JUDGMENT
Sneller Verbatim/LR REVISED /NOT REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J3032/00
Heard on: 2001-07-24
Delivered on : 2001-07-26
In the matter between
J J SLABBERT Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
S.A. MAGWAZA Second Respondent
SPRINGBOK PATROL (PTY) LTD Third Respondent
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J U D G M E N T
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PILLAY AJ : This is a review of the decision of the second respondent
commissioner refusing condonation of the late referral to conciliation.
The first ground on which the decision is challenged is that the application
for condonation had been granted on 5 July 1999 by Commissioner F
Ahwirengobeng; therefore the matter was res iudicata before the second
respondent.
The third respondents submitted that Commissioner F Ahwirengobeng had
indicated that she could not hear an application for condonation and that such
application should be heard by the arbitrating commissioner in limine. This is a
dispute of fact.
The second respondent had in fact considered and issued a ruling on
condonation on 22 June 2000. He pertinently stated that he enquired about his
jurisdiction and "it came to attention that this matter was not properly condoned
at conciliation." There was no proof that a ruling had been issued following the
proceedings of 5 July 1999 other than the applicant’s mere allegation to that
effect. There is no basis to set aside this finding of the second respondent.
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JUDGMENT
Accordingly, the argument that the ruling should be set aside on the grounds that
the matter was res iudicata is rejected.
The second argument was that the second respondent was bound to
arbitrate the dispute once the certificate had been issued on the basis of the
decision on the matter of Fidelity Guards Holdings (Pty) Ltd v Epstein NO & Others
[2000] 12 BLLR 1389 (LAC). The certificate is prima facie but not irrefutable proof
that the dispute had been conciliated - nothing more, nothing less. Furthermore,
if the jurisdiction of the commission is challenged the arbitrating commissioner is
duty bound to consider such an application relating to the jurisdiction of the
CCMA. The failure by the arbitrator to consider such an application could result in
the award being reviewed and set aside.
The application to review and set aside the second respondent's ruling under
case number GA53438 in which the second respondent refused to condone the
late referral for condonation is refused with no order as to costs.
PILLAY J
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