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[2019] ZALCJHB 253
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Mafumba and Others v Commission for Conciliation Mediation and Arbitration and Others (JR2880/17) [2019] ZALCJHB 253 (2 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: JR 2880/17
In the matter between:
LUNGA
ALFRED MAFUMBA & 20 OTHERS
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
ELMIEN WEHNCKE
Second
Respondent
KIT
KAT GROUP
Third
Respondent
OUTSOURCING
FOR YOU
Fourth Respondent
Heard: 29 August 2019
Judgment
delivered: 2 September 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an unopposed application to review and set aside a ruling
made by the second
respondent on 8 December 2017, when she refused to
condone the late referral of a dismissal dispute.
[2]
The ruling records the evidence and argument. In essence, the
arbitrator concluded
that the delay, which she computed as 195 days,
was excessive and that the explanation for the delay was
unsatisfactory.
[3]
The essence of the review application is that the delay was not 195
days; the applicants
compute the delay as 53 days. In a supplementary
affidavit filed in the review proceedings, together with the referral
form, the
applicants challenge the computation of the period of
delay. I am satisfied that the affidavit calls into question the
period of
delay referred to in the ruling under review. The
difference between the delay computed by the arbitrator and that by
the applicants
is significant, and may well have a bearing on the
outcome of the application for condonation.
[4]
In my view, the interests of justice require that the ruling be
reviewed and set aside,
and that the matter be remitted to the CCMA
for rehearing before a different commissioner. To be clear, my
decision is based solely
on what appears to be a genuine dispute as
to the extent of the delay, and none of the arbitrator’s other
findings are the
basis for my decision to set aside the ruling.
I make the following order:
1.
The ruling issued by the second respondent
on 5 November 2017 is reviewed and set aside.
2.
The matter is remitted to the second
respondent for rehearing before a commissioner other than the second
respondent.
Andre van Niekerk
Judge
REPRESENTATION
For the applicant: Ndumiso Voyi
Attorneys