IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case N o:JR1454/2022

In the matter between

NUMSA OBO D PLAATJEI AN D 61 OHERS Applicant
and
RME TRANSNET First Respondent

ANTONY OSLER N.O. Second Respondent

COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION Third Respondent
Heard: 10 December 2024
Delivered: 14 January 2025
Summary: The review application to set aside the dismissal of the
applicants’ re- enrolment application is granted. The dismissal of the re -
enrolment application had effectively prevented the arbitration from being
rescheduled, prematurely terminating the process. The matter is remitted to the same Commissioner, as Commissioners are obligated under section 138(1) of the Labour Relations Act to address the merits of disputes. This obligation is particularly significant given that the arbitration was already underway and
part-heard.

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JUDGMENT


SWARTZ AJ
Introduction
[1] This is an unopposed review application. The applicants seek to review and
set aside the C ommission for C onciliation, Mediation and A rbitration (CCMA) ruling
under case number NC1596- 18 dated 25 May 2022. The ruling in question
dismissed the applicants’ request for re -enrolment. The applicants are now seeking
an order to remit their part -heard dispute to the CCMA for final adjudication, ensuring
a fair and complete resolution of the matter.
[2] This matter has a protracted and regrettable history at the CCMA, which
underscores the need for a concise judgment, even though the matter was
unopposed.
Factual background
[3] The arbitration of the applicants’ unfair dismissal dispute commenced on 21
January 2019 and continued on 6 and 7 March 2019. It is evident from the transcripts that a fair amount of evidence was traversed before the second respondent, Commissioner Osler. However, the arbitration was never finalised.
[4] There are two rulings attached to the founding affidavit. The continuation
ruling dated 17 September 2021 and the re- enrolment ruling dated 25 May 2022 .
Both rulings were issued by Commissioner Osler. It is the re- enrolment ruling that is
sought to be reviewed and set aside.

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[5] The history of this matter is not clear from the founding affidavit however the
continuation ruling states in paragraph 2 that: “ It is not necessary to set out here the
long and convoluted history of these arbitration proceedings. Suffice it to state that,
after various rulings during the conduct of the arbitration, the case was struck off the
roll on 15 August 2019. The same ruling provides that, once various conditions have
been complied with, the applicant will be entitled to proceed with a properly
motivated application to re- enroll the matter ”. Paragraph 3 of the same ruling states
that: “Notwithstanding the non- enroll ed status of the case, the arbitration was
erroneously set down for continuation on 8 and 9 September 2021, and I agreed to
entertain the matter in the interest of fairness… ”
[6] The continuation ruling concludes by prescribing certain conditions that had to
be met by the applicants whereafter the ruling then prescribes the applicants to bring
a re-enrollment application in order for Commissioner Osler to determine whether the
arbitration would continue.
[7] The re- enrolment ruling states in paragraph 8 states that: “ Thereafter, the
outstanding compliance and the present application was handled relatively quickly in
the hands of the applicant’s new attorney of record, culminating in the present
application on 29 September 2021. In paragraph 9, Commissioner Osler attributes
the delay of the continuation of the arbitration to the applicants stating that: “ The
arbitration in this matter was thus effectively stalled from 11 March 2019 until 29 September 2021, a per iod of just over two years and six months. This is an
extensive period that requires a proper explanation” .

[8] The re- enrolment ruling does not clearly indicate whether Commissioner Osler
was satisfied with the completion of the pre- arbitration minutes. However, it is
evident that he found the applicants' various explanations for the delay in arbitration
unconvincing and ultimately dismissed their re- enrolment application.
The Applicants’ Submissions

[9] The applicants argue that Commissioner Osler’s ruling effectively deprives
them of their right to have the arbitration re- enrolled and brought to a conclusion.
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They assert that this decision undermines and directly conflicts with sections 136
and 195 of the Labour Relations Act (LRA),1 which safeguard their entitlement to a
fair and final resolution of disputes.

Reasoning/Merits
[10] The Constitution guarantees the right to fair labour practices.
2 The LRA gives
effect to those rights. One of its primary objects is to promote the effective resolution of labour disputes.
3 In order to be effective, dispute resolution should be speedy ,4
and both time and legal costs should be minimised. In National Education Health and
Allied Workers Union (NEHAWU) v University of Cape Town and Others5 the
Constitutional Court recognised this principle and said:
‘By their very nature labour disputes must be resolved expeditiously and be
brought to finality so that the parties can organise their affairs accordingly.
They affect our economy and labour peace. It is in the public interest that
labour disputes be resolved speedily …’
[11] The dismissal of the applicants’ re- enrolment application effectively prevents
the arbitration from being rescheduled, thereby prematurely terminating the process. As a result, the merits of the case remain unexamined and unresolved, denying the applicants the opportunity for a fair adjudication.
[12] The question to be answered is whether Commissioner Osler had the power
to terminate the dispute without having concluded the arbitration.
[13] Section 138(1) of the LRA state that:
‘(1) The commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the
minimum of legal formalities. ’ (own emphasis)

1 Act 66 of 1995.
2 Constitution s ection 23.
3 LRA s ection 1(d)(iv).
4 CWIU v Darmag Industries (Pty) Ltd [1999] 8 BLLR 754 (LC) ; [1998] ZALC 78 at para 29.
5 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC) at para 31.
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[14] While I empathise with Commissioner Osler’s concerns about delays in filing a
pre-arbitration minute, he was nonetheless obligated under section 138(1) of the
LRA to consider the merits of the dispute. This duty is especially critical given that
the arbitration had already commenced and was part -heard.

[15] In State Information Technology Agency SOC Ltd v Commission for
Conciliation, Mediation and A rbitration6 Moshoana J noted that section 138(1)
“somewhat guarantees parties at arbitration a fair hearing” and that a commissioner
who does not give parties a fair hearing “ commits a gross irregularity ”.

[16] In Oakfields Thoroughbred & Leisure Industries Ltd v McGahey and Others7
the court cautioned that, while an arbitrator has discretion as to how proceedings should be run, there should still be a semblance of procedural order reminiscent of a trial and, a n “unnecessarily crude application of arbitrator’s discretion” to determine
the appropriate procedure was found to be a reviewable irregularity.
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[17] Accordingly, I find the dismissal of the re- enrolment application, which
effectively deprives the applicants of concluding their dispute amounts to a reviewable irregularity.

Conclusion

[18] Mr Manasoe, representing the applicants, submitted that he has no objection
to the matter being remitted to the CCMA and for Commissioner Osler to preside over it once again.


6 [2019] 9 BLLR 962 (LC) ; [2019] ZALCJHB 287.
7 [2001] 10 BLLR 1147 (LC) ; [2001] ZALC 103 at para 25.
8 At par a 35 the court referred to Naraindath v CCMA above, Pick ’n Pay Supermarkets, Northern
Transvaal v CCMA (2000) 21 ILJ 234 (LC) at 240; Scholtz v Commissioner Maseko NO & Others
[2000] 9 BLLR 1111 (LC) at 1862; East Cape Agricultural Cooperative v Du Plessis & Others [2000] 9
BLLR 1027 (LC) at 1333 and 1341.
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[19] Although Commissioner Osler’s ruling is under review, it is important to
acknowledge that he is already seized with the matter and has a comprehensive
understanding of its background and history.
[20] In the circumstances, the following order is made:

Order
1. The ruling of the second respondent (Commissioner Antony Osler)
dated 25 May 2022 under case number NC1596- 18 is reviewed and set
aside.
2. The CCMA (the third respondent) is directed to set down the part -heard
unfair dismissal dispute referred to it by the applicants under case number
NC1596 -18 for arbitration before Commissioner Osler , unless Commissioner
Osler is no longer in the employ of the CCMA, in which case before a commissioner other than the second respondent.
3. There is no order as to costs.

S. Swartz
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant s: Mr Manasoe
Instructed by: Letsholo Manasoe Inc. Attorneys
For the Respondents:
Instructed by: