JR1169/01-mc
Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR1169/01
2001-10-24
In the matter between
MHLAMBI Applicant
and
EAST RAND N17 PRIVATE HOSPITAL Respondent
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J U D G M E N T
___________________________________________________________
LANDMAN J : This is an application brought by Ms Jeanette Mama Mhlambi to
review and set aside a ruling by a Commissioner of the CCMA. It appears that a
second referral of a dispute concerning the dismissal of Ms Mhlambi was late. She
applied to the CCMA to condone the late application.
An application for condonation must be brought in terms of the Rules of the
CCMA. Rule 19 provides that the party bringing the ap plication must sign a notice
of application and it must be supported by an affidavit in which various matters
must be set out. The party op posing the application may then deliver a notice of
opposition and an answering affidavit. Once this has been done, the party
initiating the proceedings, in this case Ms Mhlambi, may lodge a replying affidavit
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1 JUDGMENT
within five days on the day on which any notice of opposition and an swering
affidavits is delivered. Deliver means serve on the other parties and file with the
Commissioner.
In this instance her employer, East Rand M17 Private Hospital, did not file an
affidavit. Instead a letter dated 27 June 2000 was sent to the CCMA. Annexed to
it was a document which appears to be an unsworn statement. The CCMA did not
make the letter of 27 June 2000 available to Ms Mhlambi. It did not inform the
employer that it was obliged to put its case under oath. The Commissioner,
however, took the letter and unsworn statement into account and issued a ruling
in terms of which the Commissioner declined to condone the late application.
Not only did the Commissioner not comply with the Rules of the CCMA, the
Commissioner did not comply with the rules of natural justice. The applicant was
not allowed any opportunity whatsoever to deal with the response by her
employer.
In the circumstances this constitutes a gross irregularity. The con donation
ruling is reviewed and set aside. The matter is referred back to the CCMA for a
fresh hearing on the question of the condonation. This is to be conducted before a
commissioner other than the se cond respondent. East Rand N17 Private Hospital,
the third respondent, is ordered to pay the applicant's costs of this application.
____________________
A A Landman
Judge of the Labour Court of South Africa
JR1169/01-mc 3
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JUDGMENT