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[2017] ZALCJHB 323
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Cylinder Heads for Africa (Pty) Ltd and Others v Motor Industry Bargaining Council and Others (JR1628/16) [2017] ZALCJHB 323 (7 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
No: JR 1628/16
In
the matter between:
CYLINDER
HEADS FOR AFRICA (PTY)
LTD
First Applicant
COMPONENTS
FOR AFRICA CC
Second Applicant
and
MOTOR
INDUSTRY BARGAINING COUNCIL
First Respondent
COMMISSIONER
SHAMIMA BHABHA N.O
Second Respondent
JOHN
TSUPI DIALE & 2 OTHERS
Third Respondent
Considered:
In Chambers
Delivered:
7 September 2017
JUDGMENT:
LEAVE TO APPEAL
MAKINTA
AJ
[1]
This is an applicationfor leave to appeal
against this Court’s judgment dated 26 May 2017, in
terms of which the
Court dismissed the applicants’ application
for the review and setting aside of the CCMA’s certificate of
non-resolution,
to the effect that the dispute remained unresolved as
on the 9
th
May 2016.
[2]
The applicants submit that this Court erred
in finding that a fifteen (15) weeks’ delay is excessive but
does not substantiate
this submission, except to say that, the law
prescribesthat the review application should be instituted within a
reasonable time,
and not within six (6)weeks.
[3]
What
the applicant fails to appreciate is that, it is trite law that, six
(6) weeks is regarded as the reasonable time intended
by the law.
[1]
[4]
The applicants submit that this Court did
not attach ‘
the necessary weight
to the prospects of success”
in
the applicants’ case, but does not address what those prospects
are.
[5]
The judgment is to the effect that the
issuance of a certificate of outcome has no legal significance, does
not in any way prejudice
the applicants, and is therefore not
reviewable. The applicants do not address this finding in their
application for leave to appeal.
[6]
If the issuance of the certificate is not
reviewable, then the applicants can never have good prospects of
success with having it
set aside.
[7]
The applicants raise errors allegedly
committed by the Court, but do not give facts on the basis of which
another court would find
that this Court erred.
[8]
As an example, the applicants contend that
this Court erred in finding that the certificate of non-resolution
has no legal significance,
but fail to state what its legal
significance is, if it has any.
[9]
The applicants contend that this Court
erred in finding that the issue of the lateness of the referral or
condonation can be raised
at the level after issuance of the
certificate, but do not explain why it cannot be raised. It is trite
that, before arbitration
or adjudication of any dispute that has been
conciliated upon, each party is entitled to raise any jurisdictional
issue one could
have raised at conciliation, as long as that issue
has not been determined by the commissioner before.
[10]
It should be noted that, the applicants’
application for review was against the issuance of the certificate of
non-resolution,
and not against the commissioner’s condonation
ruling. This is clear from prayers 1 to 4 of the Notice of Motion,
especially
prayer 1.
[11]
It is not this Court’s finding that
condonation can be considered at a later stage, but that if the issue
of the late referral
of the dispute has not been determined by the
conciliating commissioner, the issue can still be raised for the
arbitrating commissioner
to determine. It is only if there is a
ruling on condonation that the applicants can come to court to have
it reviewed and set
aside.
[12]
This Court is not persuaded that the
applicants have made out a case that anothe court would reasonably
arrive at a decision different
from that of this Court. Accordingly,
the application for leave to appeal stands to be dismissed.
[13]
In the promises, the following order is
made:
Order
1
The application for leave to appeal is
dismissed
2
There is no order as to costs.
_________________
E.S
Makinta
Acting
Judge of the Labour Court of South Africa
[1]
University
of Venda v Maluleke and Others
[2017] ZALCJHB 72; (2017) 38 ILJ 1376 (LC) (28 February 2017)
at para 7