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[2016] ZALCJHB 16
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Sibiya v Mujlima NO and Others (JR1047/12) [2016] ZALCJHB 16 (27 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1047/12
Not Reportable
In the matter between:
JOSEPH MAIMAU SIPHO
SIBIYA
Applicant
and
DENGA MUJLIMA
N.O.
First
Respondent
THE GENERAL PUBLIC
SERVICE
SECTORAL BARGAINING
COUNCIL
Second Respondent
MINISTER OF
LABOUR
Third
Respondent
Heard:
19 November 2015
Delivered:
27 January 2016
REASONS
FOR JUDGMENT
Molahlehi, J
Introduction
[1]
On
19 November 2015, this Court made an order dismissing the applicant’s
review application. In the application the applicant
sought to have
the rescission ruling made by the first respondent under case GPBC
2240/2010 reviewed and set aside. The reasons
which were promised are
set out below.
Background
[2]
The
applicant who was prior to his dismissal employed by the third
respondent as an Occupational Health Inspector was dismissed
on
allegations of misconduct related to bribery. Following his
dismissal, he referred the dispute to GPSSBC. The matter was referred
to conciliation where it remained unresolved and was later referred
to arbitration.
[3]
The
applicant failed to attend the arbitration hearing. His unfair
dismissal claim was accordingly dismissed. He then applied
for
the rescission of the dismissal ruling on the ground that he did
attend at the venue where the hearing was to have been conducted
but
arrived late because of traffic and problem of finding parking.
Aggrieved by the outcome of the rescission application he instituted
the present proceedings.
Grounds of review
[4]
The
applicant in his founding affidavit in the present matter raised
several grounds of review the essence of which is that the
Commissioner committed misconduct and gross-irregularity
The Commissioner’s
ruling
[5]
The
arbitrator dismissed the applicant’s rescission application on
the ground that it was filed outside the 14 days prescribed
by the
rules of the bargaining council and that it was not accompanied by an
application for condonation.
Evaluation
[6]
It
is common cause that the rescission application was never served on
the third respondent. In this respect it was conceded on
behalf of
the applicant that the fax number, 0152958565, where the rescission
application was supposedly served on the third respondent
belongs to
the applicant. This means the rescission application was never
properly placed before the first respondent. It was for
this reason
that the review application was dismissed.
[7]
As
concerning the issue of cost, it was not disputed that the defect in
the application was brought to the attention of the applicant
long
before the hearing of this matter but notwithstanding that the
applicant persisted with the application. It was for this reason
that
I saw no reason in fairness and law why the costs should not follow
the results.
Order
[8]
It
was for the above reasons that the following order was made:
1.
The
review application is dismissed with costs.
________________
E, Molahlehi
Judge
of the Labour Court of South Africa