IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
Not reportable
CASE NO: D277/99
DATE HEARD: 2002/10/23
DATE DELIVERED: 2002/10/23
In the matter between:
P HLEKWAYO First Applicant
Q P MLAMBO Second
Applicant
and
THE SECRETARY, DEPARTMENT OF
FINANCE First
Respondent
T W MAJAKE Second
Respondent
THE CPMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third
Respondent
JUDGMENT DELIVERED BY
THE HONOURABLE MS JUSTICE PILLAY
ON 23 OCTOBER 2002
ON BEHALF OF APPLICANT : ADVOCATE M DE KLERK
INSTRUCTED BY : NGWENYA & ZWANE INC.
ON BEHALF OF RESPONDENT : ADVOCATE C BOLTON
INSTRUCTED BY : STATE ATTORNEY –
KWAZULU
NATAL
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD DURBAN
JUDGMENT
PILLAY J
[1] This is an application to review and set aside a ruling of the second
respondent Commissioner. The Commissioner ruled that the CCMA
had no jurisdiction to arbitrate this matter as the dispute arose in 1995
when the Labour Relations Act, Act No 66 of 1995 had not come into
effect. The Commissioner dismissed the matter.
[2] The Commissioner must, firstly, be criticised for failing to provide any
reason for his ruling. His reasons are not evident from any record that
he kept. No adequate record is before me. I am left to decide this
matter on the basis of the facts that are common cause as presented in
the affidavits of the parties.
[3] The applicant contends that the ruling falls to be reviewed and set aside
because the Commissioner failed to take into account the fact that the
dispute arose on the date on which one Masondo was appointed, that is
on the 29th November 1996. The Commissioner was preoccupied with
the fact that the issue was raised in 1995.
[4] On the respondent's version the evidence is that Masondo might have
been appointed three months before the court order directing that he be
paid his salary for three months was granted. Whether the court order
actually directed the respondents to appoint Masondo is not clear.
However, it appears not to be in dispute that that might have been the
order of Court.
[5] What is in dispute, however, is whether Masondo was appointed before
the Court order and whether that appointment was confirmed by the
Court.
[6] The first applicant maintains that irrespective of whether there is a court
order or whether Masondo was appointed by agreement at any stage
before the court order, the date on which the dispute arose fell within
the jurisdiction of the Labour Relations Act. The Commissioner had a
duty to enquire into all the facts about the dispute. The dispute is not
about the first applicant's right to promotion but a right to fair labour
practice and to be considered fairly for promotion.
[7] In the absence of any information from the Commissioner, I rely on, as I
have said, the facts that are common cause. The Commissioner ought
to have considered that the dispute might have arisen on the 29th
November 1996 because that is the basis on which the applicant
contended that the dispute arose after the Labour Relations Act came
into operation.
[8] The new information that Masondo was appointed three months before the
court order is information within the knowledge of the first respondent.
Whether that information was before the Commissioner is not clear in
the absence of a record.
[9] This matter ought to be reheard by another Commissioner who should
keep an open mind to all the facts relating to the cause of action and
the date on which that cause arose.
[10] I would like to sound a word of concern. Assuming that the Arbitrator or
the Commissioner finds that he or she does have jurisdiction and
entertains the arbitration, what might the appropriate remedy be? If it is
proved that there is an order of Court, the respondent's hands would be
tied. The cases that you referred to of the other four applicants were
appointments made long before the Labour Relations Act. So I think
that both parties need to apply their minds towards resolving this
dispute substantively, without incurring any further costs in litigation. It
might be a technical victory for the time being. I do not know that it is
going to get you anywhere.
MS BOLTON M'Lady, sorry, just before the order is made, perhaps
then the matter could be referred for conciliation first at the bargaining
council, that the certificate issued initially at the CCMA would then not
stand. Because they do have a conciliation and then the arbitration.
So perhaps if it is referred.
PILLAY J Well, I don't have a problem about referring it back for
conciliation but it seems to me that if ever there was a will to conciliate
you do not need a court order to do that, but if that's what both of you
would prefer me to do I will refer it back to the bargaining council for
conciliation.
MS BOLTON I think that should be spelt out because they're quite ...
[intervention]
PILLAY J Are you okay with that, Ms de Klerk?
MS DE KLERK M'Lady, I don't have instructions on that.
Unfortunately I can't see my attorney. I'm sure there wouldn't be any
problem in that regard, especially in light of what M'Lady has
suggested.
PILLAY J So should I make the order for conciliation?
MS DE KLERK Perhaps ...[incomplete]
JUDGMENT (Continued)
PILLAY J
[11] The ruling of the second respondent Commissioner is set aside.
[12] The matter is referred back to the General Public Service Sectoral
Bargaining Council for conciliation.
[13] There is no order as to costs.
MS BOLTON M'Lady, shouldn't you also spell out conciliation and
arbitration, if necessary? Just being that because I am on the
bargaining council and these little points, it depends which
Commissioner it goes before, will create a lot of difficulties.
PILLAY J Are you okay with that Ms de Klerk?
MS DE KLERK Yes, M'Lady.
JUDGMENT (Continued)
PILLAY J The order is amended by the insertion of the words, "and, if
necessary, arbitration", after the word, "conciliation".
____________________
JUDGE D PILLAY