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[2015] ZALCJHB 233
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation And Arbitration and Others (JR 1520/11) [2015] ZALCJHB 233 (4 August 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 1520/11
DATE: 04 AUGUST 2015
Not Reportable
NATIONAL UNION OF
MINEWORKERS
.................................................................
First
Applicant
NKOSI
LUCAS
............................................................................................................
Second
Applicant
And
COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER SS
MOLAPO
.............................................................................
Third
Respondent
STEFANUTTI
STOCKS
............................................................................................
Third
Respondent
Delivered: 4 August 2015
JUDGMENT
TLHOTLHALEMAJE, AJ
Introduction:
[1] This is an unopposed application in
terms of which the applicants seek to review and set aside the ruling
issued by the second
respondent (Commissioner) under case number
GATW9474-10 dated 15 April 2011. In his ‘ruling’, the
Commissioner dismissed
the applicants’ referral of an alleged
unfair dismissal dispute in their absence. The ruling also followed
upon the Commissioner’s
dismissal of the applicants’
objection to the respondent being represented by a member of an
employers’ association,
whom the applicants had contended did
not have locus standi.
[2] The review application was filed
and served on 4 July 2011. No opposing documents were filed by the
respondent. The applicants
had then filed an application to compel
the first and second respondents to comply in terms of the provisions
of Rule 7A (3) of
the Rules of the Court.
[3] On 24 August 2012, the applicants
filed an application to compel the first and second respondents to
comply with the provisions
of Rule 7A (2) and (3) of the Rules of
this Court.
[4] On 18 March 2013, the applicants
filed a Notice in terms of Rule 7A 8 (b) indicating that they stood
by the Notice of Motion.
The respondent still failed to oppose the
application. The second respondent had then filed an affidavit on 9
December 2013, indicating
that a record of proceedings was not
available.
[5] As appears from the ‘ruling’,
the dispute was dismissed without the hearing of the merits of the
matter after the
Commissioner had allowed a representative of an
employers’ association CTL Management Forum, to represent the
respondent
in those proceedings. On the applicants’ version,
they had then sought written reasons for the Commissioner’s
ruling
as they formed the view that the Commissioner had not applied
his mind to the provisions of Rule 25 of the Rules of the CCMA. The
Commissioner had declined to furnish such reasons.
[6] The applicants had also applied for
a postponement which was promptly refused. It is at that stage that
the applicant had then
left the proceedings, resulting in their
referral being dismissed.
[7] Ordinarily, in the light of the
applicants having walked out of the proceedings, the Commissioner was
entitled to view such
conduct as amounting to a waiver of the
applicants’ right to proceed with the matter, and was therefore
entitled to dismiss
it in their absence.
[8] The issue however does not end
there as before the Court is a review of the ruling insofar as it is
alleged that the Commissioner
had misconstrued and misapplied the
provisions of Rule 25 of the CCMA Rules in allowing an individual who
had no locus standi to
represent the respondent. To the extent that a
case has been made out as to the reason the ruling should be set
aside, and further
to the extent that the review application remained
unopposed, the following order is made;
Order:
i. The ‘ruling’ issued by
the second respondent on 15 April 2011 under case number GATW9474-10
is reviewed and set aside.
ii. The matter is remitted back to the
First Respondent to be heard de novo by a Commissioner other than the
Second Respondent.
iii. There is no order as to costs.
Tlhotlhalemaje, AJ
Acting Judge of the Labour Court of
South Africa
Appearances:
For the Applicant: Mr B Zwane (NUM
Official)
For the First Respondent: Mr Q
Donaldson of CTL Management Forum