IN THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: J326/21
In the matter between:
THE UNIVERSITY OF SOUTH AFRICA Applicant
and
THE COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
WILLEM KOEKEMOER N.O. Second Respondent
PHUMLANI ZWELITHINI RAPHAEL ZWANE Third Respondent
Heard : 20 August 2024
Delivered: 03 January 2025 (This judgment was handed down electronically by
circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing -
down is deemed to be 10h00 on 03 January 2025 .)
JUDGMENT
2
NAVSA , AJ
Introduction
[1] The applicant (UNISA) , in Part B of its application , seeks an order to review
and set aside the jurisdictional ruling made by the second respondent
(Commissioner Koekemoer ).1 UNISA has sought condonation for the late
filing of its review application .
[2] UNISA’s condonation application and review application is opposed by the
third respondent (Mr Zwane).
[3] The jurisdictional ruling that forms the subject matter of the review application
was handed down on 6 December 2020. UNISA contends that the ruling did
not come to its attention until 2 February 202 1.
[4] In placing reliance on section 145 of the Labour Relations Act2 (the LRA) ,
UNISA asser ts that its review application was required to have been brought
within six weeks by 16 March 2021. UNISA brought its review application on
25 March 2021, and asserts that the degree of lateness , in those
circumstances, is minimal . UNISA contends further that it would be in the
interests of justice for condonation to be granted.
[5] Mr. Zwane , conversely, contends that it is highly unlikely that UNISA was
unaware of the jurisdictional ruling issue d on 6 December 2020 , and that he
would suffer prejudice were condonation to be granted .
[6] UNISA has demonstrated good cause for condonation to be granted , and
there is no material prejudice to Mr. Zwane . On the basis of the trite legal
principles governing applications for condonation, and in the exercise of this
1 In Part A of the application UNISA sought urgent relief that the arbitration proceedings set down for
hearing on 6 April 2021 under case no. GATW 2504 -20 (“unfair labour practice case”) and case no
GATW 8092 -20 (“unfair dismissal case”) be stayed pending the review in Part B of its Notice of
Motion. On 1 April 2021, the Honour able Justice Cele stayed the arbitration proceedings pending the
review in Part B.
2 No. 66 of 1995 .
3
Court’s discretion , condonation is granted , for the late delivery of UNISA’s
review application.
[7] In the jurisdictional ruling , under scrutiny, Commissioner Koekemoer found
that UNISA failed to establish res judicata and ruled that the CCMA has
jurisdiction to arbitrate upon the un fair dismissal dispute of Mr. Zwane.
Background and litigation history
[8] On 30 September 2015, Mr. Zwane was appointed as the Chief Financial
Officer for UNISA .
[9] A memorandum of agreement (agreement) was signed between UNISA and
Mr. Zwane . Of particular significance in the agreement , for purposes of the
review application , are clause 12 which deals with the termination of service ,
and clause 13 which concerns arbitration .
[10] Clause 12, termination of service, provides in Clause 12.4 for misconduct to
be dealt with in terms of Clause 13, the arbitration clause .
[11] Clause 13 of the agreement , in turn, provides for the submission to and
decision by arbitration of all disputes between the parties, in so far as it
relates to the interpretation or application of the agreement , the carrying into
effect of the agreement , any rights and obligations arising from the
agreement , and the termination or purported termination of the agreement .
[12] Clause 13.4 of the agreement provides that the arbitration shall be subject to
the arbitration legislation for the time being in force in the Republic of South
Africa.
[13] Clause 13.8 of the agreement , importantly, provides as follows:
“The decision of the arbitrator shall be final and neither party will have any
further recourse including but not limited to recourse at the CCMA, Labour
Court, High Court etcetera .’’
[14] Mr. Zwane accepts that an employment agreement existed between UNISA
and himself but denies that such an agreement contained a private arbitration
4
clause which ousts the jurisdiction of the Commission for Conciliation,
Mediation and Arbitration ( CCMA ). Before Commissioner Koekemoer , much
was made of a disputed copy of the agreement being provided to the CCMA
as opposed to the original version of the agreement.
[15] While employed by the University , the Companies and Intellectual Property
Commission (the CIPC) brought an application in the High Court, Pretoria to
have Mr. Zwane disqualified from serving as a Director and/or declared a
delinquent in terms of the provisions of the Companies Act3 (“the Companies
Act”) .
[16] On 8 August 2019 , the High Court , Pretoria per the Honourable Tuchten J
granted an order to such effect.
[17] UNISA contends that this ultimately set in motion , together with other alleged
infractions on the part of Mr. Zwane , a referral to private arbitration in terms of
Mr. Zwane’s contract of employment .
[18] Consequently, o n or about 9 October 2019, UNISA issued a notice of
arbitration to Mr. Zwane .
[19] On 21 October 2019, UNISA issued an amended notice of arbitration to
Mr. Zwane . UNISA indicated that the relief sought would include , amongst
others, that Mr. Zwane be declared to have committed gross misconduct
and/or to have committed a material breach of the terms of his contract of
employment.
[20] On 21 October 2019, Mr. Zwane was given a notice of intention to suspend
him and was given until 22 October 2019 to show cause why he should not be
suspended.
[21] On 22 October 2019 , the Vice -Principal and Vice -Chancellor of the University,
Professor Makhanya (Professor Makhanya) issued Mr. Zwane with a notice of
suspension .
3 No. 71 of 2008.
5
[22] On 17 January 2020, a pre -trial meeting was held between the parties before
Advocate Malowa (Malowa) who ha d been appointed as the private arbitrator.
The pre-trial minute records in clause 14 , that Mr Zwane accepted that the
forum had jurisdiction subject to the raising of points in limine by Mr. Zwane.
[23] Mr. Zwane contends that the private arbitration process was a forced one .
[24] On 5 February 2020, Mr. Zwane referred an unfair labour practice dispute to
the CCMA under case number GATW 2504 -20, in which he alleged , amongst
others , that he had been unfairly suspended . The unfair labour practice
dispute was set down for conciliation on 4 March 2020. It ultimately remained
unresolved , and a certificate of non -resolution was issued to that effect.
[25] On 18 May 2020 , Advocate Malowa handed down his findings together with
his reasons . Mr. Zwane was f ound guilty of six charges .
[26] On 28 May 2020 and after consideration of the aggravating and mitigating
factors submitted , Advocate Malowa found that an appropriate sanction would
be to dismiss Mr. Zwane from UNISA’s employment.
[27] Neither Advocate Malowa’s findings on the merits nor his findings on sanction
formed part of the material placed on record before Commissioner
Koekemoer in consideration of the jurisdictional point of res judicata raised by
UNISA . On 29 May 2020 , Professor Makhanya issued Mr. Zwane wi th a
formal letter of dismissal.
[28] On or about 3 June 2020 , Mr. Zwane referred an unfair dismissal dis pute to
the CCMA under case number GATW 8092 – 20 in which he alleged that his
dismissal was both procedurally and substantively unfair .
[29] On 21 September 2020, Mr Zwane filed a consolidation application in which
he sought to consolidate his unfair labour practice dispute and his unfair
dismissal dispute . Mr. Zwane requested that the two matters be heard on 22
September 2020.
[30] On 22 September 2020 , UNISA raised a point in limine , claiming that the
CCMA lacked jurisdiction . From the transcript of the CCMA proceedings on
6
22 September 2020 , Mr. Malule ke, a Senior Legal Advisor at UNISA , and on
its behalf , asserted t he following:
30.1 The matter had already been arbitrated before a private arbitrator
Advocate Malowa , who had dismissed Mr. Zwane .
30.2 There was a contract between UNISA and Mr. Zwane , and this contract
was the subject of contention during the private arbitration process.
30.3 Mr. Zwane’s complete signed contract was on his personnel file with
UNISA.
30.4 Clause 13 of the contract was read into the record by Mr. Malulek e.
30.5 Mr. Zwane is required to have brought a review application in respect
of the private arbitration award.
30.6 Following on from the private arbitration award a dismissal letter was
issued to Mr. Zwane .
30.7 He was uncertain if the CCMA had the documents that he had and
sought to place reliance on , namely the contract and the letter of
dismissal . If the CCMA did not, he sought an indulgence that they
should be filed with the CCMA in order for the jurisdictional point to be
properly ventilated .
[31] On 22 September 2020, Commissioner Koekemoer indicated to Mr. Maluleke
that the CCMA did not have the documents referred to by him and asked for
copies to be made available to the CCMA.
[32] On 22 September 2020, Mr. Zwane , in response to the jurisdictional point
raised, took issue with the copy of the employment contract that Mr. Malulek e
had read from . He took issue with its validity and called for the original
employment contract to be produced by UNISA . Mr. Zwane also disputed the
pre-trial minutes , and that he had been afforded an opportunity to raise the
preliminary points that he had wanted to. Mr. Zwane also repeated his
7
assertions that he had participated in the private arbitration process under
duress . Mr. Zwane was cross -examined by Mr. Malulek e.
[33] On 22 September 2020, Commissioner Koekemoer enquired into whether
there was an original version of the employment contract. Mr. Maluleke once
more re -iterated that the original version of the contract was in Mr. Zwane’s
personnel file , and that UNISA would make it available to the CCMA.
[34] On 30 September 2020, there was a further sitting at the CCMA in which
Commissioner Koekemoer referred to the directive that he had issued around
the contract of employment . Commissioner Koekemoer invited both parties
to make further oral submissions.
34.1 Mr. Maluleke, on behalf of UNISA, made submissions that there
had already been a private arbitration process which had
finalised the matter , and that the matter was accordingly res
judicata .
34.2 Mr. Maluleke made further submissions that UNISA had a copy
of the employment contract , and as the original contract could
not be located, a copy was able to be used and relied on by
UNISA in terms of the law of evidence .
34.2 Mr. Zwane stressed that the original contract of employment had
still not been provided by UNISA , now, over a week later.
[35] On 2 October 2020, Commissioner Koekemoer recorded that the parties had
submitted some documents via e -mail upon his request, but that various
relevant documents were still outstanding. Commissioner Koekemoer
recorded the following , concerning the point in limine , and issued a ruling in
the following terms:
‘Points in Limine
11. The respondent raised a point in limine claiming that the CCMA lacked
jurisdiction, as there is an agreed upon private arbitration clause
8
contained in the contract of employment and an award rendered in
terms of this clause, which award is final .
12. The applicant opposed these claims and submitted the contrary.
13. I ruled that the respondent should submit the originally signed contract
of employment and any additional documents the parties wish to
submit by 30 September at 09h00 to enable me to determine
jurisdiction …
Ruling
25. From the premises that the applicant will have to establish jurisdiction
as provided for in Rule 22 of the CCMA rules, case management is
directed to enrol the matter for an in limine hearing.
26. The parties are also referred to Rule 31 of the CCMA rules and is
directed to serve and file the jurisdictional points accordingly.’
[36] On 22 October 2020, Commissioner E Harmse (Commissioner Harmse)
issued a combined ruling for both the unfair labour practice dispute and the
unfair dismissal dispute .
[37] Concerning the unfair dismissal dispute Commissioner Harmse referred to
Commissioner Koekemoer’s ruling on 2 October 2020 . Commissioner
Koekemoer had instructed Mr. Zwane to bring a proper application in terms of
rule 31 , and that Mr. Zwane had not complied with that instruction . Mr. Zwane
was once more instructed by Commissioner Harmse, on this occasion, to
comply with rules 22 and 31 of the CCMA rules concerning jurisdiction and to
also address the question of consolidation of the two disputes .
[38] On or about 27 October 2020, Mr. Zwane brought the application concerning
jurisdiction in terms of rules 22 and 31 of the CCMA Rules .
[39] On 8 November 2020, this was met by UNISA filing a notice of exception and
a special plea , and on 10 November 2020 by UNISA filing a notice of
application to strike out . Answering affidavits and replying affidavits were also
9
exchanged between the parti es in the rule 22 application , with Mr. Zwane also
filing written submissions .
The 6 December 2020 jurisdictional ruling
[40] On 6 December 2020, Commissioner Koekemoer issued a jurisdictional ruling
in respect of the unfair dismissal dispute.
[41] Commissioner Koekemoer referenced the two occasions in which the
jurisdictional point of res judicata had been addressed by the parties, namely
on 22 September 2020 and 30 September 2020. He also referred to his ruling
on 2 October 2020, and the imposition of timelines by Commissioner Harmse
on 22 October 2020 , in respect of the rule 22 application.
[42] On 25 November 2020, when the matter was once more scheduled for an in
limine hearing and the parties were not in attendance, Commissioner
Koekemoer reconsidered his ruling of 2 October 2020, and due to apparent
ambiguities in his ruling of 2 October 2020 , rescinded, out of his own accord,
the 2 October 2020 ruling .
[43] Commissioner Koekemoer, having done so, then dealt with the point in limine
taking into consideration the testimony of Mr. Zwane on 22 September 2020 ,
and the submissions and evidence up to and including 30 September 2020.
He did not regard any pleadings or submissions delivered post 30 September
2020 due to objections raised by UNISA in the subsequent pleadings
[44] Commissioner Koekemoer in outlining the background to the dispute
accepted that there had been a hearing but stated that whether the hearing
amounted to a private arbitration in terms of the contract of employment
between Mr. Zwane and UNISA , remained an open question.
[45] Commissioner Koekemoer , in his analysis of the parties ’ respective
submissions , noted his concern that the original contract of employment
between the parties had not been presented, and that the question pertaining
to a valid arbitration clause remained open .
10
[46] Commissioner Koekemoer also took issue with the fact that neither the final
notice of private arbitration with the relevant terms of reference, nor the
signed private arbitration award itself was presented, and believed that it
would not be fair to uphold the plea of res judicata given the circumstances of
the case.
[47] Commissioner Koekemoer accordingly made the following ruling:
‘Ruling
36. The respondent failed to establish res judicata.
37. I herewith rule that the CCMA has jurisdiction to arbitrate upon this
dismissal dispute of the applicant.
38. Case management is herewith directed to schedule this matter before
another commissioner for arbitration as soon as possible.
39. Pertaining to the consolidation application the applicant delivered on
21 September 2020, I am not prepared to consolidate the two cases.’
Legal princip les and analysis
[48] The applicant has effectively raised five grounds of review in terms of the
reasonableness test as set out in Sidumo and another v Rustenburg Platinum
Mines Ltd and others4:
48.1 First, that the Commissioner exceeded his powers in finding that
the CCMA had jurisdiction in circumstances where the parties
agreed through a contract of employment that any misconduct,
including a termination, will be dealt with through private
arbitration.
48.2 Second, that the Commissioner committed a gross irregularity in
finding that only an original agreement could prove a valid
arbitration clause , in circumstances where a copy of the
agreement was before it and evidenced the arbitration clause .
4 (2007) 28 ILJ 2405 (CC).
11
48.3 Third, that the Commissioner misconducted himself or
committed a gross irregularity in making the jurisdictional ruling
before affording the parties the right to be heard .
48.4 Fourth, the Commissioner exceeded his powers by rescinding
his own ruling in circumstances where he was yet to assume
jurisdiction of the matter.
48.5 Fifth, the Commissioner rescinded his own ruling in
circumstances where none of the jurisdictional facts in section
144 of the LRA were met.
Jurisdiction ruling reviews
[49] It is trite that the CCMA and bargaining councils are not courts of law , and do
not enjoy the status of courts of law. As administrative bodies charged with
the execution of statutory functions, the jurisdiction of the CCMA and
bargaining councils are governed and constrained by the statute/s which
empower them .5
[50] In SA Rugby Players Association and others v SA Rugby (Pty) Ltd and
others6, the Labour Appeal Court stated this position as follows:
‘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 to be
decided by the Labour Court ….This means that, in the context of this case,
the CCMA may not grant itself jurisdiction which it does not have . Nor may it
deprive itself of jurisdiction by making a wrong finding that it lacks jurisdiction
which it actually has. There is, however , nothing wrong with the CCMA
enquiring whether it has jurisdiction in a particular matter provided it is
understood that it does so for purposes of convenience and not because its
decision on such issue is binding in law on the parties’
(Emphasis added)
5 SA Municipal Workers Union on behalf of Mgcineni v SA Local Government Bargaining Council
andothers (2024) 45 ILJ 2367 (LC) at para 15.
6 (2008) 29 ILJ 2218 (LAC) at para 40 .
12
[51] Administrative tribunals such as the CCMA cannot finally determine their own
jurisdiction , and their findings on jurisdictional facts are provisional, made for
the sake of convenience .
[52] UNISA seeks to have a jurisdictional ruling reviewed and set aside . The test in
reviewing a jurisdictional ruling is simply whether the arbitrator was right or
wrong, and not whether his or her conclusion was reasonable as set out in
Sidumo . There are as the Honourable van Niekerk J (as he then was) , aptly
puts it, ‘no shade s of reasonableness that enter the equation.’7
[53] The test in relation to jurisdictional findings in its simplest form, is one of
correctness, not reasonableness . 8
[54] A jurisdictional ruling is thus subject to review by the Labour Court on
objectively justifiable grounds. The test is whether, objectively speaking, the
facts which would give the CCMA jurisdiction to entertain the dispute existed.
9
[55] The Labour Court has stated that the Commissioner’s decision is of no real
consequence, as the Labour Court must decide the jurisdictional issue de
novo based on the record filed in the review proceedings.10
[56] The question of the record and what was placed before the Commissioner in
consideration of the jurisdictional point of res judicata , on the facts of this
case, takes on critical importance.
[57] The Labour Court has expressed the view that in deciding whether a
commissioner has exceeded his jurisdiction in making an award , the
7 Department of Public Works and another v Vukela and others (2022) 43 ILJ 2319 (LC) at para 31.
8 See also : Global Outdoors Systems v Du Toit and Others (2011) 32 ILJ 1100 (LC) at para 18; See
also CTP Ltd t/a Caxton Newspapers Division v Mphaphuli NO and others (2015) 36 ILJ 1042 (LC) at
para 16.
9 City of Cape Town v SA Municipal Workers Union on behalf of Jacobs and others (2009) 30 ILJ
1983 (LAC) at paragraph s 27 - 28 ; See also Phera v Education Labour Relations Council and others
(2012) 33 ILJ 2839 (LAC); See also De Milander v Member of the Executive Council for the
Department of Finance: Eastern Cape and others (2013) 34 ILJ 1427 (LAC) at para 24; Phaka and
others v Bracks NO and others (2015) 36 ILJ 1541 (LAC ).
10 Uber SA Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers and
others (2018) 39 ILJ 903 (LC) at paras 63 – 64; See also University of South Africa v Stapelberg NO
and others (2019) 40 ILJ 2610 at para 27.
13
reviewing court is not necessarily confined to the record of the arbitration
proceedings .11
[58] However, i n Phera v Education Labour Relations Council and others 12, the
Labour Appeal Court stressed that the question the Labour Court should
consider, when reviewing a Commissioner’s jurisdictional ruling , was:
‘….whether the material that was placed before the commissioner established
that the bargaining council had jurisdiction to entertain the dispute . The
starting point is the nature of the dispute….’
[Emphasis added]
[59] The general approach adopted by the courts, is to determine the jurisdictional
fact on the record which served before the arbitrator without being bound by
any of the findings made by the arbitrator in respect of the jurisdictional fact.13
[60] The nature of the dispute is that UNISA contends that the CCMA lacked
jurisdiction by virtue of a contract of employment wherein the parties agreed
that any misconduct will be dealt with through private arbitration . A private
arbitration award was handed down which is final and binding between the
parties.
[61] UNISA relie s on the principle of res judicata . If the principle applies , the
CCMA will not have jurisdiction as the unfair dismissal dispute , including on
the merits would have been finally determined. If, however, the principle does
not apply, the CCMA would have jurisdiction , with the unfair dismissal dispute
then being required to be enrolled for arbitra tion at the CCMA .
Res judicata
[62] Res judicata is available where another court (or tribunal) of competent
jurisdiction has already finally pronounced on the same issues between the
11 City of Tshwane Metropolitan Municipality v SA Local Government Bargaining Council and others
(2012) 33 ILJ 191 (LC) at para s 4 – 5; See also Independent Institute of Education (Pty) Ltd v Mbileni
and others (2013) 34 ILJ 1538 (LC) at para 9.
12 (2012) 33 ILJ 2839 (LC) at para 14.
13 Distinctive Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre (Motor Industry
Bargaining Council) and Others (2013) 34 ILJ 3184 (LC) at para s 74 – 75.
14
parties . Fundamentally, the previous judgment must have been given by a
competent court, the matter must have involved the same parties and must
have been based on the same cause of action with respect to the subject
matter or thing. 14
Evaluation
[63] It is the correctness standard that finds application in respect of the review of
the jurisdictional ruling dated 6 December 2020 .
[64] Private arbitration , as statutorily embodied in section 33 of the Arbitration
Act15, flows from the consent of the parties to the arbitration agreement , who
define the powers of adjudication .
[65] An arbitration agreement concluded in terms of the Arbitration Act has certain
consequence s. In terms of section 28 of the Arbitration Act , arbitration
awards are no rmally final and binding and not subject to appeal.
[66] UNISA sought to place reliance on a private arbitration clause in the
employment contract between the two parties , and yet the contract of
employment was never properly placed before the CCMA.
[67] The best evidence to have been produced would have been in the form of the
original contract of employment, but even on the copies that were adduced it
did not definitively settle the question whether there was a private arbitration
clause in the employment contract .
[68] The transcripts of the proceedings before the CCMA reveals that issues were
taken by Mr. Zwane with the contract of employment and that the existence
of a private arbitration clause in the contract was placed in dispute . Mr.
Maluleke, on behalf of UNISA , was required to have placed material on the
record before Commissioner Koekemoer in support of the defence raised of
res judicata .
14 National Education Health and Allied Workers Union on behalf of Kgekwane v Department of
Development Planning and Local Government Gauteng (2015) 36 ILJ 1247 (LAC) at para 26; See
also Nestle (SA) Pty Ltd v Mars Inc 2001 (4) SA 542 (SCA) at para 16 ; See also Democratised
Transport Logistics and Allied Workers Union on behalf of Tshiwili v Bidvest Services (Pty) Ltd t/a
Bidvest Prestige Cleaning Services (2023) 44 ILJ 2727 (LC) at para 11.
15 No. 42 of 1965 .
15
[69] Mr. Maluleke was afforded a number of different opportunities to provide the
original contract of employment reflecting the private arbitration clause , and
any other relevant documentation in support of the defence of res judicata .
The record of the proceedings before the CCMA reflect that these
opportunities were regrettably spurned by UNISA.
[70] UNISA seems to suggest that Commissioner Koekemoer did not afford the
parties the right to be heard, but this is directly contradicted by the record of
the proceedings at the CCMA. UNISA was afforded adequate and ample
opportunity to make submissions, to cross -examine Mr. Zwane, to provide
supporting documentation , and to make further oral submissions, in respect of
its jurisdictional point raised of res judicata.
[71] Even if regard is had to the submissions made on paper that were not taken
into consideration by Commissioner Koekemoer , which this Court, on the
authorities is entitled to do , UNISA did no more than file a notice of exception
and a special plea, a notice of application to strike out, and an answering
affidavit . UNISA did not take advantage of yet a further opportunity to place
new material before Commissioner Koekemoer on the res judicata point .
[72] UNISA’s submissions on paper did not move the needle any further towards
the CCMA’s jurisdiction being ousted . Fundamentally UNISA did not attach
the prior private arbitration award (on merits and sanction) that would have
proven the final pronouncement on the issue of Mr. Zwane’s misconduct and
supported its jurisdictional point of res judicata .
[73] It is difficult to understand why the final private arbitration findings on the
merits and sanction were simply not placed before Commissioner Koekemoer
by UNISA at any point in time , given that the defence of res judicata was
being relied upon by the institution.
[74] Critically, at no point was the final private arbitration findings on the merits or
on sanction part of the material that was placed before Commissioner
16
Koekemoer. The record reflects that the letter of dismissal was referred to and
placed before Commissioner Koekemoer. This was insufficient.
[75] The determination of the jurisdictional issue is the Labour Court’s to make.
[76] In the absence of and without a final private arbitration award (on the merits
and sanction) being part of the material that was placed before Commissioner
Koekemoer , the defence of res judicata raised by UNISA cannot succeed, and
it must then follow that the jurisdiction of the CCMA has not been ousted.16
[77] I am mindful that there does seem to be a private arbitration award , but this
material and evidence (only produced at the review stage ) was, inexplicably,
never placed before Commissioner Koekemoer . UNISA as pointed out earlier
in this judgment had more than ample opportunity to do so , and UNISA is
unfortunately the architect and author of its own misfortune. This Court is
bound by the law.
[78] Commissioner Koekemoer’s decision in relation to the jurisdictional point
raised by UNISA was thus correct and is upheld by this Court.
[79] In my view t he CCMA, on the objective facts, as well as on the material that
was placed before Commissioner Koekemoer , considering the applicable law,
does have jurisdiction to entertain Mr. Zwane’s unfair dismissal dispute.
Costs
[80] With reference to the issue of costs , this Court has a broad discretion to make
costs orders in accordance with the requirements of law and fairness .
[81] In my view , the interests of justice will best be served by making no order as
to costs.
[82] In the result, the following order is made:
Order
16 Johnson v Commission for Conciliation , Mediation and Arbitration and others (2005) 26 ILJ 1332
(LC) at parah 13.
17
1. The r eview application is dismissed.
2. There is no order as to costs.
_______________________
ZM Navsa
Acting Judge of the Labour Court of South Africa
Appearances:
18
For the Applica nt: Advocate Seshni Cooper
Instruct ed by: Diale Mogashoa Attorneys.
For the Third Respondent: Self-represented