IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number:
J2399/99
In the matter between
DE BEERS CONSOLIDATED MINES LTD Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
ADVOCATE C H BOTHA Second Respondent
NATIONAL UNION OF MINEWORKERS Third Respondent
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
PILLAY AJ
1. This is a review in terms of Section 158(1)(g) of the Labour Relations Act of 1995 {"the Act")
against the decision of the Second Respondent, a commissioner of the CCMA, to issue a
Certificate of Outcome of Dispute referred to Conciliation, Form 7.12, which certified that the
dispute between the Applicant and the Third Respondent concerning "matters of mutual interest"
remained unresolved. On the same form he indicated that the dispute should be referred to
"strike/lockout"
2. In the Outcome Report the Second Respondent went on to add:
"Being a matter of mutual interest the next step for the parties would be to take industrial action."
3. The referral to Conciliation from the Third Respondent described the dispute as :
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"The respondents unilateral implimentation (sic) of Contractors Gray Security contrary to the
substantive agreement clause 16.5 of 1995 (attached), Gray Security was contracted on the 26
January (sic) 1999."
4. The Applicant contended that the dispute referred to the CCMA was clearly about the
interpretation and application of a collective agreement and not a matter of mutual interest.
5. Counsel for the Applicant submitted the disputes about matters of mutual interest and the
interpretation and application of collective agreements followed mutually exclusive dispute
procedures. The former could be resolved through industrial action whereas the latter had to be
arbitrated. He subsequently accepted that the dispute procedures were not necessarily mutually
exclusive. However, he maintained that the characterisation of a dispute as one of mutual interest
was so wide as to be uninformative about what the dispute was other than that it was one
concerning employment.
6. Counsel for the Applicant submitted further that by characterising the dispute as one of mutual
interest and stating in the Outcome Report that the next step for the parties would be to take
industrial action, the Second Respondent failed to distinguish between disputes about the
interpretation and application of agreements and and those concerning matters of mutual interest.
This was a material error of law, which was reviewable. ( Johannesburg Stock Exchange and
Another 1988 (3) SA 132 (A) at p152 AE; Hira and Another v Booysen and Another 1992 (4) SA
69 (AD) at p 85 AB )
7. It was conceded by Counsel for the Third Respondent that the characterisation of the disputed
was incorrect. However, he submitted that it was immaterial how a commissioner characterises a
dispute as it has no juristic effect.
dispute as it has no juristic effect.
8. The powers of a commissioner when conciliating a dispute are prescribed in Section 135 of the
LRA read with Regulation 8 of the General Administrative Regulations (Government Notice R1737
of 1 November 1996). The Regulations are authorised by section 208 of the LRA which permits
that Minister to make regulations about "any matter". Form 7.12 requires a commissioner to certify
what the dispute is about.
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9. Counsel for the Third Respondent submitted that the regulations would be ultra vires if it required
the commissioner to characterise the dispute as this was not authorised by section 135 of the
LRA. This submission is, as a result of section 208, without foundation.
10. It is necessary to describe the dispute as it is a jurisdictional prerequisite for the next step in the
procedural chain. If the dispute is resolved it would also be clear what dispute was resolved.
Section 157(4) provides:
" (b) A certificate issued by a commissioner or a council stating that a dispute
remains unresolved is sufficient proof that an attempt has been made to resolve that
dispute through conciliation." ( my underlining)
11. The Form 7.12 should therefore specify what "that" dispute is. The submission by Counsel for the
Third Respondent that Form7.12 is without any effect is therefore rejected.
12. Usually, the description of the dispute can be extracted from the Referral to Conciliation Form
7.11. If it is clear and consistent with the submissions made during conciliation then the Form 7.12
should reflect the dispute substantially as described in Form 7.11.
13. However, if the description of the dispute in form 7.11 is vague, ambiguous, unclear or
inconsistent with the submissions made during conciliation, and the commissioner decides to
characterise the dispute differently on Form 7.12, s/he must do so with great caution.
14. A commissioner should therefore attempt first to secure an agreement between the parties on
what the dispute is about and to record such agreement. If there is no agreement then the
commissioner should get clarity from the party referring the dispute. The commissioner should be
slow to substitute his or her own understanding of what the dispute is about for the parties'
understanding. These steps are not prescribed but may assist the commissioner to characterise
the dispute correctly.
15. Ultimately however, the responsibility for Form 7.12 rests with the commissioner who must ensure
that the dispute is correctly characterised. When completing and issuing Form 7.12, a
commissioner performs administrative functions which are reviewable in terms of Section 158(1)
(g). (Carephone (Pty) Ltd v Marcus No & Others 1998 19 ILJ 1425 LAC) . The commissioner must
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ensure that the dispute is characterised correctly.
16. The term "matters of mutual interest" is not defined in the Act. It must therefore be interpreted
literally to mean any issue concerning employment. It has been given a wide interpretation. ( Rand
Tyres and Accessories v Industrial Council for the Motor Industry (Transvaal) 1941 TPD 108; The
Labour Relations Act of 1995, DuToit, Woolfrey, Murphy, Godfrey, Bosch and Christie., Second
Edition Butterworths 1998 at p198)
17. The term would include disputes of right as well as of interest. It follows that some disputes about
matters of mutual interest may be referred to arbitration or to the Labour Court whilst others may
be resolved through industrial action. This view is fortified by reference to Section 51(1) and (3)(iv)
of the Act which contemplates that a council may arbitrate a dispute about a matter of mutual
interest if the Act requires arbitration.
18. Not every dispute about a matter of mutual interest need be resolved through industrial action. On
the other hand, however, industrial action must be about a matter of mutual interest. This follows
from the definition of "strike" which provides:
" 'strike' means the partial or complete concerted refusal to work, or the
retardation or obstruction of work, by persons who are or have been employed by the
same employer or by different employers, for the purpose of remedying a grievance or
resolving a dispute in respect of any matter of mutual interest between employer and
employee, and every reference to 'work' in this definition includes overtime work, whether
it is voluntary or compulsory;"
19. To characterise a dispute as a matter of mutual interest in a Form 7.12 is ineffectual. It means no
more than saying that it is a labour dispute which would be obvious.
20. It is common cause that the Second Respondent characterised the dispute incorrectly. The issue
to be decided is whether the characterisation of the dispute had any juristic effect and whether the
Second Respondent had any obligation to characterise the dispute. Both questions must be
answered affirmatively.
21. With regard to costs, I take into account that the parties have an ongoing relationship with each
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other. The matter traversed a relatively untested area of law. Neither party persisted vigorously for
costs to follow the result. I accordingly make no order as to costs.
22. In the circumstances I make the following order:
a) The decision of the First Respondent is reviewed and set aside.
b) The Certificate of Outcome of Dispute referred to Conciliation (Form 7.12) is hereby amended by
the substitution for the words "matters of mutual interest (contracting out of services) of the words
"a dispute about the interpretation and application of a collective agreement".
c) There is no order as to costs.
D PILLAY A J
Acting Judge of the Labour Court
DATE OF HEARING: 25 February 2000
DATE OF JUDGMENT: 29 February 2000
For the Applicant: Adv C WattPringle
Instructed by: Perrot, van Niekerk and Woodhouse Inc
For the Respondent: Adv T Bruinders
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Instructed by: Nomali Tshabalala Attorneys
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