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[2020] ZALCJHB 40
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LA Crushers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2275/11; J1960/17) [2020] ZALCJHB 40 (14 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 2275/11
J
1960/17
In
the matter between:
LA
CRUSHERS (PTY) LTD
Applicant
and
THE COMMISSION FOR
CONCILATION
MEDIATION
AND ARBITRATION First
respondent
COMMISSIONER
JOSIAS MAAKE N.O Second
Respondent
NUM
obo MOLIMI RICHARDS AND 3 OTHERS Third
Respondent
Heard:
31 October 2019
Delivered:
14 February 2020
JUDGMENT
LALLIE,
J
[1]
This is an application to reinstate an application for review which
had been withdrawn
by the applicant. The third respondent filed its
answering affidavit five months late. The applicant objected to the
delay but
the third respondent failed to file a condonation
application. The applicant argued that the answering affidavit should
be disregarded
and the application heard on an unopposed basis.
Counsel for the third respondent conceded that the answering
affidavit was not
properly before Court. In light of the concession,
the application will be decided on the unopposed basis.
[2]
The individual third respondents were employed by the applicant. They
were dismissed
for misconduct and referred an unfair dismissal
dispute to the first respondent which in an award issued on 26
September 2011,
found their dismissal unfair and ordered the
applicant to pay them compensation. The applicant launched an
application to have
the arbitration award reviewed and set aside. The
application was unopposed. It was set down for hearing on 23 February
2016 but
was withdrawn by the applicant before the matter was heard.
The reason for the withdrawal was that when the application was
launched,
the legal position was that arbitration awards prescribed
after three years of being issued.
[3]
The legal position changed when the Constitutional Court in
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
and Others
[1]
held that arbitration awards did not prescribe as the Prescription
Act
[2]
is not applicable to
matters pursued under the Labour Relations Act (LRA)
[3]
.
The change nullified the basis of the applicant’s decision to
withdraw its review application necessitating the application
at
hand.
[4]
The review application was unopposed and the applicant’s
withdrawal was
bona fide
based on the legal position
prevailing at the time. A decision reinstating the review application
will not prejudice the third respondent
which elected not to enforce
the arbitration award for three years after it had been issued.
[5]
The right to be heard finds protection in the Constitution
[4]
and cannot be denied easily. As the application for review was not
considered and brought to finality on its merits, I could find
no
impediment to have the review application reinstated particularly
when the circumstances of this case including the reason for
its
withdrawal are taken into account.
[6]
In the premises, the following order is made:
Order
1.
The application for review under case number JR 2275/11 is
reinstated.
________________________________
Z Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: C.J Geldenhuys of
Geldenhuys @ Law Incorporated
For
the Respondent: Advocate M. Maholo
Instructed
by: E.S
Makinta Attorneys
[1]
(2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC).
[2]
Act 68 of 1969
[3]
Act 66 of 1995
[4]
Act
108 of 1996.