D1321/99PR/3 1 JUDGMENT
JUDGMENT
PILLAY J
[1] This is a review of the decision of the second respondent made in limine in arbitration
proceedings. It is not important for purposes of this case to distinguish whether the review is
in terms of Section 145 or 158.
[2] The second respondent had ruled on the basis of the decision in Rustenburg Platinum Mines
Ltd v CCMA & Others 1998 (19) ILJ 327 (LC) that the signatures of the employees were
required on the referral form in terms of Section 191(1). In the Rustenburg Platinum decision
at page 328, the Court had rejected the view that the LRA contemplated someone other than
an employee, such as a trade union, could be the referring party.
[3] The employees omitted to bring to the attention of the second respondent the decision of
Seady AJ in Moolman Brothers and Gaylard N.O. & Others 1998 (19) ILJ 150 (LC). That
case dealt with whether Section 191(2) requires the employee party and not anyone else,
even if it is a representative, to demonstrate good cause in an application for condonation.
The Court disagreed with such a construction. At page 155 (DF) it found the approach was:
"overly technical and does not accord with the use of the word 'employee' in subsections 1, 3
and 5 of Section 191. It must be read to mean the party who refers a dispute because the
Act clearly contemplated that someone other than an employee could be the referring party,
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D1321/99PR/3 2 JUDGMENT
for example, a trade union that brings the application on its own behalf and on behalf on its
members."
[4] The second respondent accordingly made a decision on the basis of the information properly
before him. If the second respondent had been aware of the decision in the Moolman
Brothers case, he should have alerted the parties to it. However, his failure to do so does not
render the award reviewable. The fact that the ruling has generated an inequitable result in
that the applicants are barred from pursuing their dispute through the CCMA, is not a sufficient
basis on which the Court can set aside the ruling.
[5] In the circumstances THE APPLICATION IS DISMISSED WITH NO ORDER AS TO COSTS.
PILLAY J
Date of hearing: 11 September 2000
Date of judgment: 11 September 20001019
For the applicants: Mr N. Nkomo from J. Surju Attorneys.
For the respondents: Mr N F Kocks from Kocks Dreyer Attorneys
REVISED AND REPORTABLE
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IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D1321/99
DATE 11 September 2000
In the matter between:
F A W U & OTHERS Applicants
and
CLOVER SA LTD Respondent
JUDGMENT DELIVERED BY
THE HONOURABLE MS JUSTICE PILLAY
TRANSCRIBER
SNELLER RECORDINGS
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