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[2019] ZALCJHB 249
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MLZ Construction and Supplies CC t/a Procam v Mafujane NO and Others (JR2238/16) [2019] ZALCJHB 249 (19 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
2238/16
In
the matter between:
MLZ CONSTRUCTION AND
SUPPLIES CC T/A PROCAM Applicant
and
t.s.
mafujane
n.o. First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
TARYN
SYDNE
MAKINGS Third
Respondent
Heard
:
28
February 2019
Delivered
:
19 September 2019
Summary:
Application to review and set aside condonation ruling to rescission
application.
JUDGMENT
RAPHULU,
AJ
[1]
This is an application by the Applicant to review and set aside the
First
Respondent’s condonation ruling to the late filing of the
Applicant’s rescission application.
[2]
As required, prior to dealing with the rescission application, the
First
Respondent considered the condonation application to the
rescission application and held that condonation should not be
granted.
As a consequence of this, if followed that the Second
Respondent had no jurisdiction to consider the rescission
application.
[3]
In
assessing a condonation application, it is trite law that the degree
of lateness of the pleadings in question (in this case the
rescission
application), as well as the prospects of success on the main matter
(in this case the rescission application), are
material
[1]
.
[4]
In the present case, instead of examining the degree of lateness of
the
rescission application, the First Respondent focused on the
lateness of the condonation application.
[5]
In respect of prospects of success, the First Respondent held that
the
Applicant had not made representations in this respect. In doing
this, the First Respondent disregarded the fact that the Applicant’s
condonation application specifically prays at paragraph 7.3 thereof,
that the contents of the founding affidavit to the rescission
application be incorporated as part of the condonation application
and that same should be regarded as specifically repeated in
the
condonation application.
[6]
In light of the above, it is apparent to me that the First Respondent
committed a material irregularity, and failed to consider material
information, and that this led to the condonation application
to the
rescission application not being properly considered.
[7]
In the results, I make the following order:
Order
1.
The
condonation ruling is reviewed and set aside.
2.
The
matter is remitted back to the Second Respondent for proper
determination of the dispute before a commissioner other than the
First Respondent.
_______________________
L. Raphulu
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Snyman Attorneys
For
the Third Respondent: Taryn Sydne Makings
[1]
See:
Melane
v Santam
1962 (4) SA 531
(A).