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[2016] ZALCJHB 88
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Pikitup Johannesburg SOC Limited v Ntombela NO and Others (JR406/14) [2016] ZALCJHB 88; (2016) 37 ILJ 1199 (LC) (12 February 2016)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR406/14
In
the matter between:
PIKITUP
JOHANNESBURG SOC
LIMITED
Applicant
and
COMMISSIONER
STEPHEN NTOMBELA N.O.
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
&
ARBITRATION
Second Respondent
SAMWU
obo BLAKKIE & 5
OTHERS
Third Respondent
Heard
:
15 January 2016
Delivered
:
12 February 2016
Summary:
Application for review of CCMA ruling, dismissing rescission
application for lack of compliance with
CCMA directive to file
condonation application.
Held
that as per
PT Operational Services (Pty) Ltd v Rawu obo Ngwetsana
(JA7/11)
[2012] ZALAC 34
;
[2013] 3 BLLR 225
(LAC); 34 ILJ 1138 (LAC)
(27 November 2012), the Labour Appeal Court has already set out the
law as regards the nature of such
a ruling.
Held
by the LAC that where a rescission application which is out of
time, is not accompanied by the necessary application
for
condonation, the CCMA cannot exercise its powers, duties or functions
in terms of section 144 of the LRA, because the merits
of the
rescission application have not been heard;
Held
further by the LAC that the CCMA in those circumstances is therefore
not
functus officio
in dismissing the rescission application;
Held
that in the light of the above, there was consequently no need to
bring a review application.
Held
that the application for review is dismissed. There is no order
as to costs.
JUDGMENT
HARDIE,
AJ
[1]
This is an opposed application for review
brought in terms of section 145 of the Labour Relations Act 66 of
1995 (“the Act”)
on 12 March 2014, in which the Applicant
seeks to review and set aside the ruling of the First Respondent
(“the Commissioner”)
made on 14 February 2014, under the
auspices of the Second Respondent under CCMA case number GAJB 28986-
12.
[2]
The background to the ruling is as
follows. On 30 October 2013, the Commissioner had issued a
directive in which he ordered
the Applicant to do the following:
“
(i)
Within 14 days from the date of parties receiving this ruling, the
applicant must:
(ii)
File an application for condonation for the late filing of the
rescission application.
(iii)
Respond to the second point in limine raised by the Respondent.
(iv)
Cure the defect in relation to the conflicting dates at pages 12 and
13 of its founding
affidavit.
(v)
If within the period specified in paragraph (i) above the Applicant
does not comply,
the rescission application is
dismissed.”
[3]
On 14 February 2014, the following ruling
(which is being reviewed) was issued by the Commissioner:-
“
(i)
Due to the non- compliance of the Directive dated 30 October 2013,
the applicant’s
rescission application is dismissed.
(ii)
I make no order as to costs.
[4]
The Applicant’s grounds for seeking
to review the ruling are firstly, that it had filed a supplementary
affidavit which complied
with the directive issued on 30 October
2013, and secondly, that the Commissioner was not empowered to
dismiss the Applicant’s
rescission application simply as a
result of non- compliance with the procedural directive. He was
duty bound to have considered
that application on its merits.
[5]
The Third Respondent (SAMWU) in opposing
the review application, submitted that there is no basis to interfere
with the ruling as
on the basis of the material before the
Commissioner, there was no other decision that he could have reached
other than to dismiss
the application.
[6]
Quite why the Applicant brought the review
application in the first place, and SAMWU elected to oppose it, is
not clear, when the
law relating to the status of a rescission
application which is out of time and there is no application for
condonation accompanying
it, has been set out unequivocally by the
Labour Appeal Court in
PT Operational
Services (Pty) Ltd v Rawu obo Ngwetsana (JA7/11)
[2012] ZALAC 34
;
[2013] 3 BLLR 225
(LAC); 34 ILJ 1138 (LAC) (27 November 2012)
.
[7]
In the
PT
Operational Services (Pty) Ltd
judgment, the Labour Appeal Court was dealing with a similar CCMA
ruling, namely that of 12 August 2004, where Commissioner Cellier
had
dismissed an application for rescission of an award because it had
been filed late, and the applicant in the rescission application
had
not applied for condonation for that late filing.
[8]
In dealing with this ruling dated 12 August
2004, Musi, AJA held at paragraphs [37] and [38] as follows:-
“
[37]
To sum up. The commissioner could not consider the rescission
application which was out of time without an application
for
condonation. He could therefore not exercise his powers, duties
or functions in terms of section 144 (of the Act) because
a condition
precedent (condonation) has not been fulfilled. His order
dismissing the application was just another way of
saying I cannot
consider the application at this stage because there is no
application for condonation. Without such application
I have no
jurisdiction to exercise my powers in terms of section 144 of the
LRA.
[38]
I conclude that Cellier did not finally perform his statutory
function or duty in relation to the merits of the rescission
application on 12 August 2004. It cannot therefore be said that
he exhausted his powers and discharged his mandate in relation
to the
rescission application. The Court a quo erred in coming to the
conclusion that the ruling on 12 August 2004 rendered
Cellier functus
officio and that he could therefore not entertain the subsequent
applications for condonation and rescission on
26 February 2007.
There were proper applications before him. He applied his mind
and granted the applications.
It is not suggested that his
ruling should be reviewed and set aside on any other ground other
than him being functus officio.
The Court a quo’s order
relating to the ruling of 26 February 2007 ought to be set aside.”
[9]
The Labour Appeal Court has spoken clearly
on how the CCMA is to treat rescission applications which come before
the CCMA, which
are late, and unaccompanied by the requisite
applications for condonation. A CCMA commissioner cannot
consider the rescission
application unless the condition precedent,
namely an application for condonation has been considered and
granted. A CCMA
commissioner does not perform his statutory
function in terms of section 144 of the Act in relation to the merits
of the rescission
application until that condition precedent has been
met. Thus, it is not so that the Commissioner in this case,
“dismissed”
the review application- he could not have
really done so in terms of section 144 of the Act because the merits
of the rescission
application were not properly before him.
This should have been discerned by both the Applicant and the Third
Respondent
who were both legally represented from inception of the
review application. A simple application for re-enrolment by
the
Applicant to the CCMA, setting out the law as articulated in the
PT Operational Services (Pty) Ltd
judgement, should have sufficed to get
back into the game, without involving the Labour Court.
[10]
In order to ensure that the law as
articulated by the in
the LAC PT
Operational Services (Pty) Limited
judgment is properly complied with and implemented by the CCMA, the
Applicant is to ensure that this judgment together with the
PT
Operational Services (Pty) Ltd
judgment
is brought to the attention of the Director of the CCMA. CCMA
commissioners need to be trained to implement the
prescripts of the
PT Operational Services (Pty) Ltd
judgment, and to use the more
appropriate wording when a late rescission application unaccompanied
by an application for condonation
comes before them, namely “In
the absence of an application for condonation, I hereby strike the
rescission application from
the roll”. That way, the
ambiguity which the word “dismissal” may present, is
obviated.
[11]
It goes without saying, given what is
stated above, that this is not a case where either party is entitled
to their costs.
Both the Applicant and the Third Respondent
were legally represented, and empowered as they were, either party
should have stopped
this bus before it travelled this far.
[12]
I hereby make the following order:
1.
The Applicant’s review application is
dismissed.
2.
There is no order as to costs.
_______________________
Hardie, AJ
Acting
Judge of the Labour Court
APPEARANCES
For the Applicant:
F. A. Boda
Instructed
by:
Moodie and Robertson
For
the First Respondent:
J Malane
Instructed
by:
Cheadle Thompson & Haysom