IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J2116/00
In the matter between :
SOUTH AFRICAN BROADCSTING CORPORATION Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 1 st Respondent
RUSSELL MOLETSANE N.O. 2 nd Respondent
DUMISA QUPE 3 rd Respondent
SIMON MAGASELA 4 th Respondent
NALEDI RAMABOA 5 th Respondent
SINA MAHLASELA 6 th Respondent
JUDGMENT
MOERANE AJ:
1. This is an application in terms of section 158(1)(g) of the Labour Relations Act No. 66 of 1995
(“the Act”), to review and set aside the ruling by the 2 nd Respondent, (“the Commissioner”)
given on 28 April 2000, in terms of which he condoned the late referral of the dismissal dispute by
the 3 rd to 6 th Respondents to the 1 st Respondent, (“the Commission for Conciliation, Mediation
and Arbitration” or “the CCMA”) .
2. It is common cause that the 3 rd to 6 th Respondents were dismissed with effect from 31 July 1997,
in pursuance of a restructuring exercise by the Applicant. It is also common cause that the dispute
was referred to the 1 st Respondent by the 3 rd Respondent on 9 July 1998, the 6 th Respondent on
8 July 1998 and by the 4 th and 5 th Respondents on 5 May 1999, but possibly in July 1998.
3. The Applicant has brought the review application on the following grounds :
3.1 with regard to the 3 rd to 6 th Respondents – their referrals were so out of time, the
explanation for the delay so weak and the prejudice to the Applicant so grave that the 2 nd
Respondent’s decision to grant condonation in the circumstances amounts to misconduct,
alternatively, he exceeded his power in granting such condonation.
3.2 with regard to the 4 th and 5 th Respondents – both were members of a union with which
the Applicant had a collective agreement that required all dismissals to be referred to
arbitration. Consequently, the 1 st Respondent lacked jurisdiction to conciliate and
arbitrate their dispute; and, therefore, the 2 nd Respondent should have made such a
ruling.
4. The application was opposed by the 3 rd to 6 th Respondents.
5. It will be convenient to begin with a consideration of the second ground of
review.
6. It is common cause that, at the time of their dismissal, the 4 th and 5 th Respondents were members
of the Media Workers’ Association of South Africa (“MWASA”); there was a collective
agreement between the Applicant and MWASA, which regulated the procedure to be adopted in
disputes involving alleged unfair dismissals, and the said agreement was still in operation.
7. In terms of Clause 10 of the said agreement, a dispute arising from dismissal must
be referred to private arbitration under the auspices of the Independent Mediation
Service of South Africa (“IMSSA”). There is a dispute between the parties
whether or not the dispute was referred to private arbitration in terms of the said
agreement. What is clear, however, is that if it was so referred, the arbitration, for
reasons which are not explained in the papers, was not proceeded with and no
decision was ever made by any arbitrator in terms of the said agreement.
8. In terms of section 23 of the Act, a collective agreement binds the parties to the agreement and
each party to the agreement and the members of every other party to the agreement, in so far as
the provisions are applicable between them. Collective agreements underpin the very system of
collective bargaining and every effort should be made to protect them. In the matter of Building
Construction & Allied Workers’ Union & Others v Masterbuilt CC 1987 (8) 670 ILJ (IC) at 677
B – I Landman AM, as he then was, said the following :
“The fact of the matter is that within a certain closed community consisting of employer, the
union and employees/union members, the rules between the employer and organised labour are
regarded as having binding authority. The approach which will be adopted is one which is
based on the recognition by this court that recognition agreements provide rules which are
acknowledged by the parties to a particular relationship to be binding upon themselves. The
parties legitimately expect that the rules will be observed by all the parties concerned. It is of the
utmost importance for the court to give effect to the rules of such a procedural agreement
because in this way the court will be fostering the concept of collective bargaining and the
related concept of selfgovernment.”
Although these words were spoken in relation to the 1956 Labour Relations Act,
in my view they apply with equal force to the current Act, and I am in respectful
agreement therewith.
9. It is incumbent on any commissioner acting under the auspices of the CCMA to ascertain whether
or not he or she has the jurisdiction to hear a matter brought before him or her. It is no defence to a
challenge based on his lack of jurisdiction to say that the parties requested him to adopt a
procedurally irregular step or condoned or connived in it, as the 2 nd Respondent in hoc casu
seems to be saying. I find that the 2 nd Respondent did not at all consider the question whether or
not he had the jurisdiction to hear this matter – in fact, he deliberately refrained from considering
it. It is my considered view that the 4 th and 5 th Respondents were bound by the dispute resolution
provisions contained in the said collective agreement and that they did not comply therewith.
Consequently, I find that the 2 nd Respondent did not have the jurisdiction to hear the applications
of these two Respondents. In my judgment, the 2 nd Respondent’s conduct of condoning the late
referral of the dispute before determining the jurisdictional issue amounts to such an irregularity
that his ruling condoning the late referral of the dispute by the 4 th and 5 th Respondents stands to
be reviewed and set aside. I rule accordingly.
10. I shall now deal with the application for the condonation of the late referral.
11. There is not much in dispute between the parties with regard to the material facts
in this matter. Such facts may be summarised as follows :
11.1 As stated above, the 3 rd to 6 th Respondents were dismissed by the Applicant with effect
from 31 July 1997 on the ground of operational requirements.
11.2 After their dismissal the 3 rd and 6 th Respondents referred the dispute to the CCMA on 9
July and 8 July, respectively and the 4 th and 5 th Respondents, on the 5 th May 1999.
There is a suggestion in the papers that the 4 th and 5 th Respondents might have referred
the dispute to the CCMA in July 1998, and that was the finding of the 2 nd Respondent.
However, the only LRA Forms 7.11 on record relating to these Respondents are dated 5
May 1999.
11.3 Subsequent to their dismissals the 3 rd to 6 th Respondents instructed Attorney Peter
Nkaiseng to handle this matter on their behalf. They later instructed Karichowsky,
Solomon & Charalambous Attorneys to represent them.
11.4 The only reason given for the late referral of the dispute was that the said Respondents
did not want to jeopardise their chances of obtaining a contract from the Applicant. The
2nd Respondent considered this a satisfactory reason.
11.5 The said Respondents apparently accepted the termination of their services
and began the process of negotiating to be awarded the said contract by
the Applicant. This process was no bar to the Respondents challenging
their dismissals by referring the dispute to the CCMA, if they were so
advised. Neither did they request the Applicant to agree to the extension of
the time within which they could refer the dispute to the CCMA.
11.6 According to the Applicant, as a result of the delay in referring this matter
to the CCMA, certain important witnesses had left its employ, and in one
case, the country as well. That placed the Applicant at the risk of great
prejudice were the application for condonation to be granted.
12. It is settled law that an applicant for condonation must show “good cause”. The
factors that are considered to establish whether “good cause” has been shown are
the degree and extent of the delay, the explanation therefor, the prospects of
success and the importance of the matter. These factors are interrelated and
individually important, but the weight to be given to any one of them in any given
case may vary. For instance, the importance of the matter and good prospects of
success may tend to compensate for a long delay and a weak explanation. With
regard to the explanation, such must cover the entire period in respect of which
condonation is sought.
See : Melane v Santam Insurance Company Ltd 1962 (4) SA 531 (A).
13. The Applicant argues that the 2 nd Respondent failed to exercise his discretion judicially upon a
consideration of all the relevant facts and failed to apply relevant legal principles. Although he
referred to the abovementioned case in his ruling, the 2 nd Respondent, so the argument goes,
does not understand the principles set out in the Melane case. Support for this submission is said
to be found in the manner in which the 2 nd Respondent expressed himself when dealing with the
issue of the prospects of success. Reference is made to the following remarks :
“Mr Commissioner : Yes, look the issue of – the condonation issue, it has been
held, you should be knowing that that you know you do not just consider the reasons for the
dismissal – the reason for the delay, you are also include things such as the prejudice suffered by
the other party, the prospect of success because why then do you grant condonation if you do not
have the – I agree with you that where you discuss the merits of the case, especially on the
application for condonation it is a matter of where people testify …(INAUDIBLE) … I simply do
not understand how the Appellate decision – I have forgotten the citation of that case came to say
one of the issues that we must take into account is prospects of success because surely one must
be given an opportunity to crossquestion if you deal with the merits of the case. I mean this is
common sense but the problem it that is is an Appellate Division decision? Sanlam – Sanlam
Insurance Company, 1961 case, you know said one of the issues that we must take into account is
prospects of success. But I always say in my decision that look it is very difficult for me to come
on the issue of the prospects of success because this is a matter where people must be cross
questioned or so on the merits of the case.”
See : Record page 574 line 28 to 575 line 23. (Trancript page 66 to 67).
14. There appears to be much force in the Applicant’s submission that the 2 nd Respondent did not
understand the principles in the Melane decision. To the extent that I understand what the 2 nd
Respondent is trying to say, (it takes considerable effort to try to understand what he is saying), it
appears to me that his concept of the “prospects of success” and how to establish them on the
evidence, is seriously flawed. I do not accept the submission advanced on behalf of the
Respondents that when the 2 nd Respondent made reference to the “Sanlam Insurance Company”
Respondents that when the 2 nd Respondent made reference to the “Sanlam Insurance Company”
case, he was referring not to the Melane case, but to some other case. It is clear that, on account
of his flawed understanding of the principle in the Melane decision, the 2 nd Respondent failed to
determine the role that the issue of the prospects of success played in the application for
condonation. He does not seem to have given that factor any weight at all, and to the extent that he
failed to do so, in my view, he committed a serious irregularity. To compound matters, the 2 nd
Respondent does not appear to have given any or sufficient consideration to the fact that, given the
fact that important witnesses had left its employ, and in one case, the country, the Applicant would
be prejudiced by the granting of condonation. Even when dealing with the issue of prejudice, he
did not mention these facts.
See : Record page 221 paragraphs 19 and 20 (also numbered page 501).
15. For the reasons set out above, it is my judgment that the ruling of the 2 nd Respondent wherein he
condoned the late referral of the dismissal dispute of the 3 rd and 6 th Respondents should be
reviewed and set aside. I rule accordingly.
16. The Applicant also applies for the review and setting aside of the 2 nd Respondent’s ruling on
further irregularities that allegedly occurred during the hearing. The alleged irregularities are the
following :
16.1 The 3 rd to 6 th Respondents were represented at the hearing by Mr Soviti, an attorney.
However, the 2 nd Respondent allowed a Ms Govender, an attorney who had previously
represented the said Respondents, but who had withdrawn, to make representations on
behalf of the said Respondents. The 2 nd Respondent sought to justify his decision to
allow Ms Govender to participate in the proceedings by claiming “ the right to call
anyone who is not a party to this forum to assist” him.
See Record page 564 line 16 – 19. (Trancript page 56).
He did not disclose the source of such right or authority, and it is doubtful
if he has it. If, however, he does have it, it should certainly not be
exercised in the manner that he did.
16.2 Although the 2 nd Respondent was in possession of the affidavits relied on by the 3 rd to
6th Respondents, he proceeded to allow the 4 th Respondent to lead viva voce evidence
without being sworn in and being subjected to crossexamination, and to argue the
condonation application himself, even though Mr Soviti was on record and was present
as the attorney for the said Respondents. After the 4 th Respondent had virtually
completed giving his evidence and making his presentation, the 2 nd Respondent sought
to justify his decision to allow him to do so on the following basis –
“Mr Commissioner : Let me – can we deal with another point, after the reason for
– you see the affidavits are here, basically, I just wanted you to add something that you
think we have forgotten to add, something like that. I think that I can make a decision on
– based on this affidavit – answering affidavit. I do not want you to say many, many
things, just to highlight – where I must concentrate on, and if ever you missed something,
you must tell me basically. I will be able to be in a position to make a decision based on
these affidavits. Do you still want to talk on the reasons for the delay?
Magasela : Yes, to add.
Commissioner : Yes.”
See : Record page 565 line 12 – 25. (Transcript page 57).
17. The submissions made on behalf of the Applicant are justified. A perusal of the record of the
proceedings bears this out. The proceedings can only be described, without exaggeration, as a
shambles – a case study of how not to conduct a hearing, even a CCMA hearing which allows for
a degree of informality. The 4 th Respondent’s evidence and submissions extend over 18
continuous typed pages of the record (from page 557 line 27 to 574 line 21 or 49 to 66 of the
Transcript.) It only came to an end when someone who is not identified in the Transcript, but
who most probably was Mr Chikane, the Applicant’s representative at the hearing, objected to
the fact that the merits were now being canvassed by the 4 th Respondent who was not talking
under oath and who would have to be questioned on what he was saying.
See : Record page 574 line 23 to 27 (Transcript page 66).
18. By permitting Ms Govender to appear and represent the said Respondents as stated above and by
allowing the 4 th Respondent to give unsworn testimony and make submissions as described
above, the 2 nd Respondent committed a reviewable irregularity. The said irregularities are serious
enough to warrant the setting aside of the proceedings, which I propose to do.
19. With regard to costs :
19.1 The 1 st and 2 nd Respondents indicated that they were abiding the decision of the Court.
Notwithstanding such indication, the 2 nd Respondent sought to introduce an
“Explanatory Affidavit” which, while purporting not to oppose the application,
vigorously defends his ruling and concludes by stating that he is of the view that the
Applicant is not entitled to relief either as sought or at all. I do not believe that such
conduct on the part of the 2 nd Respondent warrants an adverse costs order against him
and I do not propose making any such order.
19.2 The normal rule is that the costs follow the result. However, I have a wide
discretion in considering and awarding costs. One of the factors I shall
take into account is the fact that at the time of the hearing the Respondents
were unemployed. The Applicant is a large public corporation with a deep
pocket – that much I can take judicial notice of. Furthermore, there is
nothing in the conduct of the Respondents that warrants any censure. They
were obviously attempting to vindicate what they believed to be their
rights in an employer/employee situation. I do not believe that I should
order any of them to pay the Applicant’s costs. I, therefore, do not propose
to make any order of costs against the Respondents.
20. The final question I have to consider is the form of order to give.
20.1 In the light of the finding I made with regard to the issue of jurisdiction it will be
appropriate to make a declaration of my finding and then set aside the ruling of the 2 nd
Respondent for want of jurisdiction.
20.2 With regard to the applications of the 3 rd and 6 th Respondents, I have already found not
only that the proceedings were vitiated by irregularities, but also that in considering the
merits of the applications for condonation the 2 nd Respondent failed to apply the
applicable legal principles and failed to take into account matters that he should have,
thereby committing serious and reviewable irregularities. On those grounds the ruling of
the 2 nd Respondent in relation to the applications of the 3 rd and 6 th Respondents falls to
be set aside. Had I not found jurisdictional grounds for setting aside the 2 nd
Respondent’s ruling in relation to the 4 th and 5 th Respondents, I would have found that
the same grounds as I did in relation to the 3 rd and 6 th Respondents apply to them a
fortiori, based on the fact that their period of delay was, in all probability, longer by
about 10 months.
20.3 Furthermore, I do not consider this to be a case where I can properly substitute my
discretion for that of the 2 nd Respondent, and no application has been made to me to do
so.
20.4 Finally, I have to consider whether or not to remit the matter to the 1 st Respondent for
the application for condonation in respect of the 3 rd and 6 th Respondents to be
considered afresh by a Commissioner other than the 2 nd Respondent. I believe that
whether or not I make such an order, the 3 rd and 6 th Respondents would be entitled to
approach the 1 st Respondent for such relief. By not making such an order, I am not
closing the door on the said Respondents. I do not propose making an order for the
remittal of this matter to the 1 st Respondent.
21. In the circumstances I make the following orders :
(a) It is hereby declared that the 1 st Respondent does not have the jurisdiction to conciliate
the dispute involving the 4 th and 5 th Respondents and, therefore, lacks jurisdiction to
consider and condone their applications for the late referral of their dismissal dispute to
the 1 st Respondent.
(b) The ruling made by the 2 nd Respondent dated 28 April 2000 to consider and grant the
application by the 4 th and 5 th Respondents for the condonation of the late referral of their
dismissal dispute to the 1 st Respondent for conciliation is hereby reviewed and set aside.
(c) The ruling made by the 2 nd Respondent dated 28 April 2000 to grant the application by
the 3 rd and 6 th Respondents for the condonation of the late referral of their dismissal
dispute to the 1 st Respondent for conciliation is hereby reviewed and set aside.
(d) Each party shall pay her, his or its own costs.
______________________________________
MOERANE AJ.
ACTING JUDGE OF THE LABOUR COURT
31 JANUARY 2003.
FOR THE APPLICANT MASERUMULE INCORPORATED
FOR THE 1 ST AND 2 ND RESPONDENTS CCMA
FOR THE 3 RD – 6 TH RESPONDENTS SOVITI ATTORNEYS
DATE OF COMPLETION OF JUDGMENT 31 JANUARY 2003
DATE OF HANDING DOWN OF JUDGMENT FEBRUARY 2003.