About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2025
>>
[2025] ZALCJHB 532
|
|
Molefe v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR1910/2022) [2025] ZALCJHB 532 (13 November 2025)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1910/2022
In
the matter between:
PULE
ISAAC
MOLEFE
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
(CCMA)
First Respondent
NORMAN
MATHEBULA N.O.
Second Respondent
SARS
CUSTOMS
Third Respondent
Heard:
19 August 2025
Delivered:
13 November 2025
Summary:
The review application was
dismissed because
the
Applicant is not entitled to a review of a condonation ruling under
the guise of a review of a jurisdictional ruling. The jurisdictional
ruling is not susceptible to review, as it is correct in fact and in
law. Review dismissed with
no
order as to costs.
JUDGMENT
COOK,
AJ
Introduction
[1]
This is an
opposed review application in which the Applicant seeks to set aside
the jurisdictional ruling dated 2 August 2022 issued
under case
number JAEK437-2022.
[2]
The Applicant
seeks that the matter be referred back to the First Respondent (the
CCMA) for a new hearing before a commissioner
other than the Second
Respondent (the commissioner).
[3]
The Third
Respondent (SARS) prays for the dismissal of the review with costs.
Background
[4]
The Applicant,
as a customs official, was issued a firearm by SARS.
[5]
On
2 April 2022, the
Applicant allegedly used this firearm to shoot his wife, resulting in
her death. The Applicant was arrested the
following day, 3 April
2022.
[6]
On
4 April 2022, SARS
issued a letter to the Applicant notifying him of its intention to
terminate his employment and afforded him
until
12h00 on 6 April 2022
to provide reasons
why his employment should not be terminated.
[7]
On 6 April
2022, the Applicant, through his legal representative, failed to
provide the requested reasons. Instead, the representative
submitted
that SARS's conduct amounted to an unfair labour practice and
requested that SARS invoke the provisions of the Dispute
Code and
Procedure for the Public Service.
[8]
That same day,
SARS addressed a letter stating that the Applicant had not provided
sufficient reasons despite being offered the
opportunity to do so,
given his incarceration following the incident. SARS then proceeded
to terminate his employment.
[9]
On 12 May
2022, the Applicant referred an unfair dismissal to the CCMA. The
referral was late. Consequently, on 18 May 2022, the
Applicant
applied for condonation for the late referral of his dispute, which
SARS opposed.
[10]
On 9 June
2022, the commissioner issued a condonation ruling concluding that
the Applicant had not established good cause for the
late referral to
be condoned.
[11]
On 24 June
2022, the Applicant applied for the rescission of the condonation
ruling, which SARS opposed.
[12]
On 2 August
2022, the same commissioner issued the jurisdictional ruling.
[13]
In the
jurisdictional ruling, the commissioner found:
‘
In
the application for rescission of the rescission application (sic),
the Applicant does not articulate any of the grounds for
rescission
as contemplated in Section 144 of the Labour Relations Act 66 of 1995
(the LRA) as amended. Therefore the CCMA lacks
jurisdiction to
rescind the rescission application in this matter.’
[14]
The
commissioner ruled that the commission had no jurisdiction to
entertain the Respondent’s rescission application. The
commissioner expressly ruled that the Applicant may approach the
Labour Court to review the condonation ruling under Section 158
of
the LRA if he so wished.
The
review
[15]
On 8 September
2022, the Applicant approached this Court to review and set aside the
jurisdictional ruling.
[16]
In
terms of the review application, the grounds of review were biased.
The Applicant submitted further that the commissioner appeared
to
have considered only two requirements, namely the reason for the
delay and the prospects of success, and had “
disregarded
the rest in arriving at his decision”
.
[1]
Analysis
[17]
The Applicant seeks
to review and set aside the jurisdictional ruling, rather than the
condonation ruling.
[18]
The Applicant’s
approach was fundamentally misconceived. The Applicant sought to
rescind the condonation ruling when the appropriate
remedy was to
review it.
Since the condonation
ruling was not granted in the Applicant's absence, there was no legal
basis for a rescission application.
[19]
Despite the
commissioner expressly advising the Applicant to review the
condonation ruling, the Applicant disregarded this guidance
and
instead applied to review the subsequent jurisdictional ruling.
[20]
It is evident
from the grounds advanced in the review that the real target of the
review is the condonation ruling, not the jurisdictional
one. The
founding affidavit discloses no basis for impugning the
jurisdictional ruling.
[21]
The
jurisdictional ruling—which simply found that the CCMA lacked
the power to rescind its own condonation ruling—is
correct
[2]
in
fact and in law, and is therefore
not
susceptible to review.
[22]
In argument,
the Applicant contended that the matter should be considered ‘in
totality’ for justice to prevail. This
contention cannot
succeed. The notice of motion confines the relief sought to the
review of the jurisdictional ruling.
[23]
Further, the
condonation ruling was issued on 9 June 2022, and any review thereof
should have been launched by 21 July 2022. The
Applicant, however,
only filed this review application on 8 September 2022—well out
of time—and without any accompanying
application for
condonation.
[24]
Consequently,
the Court lacks jurisdiction to entertain such a review. The
Applicant is not entitled to shoehorn a review of the
condonation
ruling under the guise of a review of the jurisdictional ruling.
Costs
[25]
The Applicant
was legally represented throughout the process. The legal
representative should have properly advised the Applicant
to follow
the Commissioner’s clear guidance and launch a timely review of
the condonation ruling.
[26]
Instead, the
Applicant pursued a meritless review directed at the wrong ruling,
advancing grounds that relate solely to the condonation
ruling. The
Applicant attempted to reframe the matter as a review of the
jurisdictional ruling rather than seeking condonation
for the late
filing of the appropriate review.
[27]
This misguided review could have been
avoided with proper legal advice, thereby preventing unnecessary
costs. SARS was compelled
to oppose the application, resulting in
additional costs ultimately borne by the taxpayers.
[28]
Nonetheless, a
costs order against the Applicant would unduly burden him and would
not serve the interests of law and fairness.
In the circumstances, no
order as to costs is made.
[29]
Based on the
foregoing, the Court makes the following order:
Order
1.
The review
application is dismissed.
2.
There is no
order as to costs.
A.L. Cook
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Adv Manu Mapila
Instructed
by:
Mapulaneng
M N Attorneys
For
the Respondent: A Makuwa
Instructed
by:
Cheadle
Thompson & Haysom
[1]
At
paragraph 6.6 of the founding affidavit, page 6 of the indexed
pleadings.
[2]
S
A
Rugby Players Association & others v SA Rugby (Pty) Ltd &
others
(2008)
29 ILJ 2218 (LAC)
[2008] ZALAC 3
; ;
[2008] 9 BLLR 845
(LAC).