not been disputed that the rescission application was filed
outside the period prescribed by the CCMA rules neither has it
been
disputed that there was no application for condonation for such
application.
[24]
It
follows from the above that the issue which the Commissioner had to
determine before entertaining the merits of the rescission
application was whether the CCMA had jurisdiction to entertain the
matter in light of the application been made outside the time
frame
provided for in rule 32 of the CCMA rules.
[25]
It
is trite in our law that when a jurisdictional point is raised at any
stage of the proceedings, the forum ceased with the matter,
in this
instance the CCMA, must require the applicant to prove that that
forum has requisite jurisdiction to entertain the matter.
The same
approach applies even where it is the forum that becomes aware of the
jurisdictional point, in which instance the presiding
officer is
enjoined to call upon the applicant to prove that the forum has
jurisdiction.
[26]
In
conducting proceedings before them the CCMA Commissioners are given
very wide powers to conduct proceedings in the manner they
consider
in order to determine the dispute fairly and quickly. These powers
are subjected to the Commissioner having to deal with
the substantial
merits of the dispute with minimum legal formalities.
[27]
In
the present matter it could, on face value be said that the
Commissioner in adopting the approach as he did exercised the powers
under section 138 of the LRA. There are no records relating to both
the variation of the rescission proceedings. It is however
clear that
the Commissioner issue of condonation on the basis of the submission
made by the parties
[28]
The
applicant, having raised the issue of condonation, the second
respondent considered the condonation without necessarily the
third
respondent filing an application for that purpose. It would appear
that the rescission application was brought 18 days after
the
variation ruling which means it was four days late. In his founding
affidavit the employee states that he only became aware
of the
variation ruling on 07 October 2011 and thereafter launched the
rescission application on 13 October 2011. There is no mention
in the
parties respective affidavit as to how long was the delay in the
filing of the rescission application.
[29]
The
employee says that he did not receive the variation ruling because it
would have been served on his attorneys who has been instructed
to
handle his arbitration case by the legal insurance. His contention is
that their mandate was limited to dealing only with the
arbitration
proceedings and not the variation application.
[30]
The
issue to be determined in this matter is whether the Commissioner has
requisite jurisdiction to hear the rescission application
in light of
the preliminary point raised by the applicant.
[31]
The
rescission application seems to have been drafted by the applicant
himself. It follows that in considering his matter the Commissioner
was for that reason, required to adopt a more liberal approach in
dealing with it. It is trite that in a condonation application,
the
Commissioner is required to consider the degree of lateness,
explanation for the full period of the delay; the prospects of
success and the prejudice that the parties would suffer.
[32]
Accepting
that the discretion of the Commissioner to condone non-compliance
with the rules is wide and flexible one its exercise,
has to be
informed by several considerations, including ensuring fairness
prevails to both parties. In the circumstance of this
case it would
appear that in striking a balance between the interest of both
parties the Commissioner may have been influenced
by the
consideration of the period of the delay.
[33]
In
my view, having regard to the provision of the LRA that disputes must
be resolved expeditiously and with limited legal formalities,
the
Commissioner cannot be criticised for exceeding his powers. I am also
of the view that the reasons proffered by the Commissioner
at the
conclusion of his ruling cannot be said to fall outside the bounds of
reasonableness, as envisaged by Sidumo
[5]
and
recently affirmed in
Herholdt
v Nedbank Ltd
[6]
.
[34]
In
light of the above discussion, I find that there is no basis to
interfere with the decision of the Commissioner. Accordingly,
the
applicant’s application to review the Commissioner’s
rescission ruling stands to fail. I do not, however, believe
that I
should allow costs in the circumstance to follow the result.
Order
[35]
In
the premises, the applicant’s application to view and set aside
the rescission ruling made by the Second Respondent under
case number
GATW2990-11 is dismissed with no order as to costs.
Molahlehi, J
Judge of the Labour Court Johannesburg
Appearances:
For the Applicant: A P Brandmuller
For
the Respondent: In Person
[1]
Act 66
of 1995.
[2]
1978
(3) SA 645
654C-F.
[3]
[2013]
ZAGPJHC 208 (16 August 2013).
[4]
L
F Boshoff Investments (Pty) Ltd v Cape Town Municipality (2)
1971
(4) SA 532
(C) at 535 (last paragraph); Viljoen v Federated Trust
Ltd
1971 (1) SA 750
(O) at
754D-E;
Vitorakis v Wolf
1963 (3) SA 928
(W) at 932F-G.
[5]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC).
[6]
(2013)
34
ILJ
2795 (SCA).