VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 7 SEPTEMBER 1999 CASE NO. J2736/99
In the matter between:
PETUNIA BALOYI Applicant
and
SWISS WHOLESALERS Respondent
J U D G
M E N T
MACROBERT, AJ :
[1] This is an application in terms of section 158(1)(c) of the Labour
Relations Act in which the applicant, Ms Baloyi, requests an order that
an arbitration award handed down by Commissioner A R Mudau on 18 June
1999 be made an order of this court.
[2] The application is in proper form and order and there is no
appearance on behalf of the respondent. The one problem which the court
had to confront was that ex facie the arbitration award itself it
appears that the reason for the applicant's dismissal by the respondent
company was on account of her pregnancy or alternatively on account of
her having given birth to a child. Reference is made in the arbitration
award to section 187(e) of the Labour Relations Act and it is
trite/..
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trite law that the terminations in that particular section of the Labour
Relations Act relate to socalled automatic unfair dismissals and they
are adjudicable by the Labour Court and not by the CCMA unless the
parties otherwise agree. There is no evidence of any agreement before
me.
[3] However, this court is not in possession of all the documentation
that served before the commissioner concerned, nor does the court have
the form 711 which referred the dispute to the CCMA in the first place.
So for example it may well have been, although there is no evidence of
this before me, that the applicant in this matter referred a dispute to
the commission in which she provided that she did not know what the
reason for her dismissal was and if she did that then the CCMA would
have had jurisdiction in terms of the Labour Relations Act, in terms of
section 191(5)(a)(iii).
[4] That aside, the court has before it an arbitration award handed
down by Commissioner Mudau and the respondent has not sought to review
that award as it would have been entitled to, apply for a review, or
alternatively there has been no application for rescission of the award
in terms of section 144 which the respondent would also have been
entitled to do.
[4] There are a number of writings on Administrative Law, including by
the learned author Baxter and there are also a number of decisions which
impact upon the extent to which an order which was obtained when there
was no jurisdiction, may be a nullity or may stand until such time/..
time as it is set aside by one or other means. Now it also says of
cases involving the socalled collateral attack rule, one of the leading
cases of which was in the Cape Division decided, I think, by Conradie J
cases of which was in the Cape Division decided, I think, by Conradie J
in the National Panasonic matter in which courts have held before that
unless a challenge is made at the right place, at the right time, then
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even though an action that is complained of may have been done without
jurisdiction, it can none the less stand.
[5] I have therefore come to the conclusion in this matter that to give
effect to the primary purposes of the Act, and to do justice to the
applicant, not that I am disregarding the rights of the respondent, that
as the applicant is here today, she has an order of the CCMA, she wants
it made an order of court, that in the premises I am going to make such
an order.
1. I accordingly order in terms of prayers 1 and 2 of the notice of
motion namely that the award of Commissioner Mudau handed down on 17
June 1999 be made an order of this court, a copy of that award being
annexed hereto.
2. That the costs of this application be paid by the respondent.
3. That as claimed interest on the amount so ordered, namely R5 760,00
will be payable by respondent in terms of section 143 of the Labour
Relations Act and the interest will be calculated and will run with
effect from 6 July 1999 until date of payment.
MACROBERT, AJ
LABOUR COURT OF SOUTH AFRICA
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