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[2017] ZALCJHB 252
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Danone Southern Africa (Pty) Ltd and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2177/16) [2017] ZALCJHB 252 (30 June 2017)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
case
no: JR 2177/16
In
the matter between:
DANONE
SOUTHERN AFRICA (PTY) LTD
CAPACITY
OUTSOURCING (PTY) LTD
First
Applicant
Second
Applicant
And
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
MOHLALA,
A N.O.
CASUAL
WORKERS ADVICE OFFICE
CHET
CHEMICALS (PTY) LTD
POVEY
MULVENNA PLACEMENTS (PTY) LTD
T/A
KHAYA EMPLOYMENT SERVICES
GREYS
WESTERN STAR OUTSOURCING
GROUP
(PTY) LTD
DAWN
CARGO (PTY) LTD
MOLAETSA
WA BOTSHELO TRADING
AND
PROJECTS CC T/A CRE8WORK
MATOME
TLOUAMMA AND 291 OTHERS
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Fifth
Respondent
Sixth
Respondent
Seventh
Respondent
Eighth
Respondent
Ninth
to Further Respondents
Heard
:
20 June 2017
Delivered
:
30 June 2017
Summary:
CCMA
in
limine
proceedings
– misconduct by arbitrator – test for review – s
145 of LRA 1995 considered
CCMA process – entitlement or
bring application and locus standi – representative not
competent to bring application
– application fatally defective
CCMA
in limine
proceedings –
conduct by commissioner in coming to finding – commissioner
mero motu
making own enquiries without knowledge of parties –
conduct irregular
CCMA
in limine
proceedings –
consolidation of disputes – no proper basis for consolidation –
finding of commissioner irregular
Review of ruling – no basis
for ruling made – ruling reviewed and set aside –
substituted with determination that
application be dismissed
REASONS
SNYMAN, AJ
Introduction
[1]
This
matter came before me as an unopposed review application on 20 June
2017.  After considering the application papers, and
hearing
argument from Mr Snider for the applicants, I made the following
order:
1.
The
applicants’ review application is granted.
2.
The
ruling of the second respondent, arbitrator A R Mohlala, dated 22
September 2016, under case number GAEK 9832 – 15, is
reviewed
and set aside.
3.
The
ruling of the second respondent is substituted with a ruling that he
application brought by the third respondent, Casual Workers’

Advice Office, is dismissed.
4.
There
is no order as to costs.
5.
Written
reasons for this order will be handed down on 30 June 2017.
’
This
judgment now constitutes the written reasons as contemplated by
paragraph 5 of my order referred to above.
[2]
As
touched on above, the applicants’ review application arose from
a ruling made by the second respondent, as arbitrator,
following an
application brought by the third respondent, on behalf of a number of
individual employees at different employers,
against these employers,
which included the applicants.  In this application, the third
respondent sought to consolidate a
number of individual cases brought
on behalf of these employees against their respective employers, into
one dispute. The third
respondent also sought declaratory relief to
the effect that the dispute referred against each of these individual
employers be
declared to have been brought within the requisite time
limits, and thus no condonation was necessary. Alternatively, and if
the
disputes were out of time, the third respondent prayed that
condonation be granted.  The second respondent delivered his
ruling
in respect of this application by way of a written ruling
dated 22 September 2016, in which the second respondent first
consolidated
all the individual matters, and then also granted
condonation. This ruling led to the applicants’ review
application, which
has been brought in terms of Section 145 as read
with Section 158(1)(g) of the Labour Relations Act
[1]
(‘the LRA’).  I will now proceed to decide the
applicants’ review application, by first setting out the

relevant factual matrix.
The
relevant facts
[3]
As
stated above, this matter has as its origin an application brought by
the third respondent, and filed on 29 April 2016. The third

respondent purported to bring this application on behalf of the ninth
to further respondents (‘the individual respondents’).
It
must be re-iterated from the outset that the third respondent is not
a trade union established and registered under the LRA.
[4]
A
perusal of the application of 29 April 2016 immediately highlights
several difficulties with it.  It is signed by three unknown

signatories.  It is unsigned on behalf of the third respondent,
although it is reflected as being the representative bringing
the
application. The individual employees (‘individual
respondents’) that are a party to the application are not
identified
and listed in the application. There is also no proper
proof of service of this application.
[5]
The
application by the third respondent is supported by an affidavit
deposed to by one Ighsaan Schroeder (‘Schroeder’),
who
describes himself as the ‘co-ordinator’ of the third
respondent. According to Schroeder, the third respondent is
not
representing the individual respondents, but ‘assisting’
them in their various cases. Schroeder records that the
third
respondent has an interest in the matter because of its ‘purpose’,
which is to ‘
assist
and advice precarious workers to access their LRA rights
’
(sic).
[6]
In
the supporting affidavit, Schroeder simply identified a number of
individual cases before the CCMA, and asked that these cases
be
consolidated.  But no case of any kind is made out in the
affidavit as to why this should be done.  Schroeder then
deals
with the time limit issue, contending that the application is founded
on Section 198D (as read with Section 198A) of the
LRA, and that
based on his views of the provisions of this Section, the various
disputes have been referred to the CCMA in time.
[7]
The
first applicant (which I will refer to as ‘Danone’ in
this judgment), filed an answering affidavit to this application.

This answering affidavit was filed in respect of two of the
individual disputes sought to be consolidated by the third
respondent,
which disputes involved Danone.  Danone specifically
stated that the dispute described as ‘Matlakala and 20 Others’

under case number GAEK 9832 – 16 did not exist and explained
and justified in the answering affidavit why this was the case.
[8]
Danone
then dealt with the other dispute it was involved in, being the
dispute under case number GAEK 9832 – 15, and relating
to
‘Nkuna and 53 Others’.  Danone explained that there
was an earlier dispute in terms of Section 198A of the
LRA that was
brought on 30 June 2015 under case number GAEK 5095 – 15 that
involved a number of employees described as ‘Bheki
Mdletsane
and 66 Others’. This dispute was ultimately settled on 6
October 2015, on the basis that the employees listed in
an annexure
to the agreement, as well as those employees earning below the BCEA
threshold and who did not perform temporary work,
shall be deemed to
be employees of Danone for the purposes of the LRA.
[9]
Danone
further explained that on 20 November 2015, the third respondent then
referred a dispute in terms of Section 198A to the
CCMA under case
number GAEK 9832 – 15, which is the dispute of ‘Nkuna and
53 Others’ referred to above.
A list of 54 individual
employees accompanied this referral.  At conciliation of this
dispute on 7 January 2016, 32 (thirty
two) of these individual
employees party to this referral withdrew from the matter, on the
basis that they were members of a trade
union, ITU, who would be
representing them in their own separate proceedings. This left
21(twenty one) individual employees still
party to the dispute. Then,
and following this development, Danone raised a point
in
limine
to the effect that the dispute was referred to the CCMA out of time,
no condonation was applied for, thus the CCMA lacked jurisdiction.

The point
in
limine
was upheld by commissioner Lance Cilliers, who issued a written
ruling that the CCMA lacked jurisdiction to entertain the matter.

This disposed of the matter where it came to these remaining
21(twenty one) individual employees.
[10]
The
32 (thirty two) individual employees that were members of ITU and
that withdrew from the matter on 7 January 2016, pursued their
own
separate dispute under case number GAJB 24207 – 15. This
dispute ultimately proceeded to arbitration on 13 April 2016,
but was
never arbitrated. Instead, on 13 April 2016, the dispute was settled
between the parties, by way of a written settlement
agreement. It was
inter
alia
agreed in this settlement that the same settlement agreement
concluded on 6 October 2015 in respect of the first dispute as set

out above, would equally apply to all the employees in this dispute.
This therefore disposed of this dispute as well.
[11]
The
upshot of the case presented by Danone in the answering affidavit was
simply that as at 29 April 2016 when the application was
brought,
there were no live disputes in existence against it, which could form
the subject matter of any of the relief sought in
the application of
the third respondent.
[12]
In
addition to the above defence on the merits, so to speak, Danone also
raised a number of points
in
limine
.
The first point was that the third respondent had no
locus
standi
to bring the application. The second point
in
limine
was that the individual employees were not identified or listed in
the application, and that the mandate from such individual employees

for the third respondent to bring this application remained unproven.
The third point
in
limine
was that insofar as the third respondent was asking for condonation,
it had made out no case for it.
[13]
The
other points
in
limine
raised by Danone in essence related to legal submissions in respect
of the provisions of Sections 198A and 198D of the LRA, and
are not
relevant for the purposes of deciding this review, considering the
basis on which I have decided this matter as elaborated
on hereunder
in this judgment.  I will therefore not deal with these issues
further.
[14]
The
other employers cited in the disputes in the third respondent’s
application also opposed the application.  Some of
these
employers were represented by Kirchmanns Inc attorneys, and they also
filed an answering affidavit.  In this answering
affidavit,
which is dated 31 May 2016, the same
in
limine
issues as raised by Danone has equally been raised, with an
additional point
in
limine
added to the effect that the notice of motion in the application was
fatally defective for want of compliance with Rule 31 of the
CCMA
Rules.  It was also specifically pointed out that the disputes
involving these other employers as well, as cited in the
third
respondent’s application, had already been dismissed by the
CCMA for want of jurisdiction, and no live disputes existed.

The actual rulings in these various matters were attached to this
answering affidavit.
[15]
All
the employer parties, including Danone, sought a determination from
the CCMA that the application brought by the third respondent
be
dismissed.
[16]
Schroeder
then filed a replying affidavit on 10 June 2016.  Despite all
the clear warnings dispensed to the third respondent
as contained in
the two answering affidavits with which the third respondent had been
served, no decisive action was taken by it
to remedy any of the clear
defects in the application. Also, none of the factual background
provided by the employer parties were
assailed. In fact, Schroeder
glibly states that despite the ruling by commissioner Cilliers
dismissing one of the Danone matters,
the third respondent ‘assisted’
the employees to ‘re-refer’ their dispute to the CCMA,
and this was the
dispute Danone had said did not exist.  But
even this version surely does not change the fact that the dispute
had actually
been disposed of earlier.
[17]
Schroeder
further said in reply that the third respondent did not represent the
individual respondents, and merely assisted them,
and that individual
respondents had signed the application. This statement is clearly not
true, as a simple reading of the application
shows that the
individual respondents did not sign it. Schroeder stated that he
would provide ‘proof of mandate’ at
the hearing of the
matter. But this mandate was never provided. Of relevance to this
review application, and finally, Schroeder
even says that where the
CCMA determines that it has no jurisdiction, it has not exercised its
‘statutory function’
and the dispute can simply be
referred to the CCMA all over again.
[18]
However,
and despite all of the above, the second respondent then proceeded to
grant the application brought by the third respondent.
Not only did
the second respondent consolidate the matters, but he also granted
condonation for any late referrals. It is clear
from the award that
the second respondent had very little or no regard to the pertinent
issues raised by the employers. The effect
of the ruling of the
second respondent also is that disputes already disposed of by the
CCMA are in essence resurrected. Hence
the review application.
Test
for review
[19]
In
this matter, the traditional review test as articulated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
does not find
application. This is because the review application in the current
proceedings concerns, at its core, two considerations,
being the
jurisdiction of the CCMA and the misconduct of the second respondent
as arbitrator.
[20]
Where
it comes to the review test in the case of a contention of misconduct
on the part of the arbitrator, Navsa AJ in
Sidumo
held that in light of the constitutional requirement (in s 33 (1) of
the Constitution) everyone has the right to administrative
action
that is lawful, reasonable and procedurally fair, and said that:
‘
the
reasonableness standard should now suffuse s 145 of the LRA
’
.
[21]
Specifically
therefore, the judgment in
Sidumo
does not contemplate that the review grounds as listed in Section
145(2)(a) are obliterated.
A
review application can still succeed without a review applicant
having to show that the outcome arrived at by the arbitrator is

unreasonable, where the review grounds are founded on the text of
Section 145(2)(a) itself.
[3]
For example, if an
arbitrator commits misconduct in the course of conducting the
arbitration, it does not matter whether the outcome
arrived at is
reasonable, as the misconduct itself vitiates the proceedings,
resulting in the award being set aside.
[4]
Another example is where the arbitrator had no power or jurisdiction
to conduct the arbitration, because, once again, this
in itself
vitiates the proceedings and causes any award made pursuant thereto
to be set aside on this basis alone.  In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[5]
the Court considered the review test postulated by
Sidumo
and
said:
‘…
.
Nothing
said in
Sidumo
means that the grounds of review in s 145 of the Act are obliterated.
The Constitutional Court said that they are suffused by
reasonableness. Nothing said in
Sidumo
means that the CCMA's arbitration award can no longer be reviewed on
the grounds, for example, that the CCMA had no jurisdiction
in a
matter or any of the other grounds specified in s 145 of the Act. If
the CCMA had no jurisdiction in a matter, the question
of the
reasonableness of its decision would not arise. Also if the CCMA made
a decision that exceeds its powers in the sense that
it is ultra
vires its powers, the reasonableness or otherwise of its decision
cannot arise.’
Similarly,
and
in
National
Commissioner of the SA Police Service v Myers and Others
[6]
,
the Court said the following:
‘
It
should be noted, however, that the standard of review as formulated
by the Constitutional Court in
Sidumo
does not replace the grounds of review contained in s 145(2) of the
LRA. The grounds of review referred to in s 145(2) still remain

relevant.
’
[22]
The
nature of the determination where it comes to review grounds as
articulated in the text of Section 145(2) was summarized in
Baur
Research CC v Commission for Conciliation, Mediation and Arbitration
and Others
[7]
as follows:
‘
What
this means is that where it comes to an arbitrator acting ultra vires
his or her powers or committing misconduct that would
deprive a party
of a fair hearing, the issue of a reasonable outcome is simply not
relevant. In such instances, the reviewable
defect is found in the
actual existence of the statutory prescribed review ground itself and
if it exists, the award cannot be
sustained, no matter what the
outcome may or may not have been. Examples of this are where the
arbitrator should have afforded
legal representation but did not or
where the arbitrator conducted himself or herself during the course
of the arbitration in such
a manner so as to constitute bias or
prevent a party from properly stating its case or depriving a party
of a fair hearing. The
reason for reasonable outcome not being an
issue is that these kinds of defects deprive a party of procedural
fairness, which is
something different from the concept of process
related irregularity. …
’
[23]
T
he
following
dictum
in
Naraindath v Commission
for Conciliation, Mediation and Arbitration and Others
[8]
is also relevant, where the Court said:
‘…
A
failure to conduct arbitration proceedings in a fair manner, where
that has the effect that one of the parties does not receive
a fair
hearing of their case, will almost inevitably mean either that the
commissioner has committed misconduct in relation to
his or her
duties as an arbitrator or that the commissioner has committed a
gross irregularity in the conduct of the arbitration
proceedings.
'
[24]
Next,
and when dealing with the issue of review grounds based on a
challenge of the jurisdiction of the CCMA, the Court in
SA Rugby Players
Association and Others v SA Rugby (Pty) Ltd and Others,
[9]
articulated the
review enquiry as follows:
‘
The
issue that was before the commissioner was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction
of the
CCMA. The significance of establishing whether there was a dismissal
or not is to determine whether the CCMA had jurisdiction
to entertain
the dispute. It follows that if there was no dismissal, then, the
CCMA had no jurisdiction to entertain the dispute
in terms of s 191
of the Act.
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court…’
[25]
I
have had the opportunity to deal with this kind of review test, in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[10]
,
and said:
‘
The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA proceedings, is in fact entitled, if not obliged,
to
determine the issue of jurisdiction of its own accord. In doing so,
the Labour Court is not limited only to the accepted test
of review,
but can in fact determine the issue de novo in order to decide
whether the determination by the commissioner is
right or
wrong.’
[26]
Against
the above principles and test, the conduct and ruling of the second
respondent, as complained of by the applicants, must
be considered.
Analysis
[27]
I
must state from the outset that I have a number of difficulties with
the conduct of the second respondent in this case, and in
particular
the manner in which he dealt with the application by the third
respondent.
[28]
The
first of these difficulties concern the manner in which the second
respondent dealt with the dispute of ‘Matlakala and
20 Others’
under case number GAEK 9832 – 16, which Danone had said did not
exist.  After perusing what is contained
in the affidavits and
hearing the parties’ arguments before him, the second
respondent, then, and clearly behind the back
of the parties, goes
off on his own mission of trying to find out what happened to this
dispute.  He digs up CCMA files, peruses
these files, and draws
conclusions, all without anyone even being aware that he is doing
this.  He accepts that no dispute
of ‘Matlakala and 20
Others’ under case number GAEK 9832 – 16, exists, but
then finds that this dispute actually
replaced the dispute under case
number GAEK 9832 – 15, which according to the second respondent
occurred because of the 32
individual employees in that matter having
withdrawn.  He arrives at this conclusion without alerting
Danone as to his investigation,
and affording it an opportunity to
answer what he had discovered.  This conduct of the second
respondent flies in the face
of the principle of
audi
alteram partem
.
In
AA
Ball (Pty) Ltd v Kolisi and Another
[11]
the Court said:
‘
As
stated above it is my view that the arbitrator committed a gross
irregularity by finding the existence of a procedural defect
in
proceedings which were otherwise fair, without the matter being
raised by either of the parties and did so after the proceedings
had
been concluded. I am also of the view that the commissioner also
exceeded his/her powers in addition to committing a gross

irregularity by disregarding the fundamental principle of audi
alteram partem …
’
[29]
The
aforesaid dictum in
AA
Ball
was applied in
Afrisix
(Pty) Ltd t/a Afri Services v Wabile NO and Others
[12]
as follows:
‘
I
agree with Ms
Groenewald
,
who appeared for applicant, that in basing his finding on an issue
applicant did not raise during the arbitration proceedings
first
respondent's conduct constituted a gross irregularity and he also
committed gross misconduct. Moreover, first respondent
did not raise
this point as a concern and invite the parties to address him on it.
For this reason, applicant did not lead evidence
on this point, for
it was not made aware that first respondent would make a finding on
this issue. In this regard, first respondent
failed to observe the
audi alteram partem rule. …
’
[30]
The
conduct of the second respondent I have set out above, where it comes
to his findings in respect of the dispute relating to
‘
Matlakala
and 20 Others’, is clearly misconduct in respect of the
conducting of the arbitration proceedings, and violates
the principle
of
audi
alteram partem
.
As such, it must be reviewable.
[31]
In
any event, this reasoning of the second respondent where it comes to
the case of ‘Matlakala and 20 Others’ is complete

nonsense, and entirely irrational.  The dispute under case
number GAEK 9832 – 15 from which the 32 ITU members withdrew

actually proceeded further where it came to the remaining 21
employees, and this dispute was disposed of by commissioner Cilliers

on 7 January 2016.  How the dispute of ‘Matlakala and 20
Others’ could then replace that dispute, is beyond
comprehension.
And further, the second respondent never
addresses the concern of Danone that this alleged referral was not
even served on it.
Accordingly, and despite the principle of
audi
alteram partem
being flouted, even the conclusion that the second respondent comes
to in this regard, on his own, is entirely unsustainable, and

consequently also reviewable on this basis.
[32]
The
undeniable evidence before the second respondent was that all the
disputes involving the employees of the applicants had been
finally
disposed of by the time the third respondent brought the application
on 29 April 2016.  There was no longer any live
dispute in
existence between the parties, and the disputes were
res
judicata
.
The application should have been dismissed on this basis alone.
The second respondent failed in his duties as arbitrator
and
misdirected himself in not doing so. Worse still, the second
respondent seemed not to have considered this critical issue at
all.
In
MEC
Department of Education, KwaZulu-Natal v Khumalo and Another
[13]
,
the Court said:
‘
Res
judicata literally means "a matter already judged"; the
doctrine is that the matter cannot be judged again. This is
a
presumption founded on public policy requiring litigation not to be
endless, to be in good faith and to prevent the same claim
being
demanded more than once.
'
[33]
What
the third respondent was in effect trying to do with its application,
was to circumvent the consequences of
res
judicata
,
considering that all of the disputes forming the subject matter of
the application having been earlier disposed of by the CCMA.
In
other words, it was clearly a stratagem designed to revive that which
had been dealt with and disposed of, but now under the
guise of
consolidation and condonation.  In
National
Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others
[14]
the Court dealt with the very same kind of stratagem, but in that
case the trade union sought to use a joinder application to achieve

this objective.  Writing for the majority, Zondo J (as he then
was), held:
[15]
‘
The
answer is that the union realised that the first referral did not
include any dismissal dispute between Intervalve and its former

employees or between BHR and its former employees and this meant that
the Labour Court would not have jurisdiction to adjudicate
those
dismissal disputes. It was after the bargaining council had refused
condonation that the union thought of using the joinder
strategy to
try and bring the dismissal disputes involving Intervalve and its
former employees and BHR and its former employees
through the back
door into the trial proceedings relating to the dismissal dispute
between Steinmüller and its former employees.
This was a ploy by
the union to circumvent the decision of the bargaining council
refusing it condonation in respect of the dismissal
disputes
involving Intervalve and BHR.
’
The
comparison to the matter
in
casu
is immediately apparent.
[34]
It is
clear from the replying affidavit that the third respondent has
further tried to defeat being thwarted by the application
of the
res
judicata
principle, by saying that the CCMA had dealt with the earlier matters
on the basis of jurisdiction, that this meant that the CCMA
had not
decided the actual substance or merits of the cases, and it was thus
competent to refer those cases to the CCMA again.
A similar
kind of argument was dealt with in
Bouwer
v City of Johannesburg and Another
[16]
.
Zondo JP (as he then was), writing for the majority, held that:
[17]
‘…
In
motion proceedings the affidavits filed by the parties do not only
serve as pleadings but they also contain the evidence that
the
parties place before the court to enable the court to decide the
matter. The court decides the matter by either granting or
dismissing
the applicant's application. …
’
The
learned Judge concluded:
[18]
‘
If
I were to extract a principle from my approach to this matter, it
would be this: if in motion proceedings the parties have placed

before the court such evidence as they have chosen to place before it
and the matter has been argued and, thereafter, the court
issues an
order that the application is dismissed and the basis of that
decision is that the applicant failed to prove its case,
the judgment
or order of the court is a judgment or order on the merits of the
case and it is final and any attempt to institute
proceedings later
to effectively seek the same relief on the same cause of action would
properly be met by the special plea of
res
judicata
.
’
The
judgment in
Bouwer
in effect disposes of the argument of the third respondent referred
to above.
[35]
In
any event, it is entirely undesirable that a litigant brings one
claim after another based on in essence the same
lis
between the same parties, simply by rotating different possible
causes of action and processes to justify the same ultimate relief.

This principle is often also expressed as the ‘once and for all
rule’, and is nothing else but a manifestation of the
exceptio
res judicata
.
In
Evins
v Shield Insurance Co Ltd
[19]
,
the Court described the ‘once and for all rule’ as
follows:
‘…
.
it is a well-entrenched rule. Its purpose is to prevent a
multiplicity of actions and to ensure that there is an end to
litigation.
'
[36]
Therefore,
and what the second respondent was actually confronted with when the
application came before him, was relief sought in
respect of disputes
that were no longer live and had been disposed of.  On this
basis alone, the second respondent, had he
properly and rationally
discharged his duties, should have dismissed the application. This
issue was after all specifically pleaded
by Danone.  On this
basis as well, the second respondent’s ruling is unsustainable,
and falls to be reviewed and set
aside.
[37]
Turning
next to the defective nature of the application before him, the same
kind of criticism about the conduct of the second respondent
again
arises.  The second respondent paid scant attention to all the
issues raised concerning the defective application, the
lack of
locus
standi
of the third respondent, the identification of the individual
respondents that were party to the proceedings, and the lack of
mandate of the third respondent.  The second respondent does
touch on the issue of
locus
standi
,
and accepts that the third respondent did not represent the
individual respondents in the application and had no
locus
standi
to do so.  Once he had made this finding, it was incumbent on
the second respondent to have dismissed the application, for
the
reasons I will now elaborate on.
[38]
The
second respondent seems to accept that Rule 25
[20]
of the CCMA Rules (as read with Rule 35
[21]
)
gives him the discretion to allow anyone to represent a party before
the CCMA. Although the second respondent does not say so
directly,
one can only assume that he makes this reference to justify the third
respondent bringing, and then moving, the application
at the CCMA.
This reasoning of course is patently wrong. Rule 25 is prescriptive
as to who may represent parties before the CCMA.
These provisions
cannot be condoned under Rule 35. A party either qualifies to
represent another party under Rule 25 or does not.
There are no
exceptions. The third respondent does not qualify. That should be the
end of the debate.
[39]
Representation
in the context of Rule 25 does not just include appearing at the
CCMA. It includes all facets of representation,
which would include
the bringing of legal process such as the filing of applications. A
defect in this regard renders the proceedings
so brought, to be
nothing else but an irregular step.
In
Vac
Air Technology (Pty) Ltd v Metal and Engineering Industries
Bargaining Council and Others
[22]
the Court said:
‘…
.
papers before the Labour Court signed by a person who does not fall
within the permitted category are null and void, and proceedings

relating thereto are also null and void.’
The
Court concluded:
[23]
‘
A
labour consultant is not permitted to represent parties in terms of
the Act. It follows that any affidavits he deposed to
or any
correspondence he wrote, in the capacity of a labour consultant
representing a party, are null and void. The proceedings
are also
null and void.
’
[40]
Whilst
the judgment in
Vac
Air
dealt with the Labour Court Rules, I can see no reason why these same
considerations should not equally apply to the CCMA Rules.
I find
support for my views in this regard in the following
dictum
from the judgment in
Nduli
v SA Commercial Catering and Allied Workers Union
[24]
:
‘
In
the present matter and during the course of these proceedings it has
come to light that Sibiya who represented applicant at the

arbitration proceedings had no right of appearance at the
arbitration. …. Although none of the parties, including the
applicant,
was aware thereof should this court simply disregard such
a fact? I believe not. While I am prepared to accept that her
representation
could not have affected the outcome, the fact is that
the arbitration proceedings were tainted by an irregularity. Even if

I find that the irregularity did not prejudice the respondent and
that if I do not make the award an order of court applicant would
be
severely prejudiced I do not consider prejudice to be a relevant
factor.
I
must emphasize that it is clear from this
dictum
in
Nduli
that it does not matter if an opponent is prejudiced by the
irregularity or not. The mere existence of such an irregularity
renders
the proceedings defective, and by necessary consequence, the
application
in
casu
defective.
[41]
The
defective nature of the application is further compounded by the fact
that
none
of the individual respondents have been cited in, or identified in,
the application filed by the third respondent. They have
not deposed
to any confirmatory affidavits. The consequence of this is that they
cannot be considered to properly party to the
proceedings.  In
Librapac
CC v Moletsane NO and Others
[25]
the
Court said:
‘
The
new
Act
66 of 1995
, has a number of provisions which indicate that
greater clarity in respect of the parties is now required. There is
good reason
for this. A dispute comprises not only a set of averments
and submissions relating to issues. It comprises also the persons who

are parties to the dispute. Those who seek to be part of the dispute
resolution possibilities contained in the Act, must identify

themselves and declare their participation.
There
are compelling practical considerations underlying this. Where, for
instance, applicants are described merely as "union
A and X
others", who are not otherwise properly identified as parties in
the action, serious problems of locus standi emerge
in the event of
some individuals resigning from the union in the course of
pre-litigation periods or, by way of further example,
in the event of
the union in its own right electing not to conduct the litigation to
conclusion. That holds the potential of prejudice
for the individuals
concerned. It also contains potential prejudice for a respondent
party, who may seek counter-relief against
individuals or,
ultimately, relief by way of costs against them …
’
[42]
The
Court in
Candy
and Others v Coca Cola Fortune (Pty) Ltd
[26]
applied the
aforesaid
dictum
in
Librapac
,
and held as follows:
‘
I
will next turn to the issue of the individual applicants actually
being parties to these proceedings. I again refer to what I
have set
out above to the effect that entire citation of the applicants is
'Candy and 95 others' and that is it. There is neither
a list of
individual applicants nor any form of identification or description
of even who these individuals are. The point is how
would the
respondent even know who to deal with and whether these individuals
were even its employees? In my view, it was essential
for the
individual applicants to be properly cited and described in this
matter, especially as there was no trade union involved.
This entails
that the individual applicants must each be properly identified by
name and be listed as individual applicants, either
in the statement
of claim or as an annexure thereto. Any individual applicant not so
listed simply cannot be considered to be properly
a party to the
proceedings
.’
Similarly
in
casu
,
in the absence of any of the individual respondents being identified
in the application as being a party to the application, these

individual respondents simply cannot be considered to be participants
or parties in the third respondent’s application. Without
the
individual respondents as parties
per
se
,
and because the third respondent cannot rely on Section 200 of the
LRA as it is not a registered trade union
[27]
,
the third respondent’s application is simply not competent, and
as such, fatally defective. By failing to appreciate this,
the second
respondent committed a gross and reviewable irregularity.
[43]
Despite
Danone specifically calling for it, and Schroeder stating he would
provide it, no mandate was shown in terms of which the
individuals
who brought the application had been authorized by any of the
individual respondents to do so on their behalf. This
renders the
application to be an entirely irregular step, which cannot, as it
stands, be sustained.  It cannot assist the
third respondent to
simply say it was not the representative of the individual
respondents, considering that it was the third respondent
that filed
the application, deposed to the founding affidavit (without any
supporting affidavits from the individual respondents),
and then
deposed to a replying affidavit.   In
Candy
[28]
the Court said:
‘…
The
point is that Advocate
Phale
had ample opportunity, at any time before this matter was argued, to
provide proof of authority. …
’
The
Court concluded:
[29]
‘
In
the matter now before me, there are several difficulties. Firstly,
and as I have said, there are no powers of attorney. I repeatedly

asked Advocate
Phale
where the powers of attorney were, and despite initially conceding
that there was no proof of authority, he then changed his submission

to the effect that the letter of B W Mtsweni of 14 March 2014 also
properly served as proof of authority to act, which contention
I have
already touched on above. In addition to what I have already said in
this regard, I further conclude that there is simply
no merit in the
suggestion that the letter of 14 March 2014 constitutes proof of
authority because it does not even identify who
these individual
clients are that were supposed to have given authority. The simple
line in the letter of 'Kindly assist our abovementioned
clients in
the matter' can by no stretch of the imagination be considered to
constitute proof of a client authorising an attorney
to bring a case
on behalf of the client. In my view, and especially considering that
the matter concerned a large number of individual
applicants, a
legitimate proof of authority to act had to entail the provision of a
proper power of attorney or confirmatory affidavit
by each applicant
wishing to be a part of the proceedings, authorising B W Mtsweni
Attorneys to bring the Labour Court case on
their behalf and
declaring themselves as party to the case. …
In
the absence of powers of attorney or any alternative form of proof of
authority as contemplated by rule 7(1), the end result
has to be that
Advocate
Phale
has failed to establish the authority to act. That being the case, he
has been unable to show that either he or B W Mtsweni Attorneys
had
the right to bring the current proceedings on behalf of the
individual applicants to the Labour Court and therefore, by necessary

consequence, to serve and file the statement of claim. As such, the
statement of claim in itself has to be an irregular step.
’
[44]
Finally,
the third respondent has made out no case for consolidation in the
application. It simply baldly said it should happen.
Danone
specifically complained in its opposition to the application that no
such case had been made out. The second respondent,
however, without
considering any of the principles applicable to deciding whether or
not to grant consolidation, simply consolidates
all the disputes. In
Piner
v SA Breweries Ltd
[30]
Waglay J (as he then was) said:
‘…
For
the court to grant consolidation of separate actions, it need not
simply consider whether the balance of convenience may favour
such
consolidation, but go further and be satisfied that consolidation
will in no way prejudice the party or parties sought to
be joined.
See in this respect
New
Zealand Insurance Co Ltd v Stone
1963
(3) SA 63
(C)
at
63H. The prejudice must, however, be substantial; and in determining
whether or not the prejudice is substantial, one of the
issues that
the court is required to consider is whether the relief sought in
each of the separate actions which are sought to
be consolidated,
depends on the determination of substantially the same questions of
law and fact or not.
’
[45]
In
Twani
and Others v Premier of the Province EC and Others
[31]
the Court held:
‘
It
follows that
a
consolidation of actions will not be ordered if such would be
prejudicial or potentially prejudicial to any of the parties (see
Nel
v Silicon Smelters
(
Edms
)
Bpk
1981 (4) SA 792(A)
at 801D). …
The
onus rests on the applicants to satisfy the court that
the
consolidation
of
the actions is favoured by the balance of convenience and that no
party effected thereby will suffer prejudice (see
New
Zealand Insurance Co Ltd vs Stone and others
1963 (3) SA 63(C)
at 69B–C)
…’
[46]
Bearing
in mind the above principles, the third respondent thus needed to
make out a case in the application that it would be convenient
to
consolidate all the individual disputes into one matter.  In
this context, convenience does not just mean convenience to
the third
respondent or what the third respondent considers appropriate. More
is needed. There must be a balance drawn where it
comes to the
convenience of all the parties involved, including the Court. And
then the third respondents also had to address the
issue of
prejudice, in that it had to show that consolidation would not
substantially prejudice any of the parties. The third respondent
made
out no such case, and as a result, there was no basis upon which the
second respondent could have consolidated the disputes.
The second
respondent completely misdirected himself, and simply granted
consolidation for the asking. This is grossly irregular.
[47]
It
has been said that the issue of convenience in the context of
consolidation includes a consideration as to whether the facts
and
the substantive legal issues are the same.
[32]
Similarly, it has been held that consolidation would not be competent
if there is an issue of the adjudicating body lacking
the requisite
jurisdiction, where it comes to one of the disputes that is sought to
be part of the consolidation.
[33]
In
Twani
[34]
the Court held that
the ‘unknowns’ in the cases that are sought to be
consolidated were simply too great and this was
incompatible with the
requirement of convenience.  All of these considerations equally
work against consolidation
in
casu
.
There is no evidence of similar facts and similar substantive legal
issues in the various disputes. I also believe that there
are many
unknowns that could result from the consolidation. The various prior
in
limine
rulings of the CCMA is evidence of this. I am also convinced that the
applicants could be materially prejudiced by consolidation,
in that
its case could be contaminated by possible shortcomings in the cases
of the other employers, especially considering the
complexity of the
legal issues involved. Finally, there are undeniable problems with
jurisdiction.  Therefore, and on the
basis of the requirements
of convenience and prejudice, there is no basis for consolidation, in
any event.
[48]
In
the end, the
Labour
Court has a duty to supervise this kind of conduct by CCMA
commissioners.  In
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others
[35]
the Court said:
‘…
In
my view, … the arbitration proceedings must be lawful,
reasonable and procedurally fair, and that the Labour Court, in

exercising its powers in terms of s 145 of the LRA, is duty bound to
supervise the CCMA and the exercise of its arbitration functions,
so
as to ensure that this happens and this is indeed the case.
’
[49]
In
terms of this supervisory duty of the Labour Court over the
arbitration functions of the CCMA, it is important that irregular

practices or conduct of CCMA commissioners be highlighted and dealt
with, not only to ensure that the parties receive a fair hearing
and
a fair and proper determination of the issues brought to the CCMA to
decide, but also so that the CCMA can adopt policy measures
to remedy
or discourage same.
[36]
As said in
Sasol
Infrachem v Sefafe and Others
[37]
:
‘…
The
hearing must not only be fair, but must also be seen to be fair.
Anything less than that would not suffice. The remedy employed
must
cure the irregularity; it must restore the right. …’
[50]
In
summary, the manner in which the second respondent dealt with the
dispute of ‘
Matlakala
and 20 Others’
deprived
the applicant of a lawful, reasonable and procedurally fair hearing
of the issue it raised in this regard.  The situation
was
exacerbated by the manner in which the second respondent virtually
completely failed to address any of the objections raised
by the
applicants where it came to the defective nature of the application,
the fact that the disputes had actually been disposed
of, and the
complete failure of the third respondent to make out a case for
consolidation. This all constitutes misconduct by the
second
respondent as arbitrator as contemplated by Section 145(2)(a)(i) of
the LRA. The effect of this is that the ruling itself
is vitiated and
falls to be set aside.
[51]
Based
on my findings as set out above, I do not consider it necessary to
consider any of the other review grounds as raised by the
applicants,
and in particular whether a case for condonation has even been made
out by the third respondent, and whether its views
where it comes to
the application of Section 198A and 198D are indeed correct.
The second respondent’s ruling is vitiated
and rendered
reviewable for all the above reasons, without any of these
considerations having to be dealt with.
[52]
The
final question to determine is what to do next, with the ruling of
the second respondent having been reviewed and set aside.
The
simple reality is that no case for consolidation was made out in the
third respondent’s founding affidavit. Also, there
are simply
no live disputes left which could serve as the basis for the
application. The only proper option left in this instance
would be to
finally dismiss the third respondent’s application. In terms of
Section 145(4) of the LRA, I shall oblige and
substitute the ruling
of the second respondent, with a ruling that the third respondent’s
application be dismissed.
[53]
This
matter was unopposed, and accordingly no issue of costs arises.
[54]
It is
for all the reasons, supra, I made the order that I did on 20 June
2017 as set out in paragraph 1 of this judgment.
_____________________
S Snyman
Acting Judge of the Labour Court
Appearances:
For the Applicants: Adv A Snider
Instructed by: Webber Wentzel
For the Respondents: No appearance
[1]
Act 66 of 1995.
[2]
(2007) 28 ILJ 2405
(CC).
See also
Herholdt
v Nedbank Ltd and Another
[2013]
11 BLLR 1074
(SCA) at para 25;
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 14.
[3]
Section
145
(2)
reads: ‘A defect referred to in subsection (1), means- (a)
that the commissioner- (i) committed misconduct in relation
to the
duties of the commissioner as an arbitrator; (ii) committed a gross
irregularity in the conduct of the arbitration proceedings;
or (iii)
exceeded the commissioner's powers’.
[4]
Premier Foods
(Pty) Ltd (Nelspruit) v Commission for Conciliation, Mediation and
Arbitration and Others
(2017)
38 ILJ 658 (LC) at para 14.
[5]
(2008) 29 ILJ 964
(LAC) at para 101.
[6]
(2012) 33 ILJ 1417
(LAC) at para 41.
[7]
(2014) 35 ILJ 1528
(LC) at para 18.  See also
Chabalala
v Metal and Engineering Industries Bargaining Council and Others
(2014)
35 ILJ 1546 (LC) at para 13.
[8]
(2000) 21 ILJ 1151
(LC) at para 27.
[9]
(2008) 29
ILJ
2218
(LAC)
at paras 39 – 40.
[10]
(2013) 34
ILJ
2662 (LC) at para 22.
[11]
[1998] 6 BLLR 560
(LC) at 562F-G.
[12]
(2014) 35 ILJ 668
(LC) at para 23.  See also
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others
(2013) 34 ILJ 2347
(LC) at para 68;
Rambar
Construction (Pty) Ltd t/a Rixi Taxi v Commission for Conciliation,
Mediation & Arbitration & others
(2012)
33
ILJ
1911 (LC)
at
para
42
.
[13]
(2010) 31 ILJ 2657
(LC) at para 32.
See also
Dumisani
and Another v Mintroad Sawmills (Pty) Ltd (
2000)
21 ILJ 125 (LAC) at para 6.
[14]
(2015) 36 ILJ 363
(CC).
[15]
Id at para 137.
[16]
[2009] JOL 23913
(LAC).
[17]
Id at para 23.
[18]
Id at para 41.
[19]
1980 (2) SA 814
(A) at 835C-E.  See also
Janse
van Rensburg NO and Others v Steenkamp and Another; Janse van
Rensburg and Others v Myburgh and Others
[2009]
1 All SA 539
(SCA) at para 27;
Truter
and Another v Deysel
[2006] JOL 16961
(SCA) at para 22;
Symington
and Others v Pretoria-Oos Privaat Hospitaal Bedryfs (Pty) Ltd
[2005] 4 All SA 403
(SCA) at para 26;
Sgt
Pepper's Knitwear and Another v SA Clothing and Textile Workers
Union and Others
(2012)
33 ILJ 2178 (LC) at para 28.
[20]
The relevant part of the
Rule provides: ‘(1)(a) In conciliation proceedings a party to
the dispute may appear in person
or be represented
only
by
- …
(ii) any office bearer, official or member of that party's
registered trade union or registered employer's organisation
…
(b) Subject to paragraph (c), in any arbitration proceedings a party
to the dispute may appear in person or be represented
only
by
-
(i) a legal practitioner; or (ii) an individual entitled
to represent the party at conciliation proceedings in terms
of
subrule (1)(a) …’ (emphasis added).
[21]
Rule 35(1)
provides that: ‘
The
Commission or a commissioner may condone any failure to comply with
any provision of these Rules, on good cause shown’.
[22]
(2006) 27 ILJ 1733
(LC) at para 14.
[23]
Id at para 16.
[24]
(2001) 22 ILJ 198
(LC) at para 16.  See also
Davidson
and Others v Wingprop (Pty) Ltd
(2010)
31 ILJ 605 (LC).
[25]
(1998) 19
ILJ
1159 (LC)
at
para 43 – 44.
[26]
(2015) 36 ILJ 677
(LC) at para 31.  A similar approach was followed in
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v
Express Payroll CC
(2011)
32
ILJ
2959 (LC)
at
paras 29 – 30 and
36.
[27]
See
Candy
(
supra
)
at para 35.
[28]
(
supra
)
at para 17.
[29]
Id at paras 19 – 20.
[30]
(2002) 23 ILJ 1446
(LC) at para 4.  See also
SA
Commercial Catering and Allied Workers Union and Others v Southern
Sun Hotel Interests (Pty) Ltd
(2017) 38 ILJ 463 (LC) at para 2.
[31]
[2005] JOL 14256
(Tk) at page 6.
[32]
See
Radebe
and Others v Coronet Equities (Pty) Ltd
(2001)
22 ILJ 1677 (LC) at para 13.
[33]
See
Motaung
v Department of Education and Others
[2016]
JOL 35739
(LC) at para 9.
[34]
(
supra
)
at page 9.
[35]
(2013) 34 ILJ 2347
(LC) at para 37.  The judgment was referred to with approval in
Satani
v Department of Education, Western Cape and Others
(2016) 37 ILJ 2298 (LAC) at paras 21 – 22. See also
Deutsch
v Pinto and Another
(1997)
18 ILJ 1008 (LC) at 1011 and 1018;
Van
Rooy v Nedcor Bank Ltd
(1998)
19 ILJ 1258 (LC) at para 17.
[36]
Premier Foods
(
supra
)
at para 42.
[37]
(2015) 36 ILJ 655
(LAC) at para 54.