IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO : J1918/98
In the matter between :
NATIONAL UNION OF MINE WORKERS Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
A HEYNES N.O. Second Respondent
LOXTON EXPLORATION (PTY) LIMITED Third Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
JAJBHAY, A.J.
[1] This is an application for the review and setting aside of an
award made by the Second Respondent in an arbitration conducted
under the auspices of the First Respondent, the CCMA. The Second
Respondent had determined that the dismissal of the members of the
Applicant by the Third Respondent was procedurally unfair. The
Second Respondent determined that the Third Respondent
compensate the members of the Applicant.
[2] Before turning to the facts of this matter, I have to determine the
approach that has to be taken by this Court to a review applied for in
terms of Section 145 of the Labour Relations Act 66 of 1995 (the LRA)
and in particular, whether this Court has jurisdiction to condone the
late application of an application in terms of Section 145 of the LRA.
[3] It was contended by Mr Maserumule on behalf of the Applicant
that this Court has the jurisdiction to condone the late filing of an
application in terms of Section 145 of the LRA, whilst Mr Van As on
behalf of the Third Respondent contended that this Court did not have
the jurisdiction to condone such an application. Section 145 of the
LRA which deals with review of arbitration awards sets out :
"(1) Any party to a dispute who alleges a defect in any
arbitration proceedings under the auspices of the Commission
may apply to the Labour Court for an order setting aside the
arbitration award -
(a) within 6 (six) weeks of the date that the award was served
on the Applicant, unless the alleged defect involved corruption;
or
(b) if the alleged defect involves corruption 6 (six) weeks of the
date that the Applicant discovers the corruption."
[4] The question that I have to answer is whether the six weeks time
frame set out in Section 145 of the LRA is peremptory. In addition,
whether there is a general provision in the LRA which would empower
this Court to condone non-compliance with the time period
contemplated in Section 145 of the LRA.
[5] The Labour Appeal Court has outlined the basic principles that
inform its approach to the task of interpreting the provisions of the
LRA. The Act requires that the LRA be interpreted to give effect to its
primary objects, and in conformity with the Constitution (Constitution
of the Republic of South Africa Act 108 of 1996) and South Africa's
public law obligations. The purpose of the Act is set out as follows :
"The purpose of this Act is to advance economic development,
"The purpose of this Act is to advance economic development,
social justice, labour peace and the democratisation of the
workplace by fulfilling the primary objects of this Act, which are -
(a) to give effect to and regulate the fundamental rights
conferred by Section 27 of the Constitution;
(b) to give effect to obligations incurred by the Republic as a
member state of the International Labour Organisation;
(c) to provide a framework within which employees and their
trade unions, employers and employers organisations can -
(i) collectively bargain to determine wages, terms and
conditions of employment and other matters of mutual interest;
and
(ii) formulate industrial policy."
[6] Conformity with the Constitution includes the fact that the
provisions of the LRA must be considered against the background of
the Constitution, which is the supreme law of the land and which itself
requires that this Court when interpreting the LRA promote the spirit,
purport and objects of the Bill of Rights.
Business South Africa v Congress of South African Trade
Unions and Others (1997) 18 ILJ 474 (LAC);
Chemical Workers Industrial Union v Plascon Decorative
(Inland) (Pty) Limited (1999) 20 ILJ 321 (LAC);
Carephone (Pty) Limited v Marcus N.O. and Others (1998)
19 ILJ 425 (LAC)
[7] The relevant facts in respect of the application for condonation
are briefly as follows :
a. The application was not made within six weeks of the date of the
award as required by Section 145 of the LRA.
b. The Applicant received the arbitration award on or about the
20th of May 1998. The Applicant was accordingly required to institute
review proceedings on or before the 27th of June 1998.
c. The review application was filed on the 4th of August 1998. This
was approximately five weeks out of time.
[8] By reason of the outcome that I have reached in this particular
matter, I will not deal with the other details concerning the
condonation application.
[9] In the matter of Queenstown Fuel Distributors CC v
Labuschagne N.O. and Others (1999) 3 BLLR 268 LC, Landman, J in
an application for review of an award issued by a CCMA Commissioner,
one week outside the six week time limit prescribed by Section 145 of
the LRA explained :
"Whether condonation may be granted or not depends upon the
interpretation of the statute in question. Generally, there
appears to be no inherent power residing in a Court to condone a
failure to comply with the time limits laid down by statute (See
the remarks by Didcott, J in Mohlomi v Minister of Defence 1996
(12) BCLR 1559 (CC) at 1568D-E)
The legislature was aware in enacting the Labour Relations Act
66 of 1995 that circumstances might arise where the time limits
it sets might not be met by parties subject to the Act, and has,
for the most part, provided for the appropriate authority to
condone a failure to comply with them - usually on good cause
being shown (see for example Sections 111(4) and 191(2) of the
Act."
[10] In the above matter, Landman, J concluded that this Court does
not have jurisdiction to condone the late application in terms of
Section 145 of the LRA.
[11] Mr Maserumule referred me to the unreported decision of
Mlambo, J in the matter between Transnet Limited and Hospersa,
case number J1385/98. Mlambo, J was determining an application
for review in terms of the Arbitration Act No. 42 of 1965 as amended
(the Arbitration Act).
[12] Section 33(2) of the Arbitration Act provides that :
"An application pursuant to this section shall be made within six
weeks after the publication of the award to the parties; provided
that when the setting aside of the award is requested on the
ground of corruption, such application shall be made within six
weeks after the discovery of the corruption and in case not later
than three years after the date on which the award was
published."
[13] Mlambo, J held that :
"Section 158(1)(f) accords this Court the power to condone the
late filing of any document or the late referral of any dispute to
the Court. On that basis it is competent for this Court to
entertain a condonation application relating to a matter brought
to it in terms of the Arbitration Act. In this regard the
empowering act is the LRA being the Act that creates this Court
with jurisdiction and power to entertain certain specific matters."
[14] In my view, the matter determined by Mlambo, J can be
distinguished from the matter on hand. The learned Judge was not
dealing with the interpretation of the provisions of Section 145 of the
LRA. Section 145 of the LRA deals specifically with a defect in any
arbitration proceedings under the auspices of the Commission. The
review provisions under the Arbitration Act will be dealt with in terms
of the provisions of Section 157(3) of the LRA. This section provides
that :
"Any reference to the Court in the Arbitration Act, 1965 (Act 42 of
1965), must be interpreted as referring to the Labour Court when
an arbitration is conducted under that Act in respect of any
dispute that may be referred to arbitration in terms of this Act."
[15] It is necessary to interpret Section 145 in a manner which is
consistent with the Constitution. In the Carephone matter supra, at
paragraph 28 Froneman, D.J.P explains that :
"It is capable of such an interpretation. ... It is a lesser evil
than ignoring the whole of Section 145, including the
sensible provisions relating to time limits. (Emphasis
added)"
[16] In the Constitutional Law of South Africa, Chaskalson and Others
state at page 11-11 :
"A statute is an instrument by means of which a legislature
elected by a majority of citizens governs those citizens. It is a set
of instructions from the legislature to the officials who enforce
the statute and to the citizens who are required to comply with
the statute and to the citizens who are required to comply with
its provisions. When Judges interpret statutes they are
attempting to read and understand those instructions, and to
assist officials and citizens in understanding and obeying those
instructions. A Judge interpreting a statute is engaged in the task
of attempting to determine legislative intent."
[17] The LRA was the product of compromise and consensus amongst
the social partners. The passing of the LRA by Parliament was
something of a formality. There are compelling reasons why the time
constraints set out in Section 145 should be treated with deference by
the Labour Courts. First, the LRA explains in unequivocal terms that
the arbitration award issued by the Commissioner is final and binding
(Section 143). Secondly we must recognise that the drafters of the
LRA consisted of persons representing the social partners, namely
labour, business and government. These are the persons who are best
placed and aware of the intricacy of labour relations and the delicate
balance that must be preserved between the parties for the benefit of
society. These are also the individuals that govern the CCMA (Section
116).
[18] The recent amendment to the LRA which came into effect at the
beginning of February 1999, expressly makes provision for the referral
of a matter for arbitration, or to the Labour Court, for adjudication,
within 90 (ninety) days after the council or the commissioner has
certified that the dispute remains unresolved. However, in the
appropriate circumstances, either the commissioner, or the Labour
Court may condone non-observance of the time frame on good cause
shown. Nothing of the sort has been added to Section 145 of the LRA.
[19] In order to "read and understand those instructions, and to assist
officials and citizens in understanding and obeying those instructions"
(Chaskalson et al supra), it must be understood that the procedures,
and the various institutions created by the LRA were for the
expeditious and efficient settlement of labour problems. Problems
arising in the labour matters frequently involve more than legal
questions. Political, social and economic questions frequently
dominate labour disputes. The legislative creation of these
dominate labour disputes. The legislative creation of these
institutions, and the statutory time constraints will go a long way in
meeting the needs of finalising the review of arbitration awards under
the auspices of the CCMA expeditiously, efficiently, and inexpensively.
In determining the true meaning of Section 145 of the LRA, this Court
should be guided by a pragmatic and functional approach.
[20] Mr Maserumule argued that Section 158(1)(f) of the LRA gives
the Labour Court the power to condone the late filing of any document
or the late referral of any dispute to the Labour Court. This section
states :
"The Labour Court may - subject to the provisions of this Act,
condone the late filing of any document with, or the late referral
of any dispute to, the Court."
[21] In my view, this argument cannot be sustained because the filing
of an application for the review of an arbitration award under the
auspices of the CCMA does not fall within the ambit of the provisions of
the above section. Neither does an application for a review of an
arbitration award under the CCMA constitute the referral of a dispute
to the Court.
[22] Unresolved disputes fester and spread infection of discontent.
They cry out for resolution. Disputes in the field of labour relations are
particularly sensitive. Work is an essential ingredient in the lives of
most South Africans. Labour disputes deal with a wide variety of work
related problems. They pertain to wages and benefits, working
conditions, hours of work, job classification and seniority. Many of
these issues are emotional and volatile. If these disputes are not
resolved quickly and finally they can lead to frustration, hostility and
even violence. Both the members of the workforce and management
have every right to expect that the differences will be, as they should
be, settled expeditiously. Further the provision of goods and services
in our complex society can be seriously disrupted if there were no time
constraints to expeditiously finalise a review application in terms of
Section 145 of the LRA. Thus society as a whole as well as the parties,
has an interest in their prompt resolution.
[23] In my judgment, the drafters have recognised the importance of
a speedy determination of labour disputes. By the enactment of the
LRA they have sought to provide a mechanism for a fair, just and
speedy conclusion of the issues. In this particular instance, they have
gone further and allowed a maximum time period of six weeks to
gone further and allowed a maximum time period of six weeks to
institute proceedings in terms of Section 145 of the LRA.
[24] There are also good policy reasons in fettering the discretion of
this Court in the exercise of its remedial powers. The whole purpose in
establishing a system of grievance arbitration under the LRA is to
secure prompt, final and binding resolution of disputes arising out of
interpretation or application of collective agreements, or disciplinary
action taken by the employer, or to the end that industrial peace may
be maintained.
[25] In the Queenstown Fuel Distributors CC matter supra,
Landman, J observed :
"It may be argued that the six week period infringes on the right
of access to the Courts (See Section 35 of the Constitution of the
Republic of South Africa 108 of 1996). If that be the case, it
cannot be resolved by this Court, for this Court is not empowered
to adjudicate on the Constitutionality of the laws which it
applies."
[26] In the light of the above circumstances, it follows that this Court
does not have the jurisdiction to condone the late application of the
review of the arbitration award determined by the Second Respondent
under the auspices of the CCMA.
[27] In the present matter, I do not believe that the dictates of the
requirements of law and fairness require that the Applicant be made to
pay the costs of this application. It was not unreasonable of the
Applicant to have instituted the present proceedings. This is
especially so in the light of the uncertainty surrounding the
applicability of the time constraints as set out in Section 145 of the
LRA. In addition, there appears to be an ongoing relationship between
the Applicant and the Third Respondent. In short, there are no
considerations of law or fairness which persuade me that the Applicant
should bear the costs of this application.
[28] Accordingly I make the following order :
a. The application is dismissed.
b. No order is made as to costs.
M JAJBHAY
Acting Judge of the Labour Court
of South Africa
DATE OF HEARING : 30th April 1999
DATE OF JUDGMENT : 7th day of May 1999
FOR THE APPLICANT : Mr Maserumule of Maserumule and
Partners
FOR THE THIRD RESPONDENT : Advocate M Van As instructed by
De Vries Serobe
MJ0006