VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J457/99
In the matter between:
SWART, J J Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION AND OTHERS Respondents
J U D G M E N T
___________________________________________________________
KENNEDY, AJ:
[1] In this matter, Mr Swart, the applicant, has brought
an application on notice of motion seeking the review and
setting aside of a decision of a commissioner, Mr Breedt,
in the CCMA. In terms of the award handed down it is
apparent that the commissioner decided that the CCMA lacks
the necessary jurisdiction to hear the labour dispute on
the basis of a finding that the applicant was not an
employee and therefore fell outside the ambit of the Labour
Relations Act.
[2] The notice of motion filed by the applicant in the
present matter is supported by an affidavit which follows
the standard form referred to in the rules but it simply
sets out a few basic facts such as to identify both the
applicant and the respondents and it refers also to the
fact that he seeks to review the award handed down by the
commissioner.
[3] The founding affidavit does not, however, set out any
grounds on which he seeks to review the award and does not
set out any factual averments as to why he seeks to attack
the validity or the regularity of the award.
[4] The rules of this court in such matters are clear.
The procedure for reviews of CCMA awards is dealt with in
Rule 7A of the Rules of this Court. In particular I refer
to Rule 7A(2) which reads as follows:
"The Notice of Motion must
(a) call upon the person or body to show cause why the
decision or proceeding should not be reviewed and corrected
or set aside;
(b) call upon the person or body to despatch within ten
days after receipt of the Notice of Motion, to the
Registrar, the record of the proceedings sought to be
corrected or set aside together with such reasons as are
required by law or desirable to provide and
to notify the applicant that this has been done; and
(c) be supported by an affidavit setting out the factual
and legal grounds upon which the applicant relies to have
the decision or proceedings corrected or set aside."
[5] In the present matter it is clear that the latter
provision, namely the requirement in subrule (2)(c), that
the factual and legal grounds be set out on which the
applicant relies to have the decision corrected or set
aside, has not been complied with at all.
[6] On the face of it, therefore, the founding affidavit
fails to comply with the requirements of the rules. I
must, however, take into account the fact that Mr Swart is
a lay person who is unrepresented and is clearly not
familiar with the provisions of the court rules. He seeks
the opportunity to have the matter postponed in order for
him to supplement or amend his affidavit in support of his
review. I asked him briefly to give an outline of the
nature of the grounds on which he alleges that the
arbitrator acted in an irregular or improper way, in other
words the grounds for the contemplated review. Much of
what he submitted to me appeared to be irrelevant as far as
review grounds are
concerned but he did none the less indicate at least one
point on which there seems to be at least the kernel of a
possible ground for review, namely that he alleged that the
third respondent in the present matter, Mr Lyczynski, had
submitted documents to the arbitrator on which the
arbitrator relied in coming to his decision and which
documents were not given to the applicant in order for him
to peruse them and to have an opportunity to deal with them
either in evidence or argument. Of course it is not
appropriate for me at this stage to deal with whether or
not that allegation is correct, that is a matter that seems
to be required to be dealt with by way of proper affidavits
to be filed by the parties concerned and, if necessary, for
the commissioner, if called upon to do so, to deal with
that in due course.
[7] The third respondent, Mr Lyczynski, resisted the
application for postponement on the basis, firstly, that
the case had properly been heard by the arbitrator in the
CCMA and, secondly, on the basis of a submission that the
applicant was abusing the court process by bringing a case
devoid of merit as he has allegedly done, according to Mr
Lyczynski, in other courts and on other occasions.
[8] Neither of these points, in my view, is a proper basis
to avoid the request for postponement. Whether or not the
case was properly heard by the commissioner, by the
arbitrator in the CCMA, is of course the question which
will have to be decided in due course in the review
application. If I grant the postponement to allow the
applicant to put forward his allegations in proper form, in
the form of an affidavit, to set out inter alia , the ground
that he has referred to already, that affidavit will then
have to be served on Mr Lyczynski as well as on the CCMA
and the commissioner to enable each of them to file
whatever affidavit or other evidence they may wish to
resist the review. The court in due course can then test
and decide whether the case was indeed properly heard by
the commissioner.
[9] The second point raised by Mr Lyczynski, namely that
the applicant is abusing the court process is, in my view,
on the evidence before me not supported by any proper basis
for me to reach such a conclusion. It appears to me on the
face of it that the applicant is simply ignorant of the
court processes and rules and he
should, in the interests of fairness and in the interests
of resolving the dispute on its merit, be granted to an
opportunity to file further papers.
[10] However, this matter cannot be left on an indefinite
basis and he therefore should be put on terms to file
the affidavit with reasonable time. I there grant the
following order:
(a) This application is postponed sine die ;
(b) The applicant is directed to file a supplementary
affidavit to set out the grounds on which he seeks to
review the second respondent's decision;
(c) That affidavit is to be filed within ten days of
today.
____________________
ACTING JUDGE KENNEDY
APPLICANT IN PERSON
THIRD RESPONDENT IN PERSON
DATE OF HEARING : 17 AUGUST 1999
DATE OF JUDGMENT : 17 AUGUST 1999