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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO J5860/00
In the matter between:
METZ TRANSPORT (PTY) LTD Applicant
and
THE FURNITURE, BEDDING AND UPHOLSTERY
INDUSTRY BARGAINING COUNCIL, GREATER
NORTHERN REGIONS First Respondent
MRS M MASTERS NO Second Respondent
JACOB MOLEFE Third Respondent
A BADENHORST NO Fourth Respondent
_______________________________________________________________________
JUDGMENT
________________________________________________________________________
JAMMY AJ
1. The Fourth Respondent in this matter was joined in the proceedings on application to that
effect made by the Applicant subsequent to the institution by it of proceedings in which it
seeks an order reviewing, correcting and setting aside the condonation of a late referral
of its dispute with the Third Respondent for conciliation by the First Respondent. Both
parties were initially unaware that the condonation order was in fact made by the Fourth
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Respondent and not the Second Respondent, as was at first thought to be the case. The
true factual position is not in dispute and the joinder of the Fourth Respondent is
accordingly not opposed.
2. The facts of the matter are variously described in the papers as being “confusing” and
“tedious”. In essence, they are the following.
3. The Third Respondent was dismissed by the Applicant on 20 April 1999. That dismissal
was alleged to be unfair and, on 28 April 1999, well within the thirty day time period
prescribed in Section 191 of the Labour Relations Act 1995, the dispute was referred by
the Applicant, through his trade union, to the First Respondent for conciliation. In that
referral the employer company was cited as Basemakers (Pty) Ltd. The reason for this
was the Third Respondent’s incorrect belief that Metz Transport (Pty) Ltd, (the Applicant
in casu ) was a wholly owned subsidiary of Basemakers (Pty) Ltd, which was therefore
technically his employer.
4. Following a delay of some four months, the First Respondent scheduled a conciliation
hearing for 26 August 1999 and notified the parties to that effect. Basemakers (Pty) Ltd
immediately responded in writing to the First Respondent advising that the Applicant was
at no stage employed by it and that for that, and other technical reasons, the referral was
defective.
5. When so advised by the First Respondent on 18 August 1999, the Third Respondent, on
the advice of his trade union, immediately withdrew his initial referral and submitted a
second referral to the First Respondent, bearing that date. In this instance Metz
Transport (Pty) Ltd, was cited as his employer.
6. The date of the Third Respondent’s dismissal having, as stated, been 20 April 1999, this
second referral was now technically approximately three months out of time. It was not,
at that stage, accompanied by any application for condonation in that context.
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7. Pursuant to that second referral, the First Respondent, by telefaxed letter dated
19 August addressed to the Third Respondent’s trade union and to “METZ BEDDING”,
informed them of a conciliation meeting scheduled for 26 August 1999.
8. On 25 August 1999 the Transvaal Furniture, Bedding and Upholstery Manufacturers
Association wrote to the First Respondent on behalf of the companies within the Metz
Group, including the Applicant, Metz Transport (Pty) Ltd and “METZ BEDDING” . The
letter recorded that the employer, Metz Transport (Pty) Ltd had “to date not received a
mediation notice”, that the dismissal in question had occurred four months previously,
that the first referral was defective as the incorrect employer was cited, that conciliation
did not take place within the prescribed thirty day period and that the second referral was
also defective as having been late and not supported by a condonation application. The
letter concluded as follows -
“Should a mediation letter eventually be sent to the correct employer, we will oppose
condonation of the late referral.
Should you further deem it wise to condone the late referral, we will have no hesitation in
taking you on review to the Labour Court to test your reasons for granting condonation”.
9. Presumably on the strength of that letter, the Applicant did not attend the conciliation
meeting on 26 August and on 9 September 1999, a certificate to the effect that the
dispute remained unresolved as at that date, was issued by the First Respondent, signed
to that effect by the Conciliator, whose name was given as Mrs M Masters.
10. The dispute was then referred by the Third Respondent to the Commission for
Conciliation Mediation and Arbitration (“the CCMA”) for Arbitration, the hearing of which
was duly scheduled for and commenced on 29 February 2000. At that hearing the
Applicant contended, and the Commissioner ruled, that the CCMA lacked jurisdiction to
Applicant contended, and the Commissioner ruled, that the CCMA lacked jurisdiction to
determine the dispute as the Third Respondent had not applied for condonation of his
late referral.
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11. The Third Respondent was advised to re-refer the matter with a simultaneous
condonation application and on 23 August 2000 (some six months after the CCMA ruling
referred to,) proceeded to do so. The application for condonation was opposed by the
Applicant as had earlier been its indicated intention and it is common cause that an
answering affidavit was filed by it with the First Respondent on or about 31 August 2000.
12. The next development as far as the Applicant was concerned was the receipt from the
First Respondent of a notice of a conciliation meeting to be held on 26 October 2000. The
Applicant’s representatives immediately responded to that notice to the effect that the
Applicant had not been informed of the outcome of the application for condonation. On
23 October 2000 the First Respondent replied as follows –
“Your letter dated 16 October 2000 refers.
No receipt of condonation outcome. The Council hereby informs you that condonation has
been granted and that the matter is set down for 26 October 2000 at 10:30 in Room 802, 8 th
Floor”.
13. It is not disputed that it was only on 14 February 2001, after numerous written requests
to the First Respondent to furnish them, that the Fourth Respondent’s written reasons
dated 4 October 2000 for the granting of condonation, were received by the Applicant.
Those reasons were in the form of a short letter and it is appropriate, in my view, that
they be here recorded –
“ REASONS :
1 The former General Secretary of the Council Mr P C Smit received the
referral well within time. To and extend ( sic) he tried to apply Section 135 of
the Act, to attempt to resolve the issue.
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2 Mr Metz, the Managing Director of Metz Transport (Pty) Ltd agreed to an
extend ( sic) that they would try and settle out of Conciliation. He then went
overseas and the matter was suspended awaiting his return. Upon return
he was not interested in settling nor further discussion of the matter.
3 The Applicant’s representative requested the Secretary to issue a certificate
which he failed to do.
4 The employer however did not file an opposing application as to why
condonation should not be granted.
5 The Applicant requested the former Secretary to submit an affidavit
concerning the above, which he later declined to effect.
6 The Applicant submitted all relevant documents including an application for
condonation and showed good cause as to why condonation should be
granted. Therefore the late referral was condoned”.
14. What is, inter alia, immediately apparent from those reasons is that the Applicant’s
opposing affidavit in the condonation application, which was filed with the First
Respondent at the end of August 2000, was not before the Fourth Respondent when the
application was considered by him and his ruling was made.
15. The conciliation meeting was held as scheduled on 26 October 2000 and was attended by
the Applicant and the Respondents. The dispute was not resolved and on that date a
certificate to that effect was issued and signed by the Second Respondent. Pursuant
thereto the Third Respondent has referred the matter for the second time to the CCMA for
Arbitration, which, at this time, is still pending. In the interim, it is the Fourth
Respondent’s condonation ruling of 4 October 2000, which is challenged in these
proceedings.
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16. The factors advanced by the Third Respondent in his application for condonation before
the Fourth Respondent, were, simply stated, that although the reference in question was
fourteen months out of time it had originally been submitted on time but citing the
incorrect employer, that further delays were the result of administrative confusion
between executives of the Applicant and the General Secretary of the First Respondent
and that the Applicant had not attended the conciliation meeting as a consequence of
incorrect notification thereof by the First Respondent. Cursory submissions were made
regarding the Third Respondent’s prospects of success and the prejudice which he
contended that he would suffer if the application was refused. This however, simply
related to the fact that he had been unfairly dismissed and unable to find alternative
employment.
17. The Applicant’s opposition to the condonation application, as recorded in its replying
affidavit, was based on what it submitted was the extreme lateness of the referral, the
fact that as early as 29 February 2000 the Third Respondent had been alerted by the
CCMA to the effect that he should make a fresh referral supported by an application for
condonation, that this notwithstanding he took approximately a further seven months to
do so and that he had not shown realistic prospects of success in the main dispute.
18. In granting condonation, the Applicant now submits, the Fourth Respondent based his
findings on “non-existent facts and facts that are irrelevant for the purposes of
the condonation application” . The trite principles to be taken into account in any
application of that nature were ignored by him. Save for contending that the lengthy
delays which occurred were attributable to persons other than himself, the Third
Respondent had made no further attempt to explain them.
19. In the result, the Applicant contends, the Fourth Respondent’s findings are grossly
irregular and not justified on the facts presented to him.
20. In its opposition to this application, the Third Respondent raises an initial point in limine.
The condonation ruling and the subsequent issuing of the certificate sought to be
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reviewed and set aside are not, it submits, reviewable. In the first instance they are of an
interlocutory nature and do not put an end to the dispute between the parties. Secondly
incomplete proceedings before the CCMA should only be subject to review where grave
injustice may otherwise result. That, it submits, is not the case in the present matter.
21. I have greater difficulty with the first of these submissions than with the second. Whilst it
is correct that the granting of condonation and the issue of the non-resolution certificate
by the Fourth Respondent occurred in the course of the dispute resolution procedure
invoked by the Third Respondent and may, in the strict sense of that term, be defined as
interlocutory, it seems to me that this is a semantic issue rather than a pragmatic one.
The Fourth Respondent’s finding determined the entitlement of the Third Respondent to
pursue the process. Had condonation been refused, that, as the Third Respondent
submits, would have aborted the process and, in a proper case, been subject to review. It
does not however follow, in my opinion, that the contrary decision, allowing condonation
and thereby the further pursuit of the process, can validly be differently categorised. The
issue of whether or not the late referral of the dispute for conciliation should or should not
be allowed, stands alone as an independent matter for adjudication. In that context the
Fourth Respondent’s determination is, in a proper case, reviewable.
22. Apposite to the second issue raised in limine by the Respondent, is the comment in
Erasmus: Superior Court Practise at B1382
“As a general rule a Superior Court will not by way of entertaining an application for review
interfere with incompleted proceedings in an Inferior Court” .
23. What the Applicant is seeking to do in this matter, the Third Respondent contends, is to
conduct this litigation on a piecemeal basis and disapproval in that regard, applicable it is
conduct this litigation on a piecemeal basis and disapproval in that regard, applicable it is
submitted both to appeals and reviews, is expressed, by way of example, in
Wahlaus v Additional Magistrate, Johannesburg 1959(3) SA 113(A) at 119 C120E
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The issue in that matter was an application for the review of a Magistrate’s decision and, finding
no ground for such review on account of any irregularity, OgilvieThompson JA commented:
“Nor, even if the preliminary point decided against the accused by a Magistrate be
fundamental to the accused’s guilt, will a Superior Court ordinarily interfere – whether by
way of appeal or by way of review – before a conviction has taken place in the Inferior
Court”.
24. Reference in that judgment was also made to the comments of the authors of Gardiner
and Lansdown (6th Edition Volume 1 Page 750) where, dealing with the jurisdiction
of a Superior Court in review or appeal proceedings, the following is stated -
“In general however, it will hesitate to intervene, especially having regard to the effect of
such a procedure upon the continuity of proceedings in the Court below, and to the fact
that redress by means of review or appeal will ordinarily be available”.
25. Those policy considerations, in my opinion, will constitute the governing criteria in a
determination of this nature where all other things relevant to the issue are equal. Those
other factors necessarily involve an assessment of the broad criteria for review which
have been established in a line of relatively recent authorities. Essentially, the Fourth
Respondent’s ruling will be vulnerable if it can be shown to the Court’s satisfaction that it
is not justifiable on the submissions before him to a degree which indicates that he could
not properly have applied his mind to them.
26. It is common cause that the Fourth Respondent was not at the time aware of the fact of
the Applicant’s opposition to the condonation application and that, through no apparent
fault of his own, the Applicant’s answering affidavit was not before him and although it
had been properly filed, had not been brought to his attention.
27. In determining the matter therefore, all that was before the Fourth Respondent was the
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Third Respondent’s application and the correspondence supporting it. The explanation
for the delay in referring the matter must therefore be assumed to have been acceptable
to him. The allegation of unfair dismissal was not one on which he was required to
adjudicate. It did however constitute the substance of the dispute which had been
referred. Its validity or otherwise would ultimately be determined in the Arbitration
proceedings which would now ensue.
28. No case in these circumstances, has in my opinion been established to substantiate the
allegation that the Fourth Respondent did not apply his mind to the material before him
and/or that his determination was not justified on those submissions and uncontested
facts. Whilst it is true that the Third Respondent’s prospects of success were, in general
terms, inadequately analysed in his application, that alone does not seem to me to be a
reason for denying him the opportunity for that aspect of the matter to be fully and
properly determined.
29. For all of these reasons, I conclude that no adequate grounds have been advanced by the
Applicant to warrant the interference by this Court with the condonation ruling by the
Fourth Respondent or, on any other basis, to impugn the validity of the certificate of
outcome issued pursuant thereto. The order that I make is accordingly the following.
The application is dismissed with costs.
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B M JAMMY
Acting Judge of the Labour Court
9 July 2001
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Representation:
For the Applicant: Advocate S Bernhardt instructed by Julian Pokroy Attorney
For the Third Respondent:: Advocate FA Boda instructed by Dison Ndlovu Attorneys
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