IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: J 3275/98
In the matter between:
SUN INTERNATIONAL (SOUTH AFRICA) LIMITED
TRADING AS MORULA SUN HOTEL AND CASINO Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First
Respondent
DUMISANI H ZONDI Second
Respondent
JOYCE CHAUKE Third
Respondent
SOUTH AFRICAN COMMERCIAL CATERING
AND ALLIED WORKERS UNION
Fourth Respondent
JUDGMENT
JAJBHAY, AJ :
[1] The parties :
The applicant in this matter is Sun International (South Africa) Limited trading as Morula
Sun Hotel and Casino. The applicant employed Joyce Chauke, the third respondent, (the
employee) prior to her dismissal on 25 November 1998. The first respondent is the
Commission for Conciliation, Mediation and Arbitration (CCMA).
The second respondent is Dumisani H Zondi, a Commissioner who presided over the
conciliation proceedings that are relevant to this application. The fourth respondent is the
South African Commercial Catering and Allied Workers Union (The Union) which
represented the employee at the conciliation.
[2] This is an application in terms of section 158(1)(g) of the Labour Relations Act 66 of
1995 as amended (the LRA). The application is for the review and setting aside of the
certificate of outcome of dispute dated 3 September 1998 (the certificate). This certificate
was issued by the Commissioner.
[3] Section 158(1)(g) of the LRA affords this court the power to review the performance or
purported performance of any function provided for in the LRA or any act or omission of any
person or body in terms of the LRA, or any grounds that are permissible in law.
[4] The issue to be determined :
The issue to be determined in the present matter is whether the Commissioner in allowing the
condonation for the late filing of the referral, has committed a gross irregularity, or mistake
in such a manner that it amounts to a gross irregularity.
[5] The facts :
The employee was suspended with pay and without any loss of benefits by the employer on
17 November 1997. The reason for the suspension was that she failed to account for certain
funds in her capacity as a cashier. The sum of R30 000,00 was unaccounted for at the end of
the shift conducted by her on 12 November 1997. The
employee was subsequently found guilty of the charges levelled against her and she
was dismissed on 25 November 1997. The employee appealed against her dismissal.
The appeal was unsuccessful. After the finalisation of the appeal proceedings, the applicant
instituted criminal proceedings against the employee. For reasons that are not relevant for
the purposes of this application, the charges were withdrawn.
[6] On 7 May 1998, the Union approached the applicant requesting a meeting to discuss
the dismissal of the employee. A meeting was scheduled for 19 May 1998. At this
meeting the applicant stated categorically to the Union that it had no intention of entering
into any settlement agreement with either the employee or the Union.
[7] At the conclusion of the meeting the Union representative was advised by the
applicant's representative that any referral of the dispute would be outside the 30 day period
as contemplated in the LRA. On 11 June 1998, the Union served the prescribed LRA form
7.11 at the offices of the applicant. It was stated in the form 7.11 that “the necessary
condonation application was attached relating to the late referral". However the evidence
indicated that no such application for condonation was attached to the form. The referral was
approximately five months late. The CCMA served a notice of set down on the parties for
the dispute to be conciliated on 3 September 1998.
[8] The applicant communicated a letter to the Union indicating that it had not received
the application for condonation. This letter was faxed on 31 August 1998. The applicant did
not receive any reply from the Union. A similar letter was submitted to the CCMA. The
CCMA did not reply to the applicant's request. Thereafter, and on
2 September 1998, a second letter was communicated to the CCMA, setting out the fact that
the applicant was not in receipt of the application for condonation. This letter was not
replied to.
[9] At the conciliation meeting, the Commissioner indicated that he was desirous to
execute his duty in terms of section 135 of the Act. At this time, the representative of the
applicant objected to the procedure that was to be adopted by the Commissioner. It was
brought to the Commissioner's attention that the CCMA did not have the necessary
jurisdiction to conciliate the dispute due to the fact that the referral was not timeously served.
[10] The Union representative then produced an affidavit deposed to by himself (Jabulani Motau).
The affidavit is dated 20 July 1998. In terms of this particular affidavit, the Union representative
requested condonation for the late referral on the following ground: "From date on which Joyce
Chauke was dismissed, the company led criminal charges against her on the second day being 2
November 1998. She was then busy with the court case up till 2 April 1998 whereby the criminal
charges were withdrawn, but to her surprise to learn that she was not called back to work.
[11] Joyce then communicated with the company through their industrial relations
department to find out about the matter and was advised to go personally to the company.
The industrial relations officer advised the applicant to refer the matter to CCMA. It is then
that she came to our offices for our intervention. We then wrote to the company proposing a
meeting trying to discuss possible ways of reinstating the applicant. The meeting failed to
resolve the matter. The meeting was proposed of 19 May 1998.
[12] After failing at the company, we then referred the matter to CCMA. I am therefore
requesting that the late referral should be condoned and the matter be heard through auspices
of CCMA, otherwise the applicant have a strong interest in the matter as she strongly feels
that she was unfairly treated and dismissed without the reasonable grounds."
[13] The above affidavit was deposed to on 20 July 1998, the LRA 7.11 form was
served on 21 May 1998. It is not possible that the affidavit could have been attached to the
referral form in the circumstances.
[14] At the conciliation hearing, after having been informed about the condonation
application, the Commissioner allowed the Union representative to read the contents of the
affidavit. The applicant's representative was allowed an opportunity to respond. The
applicant's representative protested that he was not furnished with the affidavit prior to the
proceedings. He continued by stating that had he been furnished with such a document, it
would have afforded him an opportunity to investigate the contents and would have
responded there to in writing. The applicant's representative further objected to the contents
of the affidavit in that it consisted of material that was hearsay in nature. The applicant's
representative further drew the Commissioner's attention to the guidelines that were
published in the government Gazette number 18936 on 5 June 1998, that governed the
applications for condonation.
[15] It appears from the founding affidavit deposed to by the applicant's representative,
that the Commissioner attempted to investigate "the merits of the matter". Immediately
after the investigation, the Commissioner made the following statement: "It was in the spirit
of the act to grant a party condonation, based on the contents of annexure JC6 (the affidavit)
condonation is granted to the third respondent. There were no other reasons furnished".
[16] When the applicant's representative objected to the finding, the Commissioner
responded by stating that the applicant may address the issue of
condonation "once the matter proceeds to arbitration". Thereafter the
Commissioner issued a certificate in terms of section 135 of the act. No
attempt was made to conciliate the dispute.
[17] The applicant's grounds for the review application:
The applicant set out the following grounds to support its application for
the review:
“(i) the Commissioner committed misconduct in relation to the duties of
a Commissioner; and/or
(ii) the Commissioner committed gross irregularities in the conduct of
the aforesaid proceedings;
(iii) the Commissioner exceeded his powers in dealing with the
aforesaid proceedings;
(iv) the Commissioner exceeded his powers as a Commissioner in terms
of the act;
(v) the Commissioner exceeded his powers in terms of the bill of rights
contained in the Constitution of the Republic of South Africa Act number
108 of 1996;
(vi) the Commissioner acted grossly unreasonably in performing his
duties during the course of the aforesaid proceedings.”
[18] The Commission:
It is trite that the CCMA was not created as a court of law (sections 112
to 114 of the LRA read with sections 165 and 166 of the Constitution of
the Republic of South Africa). Carephone (Pty) Limited v Marcus N.O. and
Others (1998) 19 ILJ 1425 (LAC). When Commissioners conduct
compulsory conciliation, in terms of the LRA, this involves the exercise of
a public power and function, because they attempt to resolve disputes
between the parties in terms of the LRA.
[19] The view expressed by Froneman DJP in the Carephone matter at paragraph 20 "the
constitutional imperatives for compulsory arbitration under the LRA and are thus based that the
process must be fair and equitable, that the arbitrator must be impartial and unbiased, that the
proceedings must be lawful and procedurally fair, that the reasons for the award must be given
publicly and in writing, that the award must be justifiable in terms of those reasons, and that it must
be consistent with the fundamental right to fair labour practices" are in my opinion equally
applicable when Commissioners are conducting a fact finding during the application for
condonation.
[20] In terms of the Constitution, the CCMA is an organ of the state as defined in section
239 of the constitution. See Carephone supra at 1430F. The CCMA, in fact does perform
functions of a judicial character, however these actions remain administrative in nature.
[21] In terms of section 33(1) and section 33(2) of the Constitution:
"Every person has a right to
(a) lawful administrative action when any of their rights or interests is affected or
threatened;
(b) procedurally fair administrative action where any of their rights or legitimate
expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action which affect any of
their rights or interests unless the reasons for that action have been made public; and
(d) administrative action which is justifiable in relation to the reasons given for it where
any of their rights is affected or threatened."
[22] The standard of review in terms of section 158(1)(g) :
In the matter of Juggath v Shanker N.O. and Another (1999) 2 BLLR 141 (LC) 141
LANDMAN, J in an application brought in terms of section 158(1)(g) of the LRA stated that
"for the present purposes it is sufficient to accept that those grounds include the normal
common law grounds for reviewing decisions of an administrative body" in discussing the
grounds that are permissible in law for the review of the performance of any function
provided for in the LRA.
[23] In the unreported decision of Softex Mattress (Pty) Limited v Paper Printing Wood
and Allied Workers Union and Others case number D473/97 MLAMBO, J at paragraph 10
stated the following: "As long as the council official or Commissioner is aware of the
applicable principles and it can be showed that the council official or
Commissioner applied his mind to the matter and applied the relevant principles to the fact
before coming to his decision there can be no talk of a reviewable irregularity."
[24] The provisions of sections 33(1) and (2) of the Constitution quoted above deal with
administrative actions. In my opinion, the act of determining whether the late referral has to be
condoned or not, is an administrative action. In a complex society such as ours, administrative
bodies such as the CCMA are increasingly necessary. The experience and expert knowledge of this
body is invaluable. The Commission provides a mechanism for a speedy resolution of complex, and
frequently technical, matters.
[25] The CCMA is a specialised body which administers a comprehensive statute
regulating labour relations. In the administration of that function, the Commissioner is called
upon not only to find the facts and decide questions of law, but also to exercise its
understanding of the body of jurisprudence that has developed around the LRA. Our courts
should exercise deference in reviewing the decisions of specialised administrative bodies
such as the CCMA. This deference extends both to the determination of the facts and the
interpretation of the law. However, where the evidence viewed reasonably, is incapable of
supporting the Commissioner's finding of fact, or where the interpretation placed on the
legislation is grossly unreasonable, the courts should interfere. If the above is shown, then
clearly the Commissioner could not have applied his mind to the matter at hand.
[26] Application of the Law to the facts:
In determining whether an employee has shown good cause as is envisaged in sections
191(2) of the LRA, the commissioner is enjoined to make a factual enquiry. See
Shoprite Checkers v CCMA and Another (1998) BLLR 510 and then Softex Mattress (Pty)
Limited supra . In Shoprite Checkers (Pty) Limited supra , PRETORIUS, AJ at
paragraph 21 said the following: "The section makes it clear that condonation is not there
merely for the asking. The employee must tender an adequate explanation for the delay.
This explanation must be considered by the Commissioner. Due regard must also be had to
the other generally accepted requirements for the ground of condonation as contemplated in
the words 'good cause'."
[27] Upon a proper construction of the affidavit in support of the application for
condonation, it cannot be said that the Commissioner applied his mind to the matter before
him and took account of the relevant considerations prior to his conclusion. This being so,
the Commissioner did not have jurisdiction to conciliate the matter. The subsequent issuing
of the certificate, was accordingly an irregular step in the circumstances.
[28] The decision of the Commissioner is not capable of reasonable justification when
regard is had to the factual premises on which it is based.
[29] Order:
Accordingly, I make the following order:
(i) The certificate issued by the Commissioner in this matter is reviewed and set aside.
(ii) The matter is remitted to the Commission for Conciliation, Mediation and Arbitration
for a proper determination of the condonation application
(iii) There is no order as to costs.
______________________
Jajbhay, AJ.
Acting Judge of the Labour Court of South Africa
DATE OF HEARING: 21st of April 1999
DATE OF JUDGMENT: 7th of May 1999
APPEARING FOR THE APPLICANT: Mr C Van Zyl
INSTRUCTED BY: Van Zyl’s Inc