VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 19 June 2000 CASE NO. J3104/99
In the matter between:
SACCAWU AND OTHERS Applicants
and
CASH PAYMASTER SERVICES (PTY) LTD Respondent
J U D G M E N T
LANDMAN, J :
[1] Cashmaster Services (Pty) Ltd dismissed 18 employees on 3 April 1998 for
embarking on an unprotected strike. The employees were members of
SACCAWU. The union referred a dispute concerning their dismissal to the
CCMA on 12 May 1998. The CCMA provided a certificate that the dispute
remained unresolved. Thereafter the union referred the dispute for
arbitration. The employer objected to this as it alleged that the CCMA
lacked jurisdiction.
[2] The commissioner, who apparently provided the certificate of 12 May, was
also the commissioner who was to hear the arbitration. He purported to
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issue a replacement certificate on 13 November 1998. This
certificate indicated that the dispute was still unresolved.
[3] The union office at Nelspruit decided to institute proceedings in the
Labour Court. A copy of Form 1 was faxed to the registrar of this court
on 23 March 1999. The registrar did not respond to this request. The
responsibility for this matter was subsequently passed to the
Johannesburg office of the union. A fresh application for a case number
was made on 12 August 1999. A statement of case was thereafter filed on
23 August.
[4] On 24 January 2000 the union filed an application for the condonation of
the late filing of the statement of claim "within the period of time
reasonably expected of them to do though the Labour Relations Act
applicable before the amendment did not prescribe the period of time
within which a referral must be done".
[5] Mr Zibi, who appeared for the union, however stressed that the
application was made ex abuntanti cautela because, he contended, the
application was in fact launched timeously. The employer opposes the
application.
[6] The union was obliged to refer the dispute to this court within a
reasonable period of the failure of the CCMA to resolve the dispute on
12 May 1998. The dispute was, however, referred on 23 August 1999.
[7] I should mention that in terms of the amendment to section 191(11) of
the Labour Relations Act 66 of 1995, which came into effect on 2
February 1999, any outstanding dispute was required, at the best for the
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union, to be referred within 90 days of that date.There is no merit in
the contention that this amendment did not apply to disputes which had
arisen prior to it coming into operation.
[8] If, however, I were to assume that the certificate of 13 November 1998
is a valid one, then a reasonable time within which to refer the dispute
would have been about three months but possibly longer. In any event
the union thought that by 23 March 1999 it was reasonable to refer the
dispute to the Labour Court. This is why the union applied for a case
number.
[9] The result, on the premise supposed above, is that the union must
explain the delay between 23 March 1999 and 23 August of the same year,
a period of some five months. The explanation which is tendered does
not deal satisfactorily with the period. The Nelspruit office made
telephonic enquiries and referred the matter to its Johannesburg office
on 29 May. This office began to attend to the matter at the beginning
of July and applied for a case number to refer the dispute on 23 August.
The delay is, however, even greater and less acceptable if the validity
of the certificate of 13 November 1998 and the circumstances surrounding
and the union's conduct regarding these proceedings is taken into
account.
[10] The certificate which was issued on 13 November 1998 is, in my opinion,
invalid. Once a commissioner issues a certificate the commissioner is
functus officio unless possibly both parties request an amendment. See
Ruijgrok v Foschini (1999) 20 ILJ 635 (LC). There is no reason to
believe that the union itself believed that the certificate was properly
issued. If, however, there was such a belief it was utterly
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unreasonable. The union was negligent in referring this dispute for
arbitration when it was clearly a matter which should have been referred
to the Labour Court. It ought to have referred the matter to the Labour
Court by 13 November at the very latest. Because it was not referred by
this date, or indeed earlier, it was incumbent on the union to explain
honestly and openly why this was not done. The union was obliged to
explain its mistake and the circumstances surrounding the issue of the
replacement certificate. This has not been done.
[11] The affidavits which have been filed in support of the application had
not been approached with the requisite care and diligence. The union
has not seen fit to explain the position prior to 13 November fully as
it was obliged to do so. It should at least have confessed its mistake
and explain how it came about.
[12] The union submits that it has good prospects of success. Its case is
stated very simply and blandly. It says the employees were engaged in
an essential service, they were dismissed for striking without being
given an ample and sufficient ultimatum and without any explanation in
their vernacular of the ultimatum. They say the employer failed to
inform the union of their decision to dismiss the employees, claiming
that it did not recognise the union.
[13] The employer in its answering affidavit has set out in great detail the
factual circumstances surrounding the decision to dismiss the employees.
This clearly leaves bold allegations of the union in doubt. I am of the
opinion that the union's prospects of success, when weighed up against
the case which is made out by the respondents, and particularly when
viewed against the briefs which were issued and the warning that
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unlawful strike action could lead to dismissal, do not assist the union.
[14] The employer stated that it will suffer prejudice if this dispute were
to be referred. That must clearly be the case because a long time has
elapsed between the date of dismissal and the date that this matter will
come to trial.
[15] This is, in my opinion, a case where the application for condonation
should be refused. It is refused and the applicants are ordered to pay
the respondent's costs of the main application and this application,
jointly and severally, the one paying the other to be absolved.
DATED AT JOHANNESBURG ON THIS 21 st DAY OF JUNE 2000
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
Date of hearing: 15 June 2000
Date of judgment: 19 June 2000
For the applicant: Mr Zibi union representative
For the respondent: Adv T. C. Tiedemann instructed by Webber Wentzel Bowens
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