JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NUMBER: J678/98
Reportable: No DATE: 19990407
Of interest: No
In the matter of:
SUN INTERNATIONAL SOUTH AFRICA LIMITED Applicant
and
CCMA AND OTHERS Respondents
J U D G M E N T
BASSON, J :
The fifth and the sixth respondents were dismissed on 7 and 8 July 1997. The
internal procedures pertaining to their dismissal (the appeals) took place on 28
July 1997 and the internal dispute procedures came to an end on 19 September
1997.
However, the dismissals on 7 and 8 July 1997 were not suspended by reason of
these internal proceedings.
The operative dates of the dismissals are therefore 7 and 8 July 1997.
These dismissal disputes where referred to the Commission for Conciliation,
Mediation and Arbitration (“the CCMA”) on 8 October 1997, that is,
approximately two months out of time having regard to the provisions of section
191(1) of the Labour Relations Act, 66 of 1995 (“the Act”).
The conciliation proceedings took place on 4 November 1997. However, the issue
of condonation for this late referral was not dealt with by the first respondent, that
is the CCMA, through its commissioner, the second respondent. Nevertheless, the
second respondent issued the certificate to the effect that the dispute remains
unresolved on 4 November 1997.
The matter proceeded to arbitration after some time and extensions and
postponements on 16 March 1998. The arbitrator of the CCMA, the third
respondent, did not deal with the matter as he was of the view that the said
certificate had not been correctly issued.
The applicant, Sun International South Africa Limited, accordingly took the
issuing of the certificate on review, filing its papers on 1 April 1998.
The decision taken by the second respondent to issue the certificate in the absence
of considering the merits of a possible condonation application, clearly constituted
a gross irregularity in the conciliation proceedings.
Furthermore, it was incumbent upon the second respondent to consider the issue
of condonation as it determines the jurisdiction of the CCMA to deal with this
matter or dispute.
Accordingly the issuing of the certificate did not take place properly but it took
place in the absence of jurisdiction to entertain conciliation proceedings and
therefore falls to be set aside on review.
I make the following order:
1. The certificate issued by the second respondent in the matter between the
applicant and the fourth, fifth and sixth respondents in terms of the provisions of
section 135(5)(a) of the Labour Relations Act, 66 of 1995 and dated 4 November
1997, is hereby reviewed and set aside.
2. The first respondent is ordered and directed to consider afresh and on its merits
and in terms of provision of section 191(2) of the Labour Relations Act any
application for condonation which may be brought or persisted in by the fifth and
sixth respondents in respect of the failure by the fifth and sixth respondents to
comply with the time period of 30 days laid down in section 191(1) of the Labour
Relations Act.
3. The first respondent is directed to appoint another Commissioner to deal with this
matter.
____________________
BASSON , J