REVISED / REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D117/2000
DATE 2001/02/20
In the matter between:
JOHANN VAN WYK Applicant
and
FIBREWOUND (PTY) LTD Respondent
JUDGMENT DELIVERED BY THE HONOURABLE MS JUSTICE PILLAY
ON 20 FEBRUARY 2001
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TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD DURBAN
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J U D G M E N T
PILLAY J
[1] Section 147(2) and (3) of the Labour Relations Act 66 of 1995 (the LRA) allows the Commission
for Conciliation Mediation and Arbitration (the CCMA) to accept jurisdiction to resolve disputes
even though a council may have jurisdiction to do so. It may also refer disputes to the council
having jurisdiction. Whether the CCMA accepts the dispute or refers it to a council is entirely
at the discretion of the CCMA.
[2] The purpose of sections 147(2) and (3) is to dispense as far as possible with technical
objections to the CCMA as a dispute resolution forum and to have disputes dealt with
substantively. In this way one of the primary objectives of the LRA, namely to promote
effective dispute resolution, can be achieved.
[3] The respondent in this matter has objected in limine to the jurisdiction of the Court to try a matter
for alleged unfair retrenchment on the grounds that the CCMA conciliated a dispute which
should have been conciliated by a bargaining council. The applicant had referred the dispute
to the CCMA for conciliation. Both parties attended the conciliation. There was no objection
during the conciliation to the jurisdiction of the CCMA. The dispute remained unresolved and
the commissioner issued a certificate accordingly.
[4] The mere fact that a valid certificate was issued is sufficient compliance with the jurisdictional
prerequisite for referring the dispute to this Court. [Fidelity Guards Holdings (Pty) Ltd v
Epstein N.O. and Others [LAC] 2000(21) ILJ 2382.] For this reason alone the point in limine
falls to be dismissed.
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[5] It was further submitted for the respondent that section 191(1) of the LRA vested jurisdiction in
either a council or the CCMA exclusively.
[6] Section 191(1) provides the procedure for employees to challenge a dismissal. Section 147
deals with the functions of the CCMA. Subsections (2) and (3) of section 147 are not qualified
in any way by section 191(1) or any other provision. Furthermore, one of the “exceptional
circumstances" referred to in the heading of section 147 must be the fact that the dispute was
incorrectly referred to the CCMA.
[7] A further submission for the respondent was that the CCMA
should have exercised a legal discretion as to whether to accept or refer the dispute to the
bargaining council.
[8] The Notice of Guidelines on Conciliation Proceedings, Notice No 896 of 1998, provides in
paragraph 5.1:
"The policy of the CCMA is to discourage legal technicalities and to promote the resolution of
disputes in the interests of social justice and labour peace. Accordingly its policy is not to
determine jurisdictional disputes at the conciliation stage of the resolution of a dispute unless
it has no other option."
[9] If a party objects to the jurisdiction of the CCMA then paragraph 5.2 provides guidelines as to
how to deal with the matter. Clearly the policy of the CCMA is to attempt to resolve disputes
substantively as far as possible. That is the brief on which commissioners approach
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conciliation. Consequently, if neither of the parties raises any objections the commissioners
must endeavour to resolve the dispute substantively.
[10] I accept for the purposes of argument in this case that the CCMA conciliated the dispute
inadvertently. The commissioner may also not have applied his mind to the question as to
whether there was a bargaining council having jurisdiction. In the absence of any objection
the commissioner was not obliged to do so. It is not a situation where the CCMA is absolutely
barred from conciliating the dispute that should be before a bargaining council. Furthermore,
even if the commissioner had considered the question and concluded that there was a
bargaining council having jurisdiction, nothing in law precluded the commissioner from
conciliating the dispute.
[`11] Finally, the description that my brother PILLEMER AJ attaches to the practice of participating
in proceedings without demur and contesting jurisdiction thereafter as "unconscionable and
bordering on fraud” is apt in the circumstances of this case. [Fidelity Guards Holdings (Pty)
Limited v Epstein and Others 2000[21] ILJ 2009 [LC] at 2014I.]
[12] In the circumstances the point in limine is dismissed with costs.
JUDGE PILLAY
For the Applicant: Advocate P. Schumann
Instructed by: E. Jamieson & Company
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For the Respondent: Mr M S Omar
Instructed by: M S Omar & Associates
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