IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH REPORTABLE
CASE NO: P502/02
Date Heard:13/02/03
Date Delivered:24/02/03
In the matter between:
SAPPI TIMBER INDUSTRIES (PTY) LTD
T/A BOSKOR SAWMILL APPLICANT
and
Commission for Conciliation,
Mediation and Arbitration FIRST RESPONDENT
COMMISSIONER A LEVENDAL SECOND RESPONDENT
CEPPWAWU obo NJIKWA & MOEKETSI THIRD RESPONDENT
J U D G M E N T
PILLAY, J
THE FACTS:
1. The third respondent referred a dismissal dispute to the first respondent,
the Commission for Conciliation, Mediation and Arbitration (“CCMA”). It
was conciliated on 2 November 2001. The Commissioner undertook to
issue the certificate by 5 November 2001. The certificate was issued on
19 April 2002, served on the third respondent but not on the applicant,
who became aware of it on 22 May 2002 when was delivered with the
referral to arbitration.
2. Neither the CCMA, nor the Commissioner, the second respondent, has
tendered any explanation for the delay in issuing the certificate. The
circumstances clearly call for an explanation, which even though is no
longer relevant to this application, may be important for the efficiency of
the CCMA. I intend to give some directives in this regard in due course.
FOR THE APPLICANT:
3. Mr Bleazard for the applicant submitted that the certificate should be set
aside because of the failure on the part of the CCMA and the
Commissioner to serve it and the extraordinary delay that preceded its
issue. The certificate should, in terms of section 135(5)(a) of the Labour
Relations Act 66 of 1995 (the “LRA”), have been issued immediately or
soon after conciliation. The delay was prejudicial to the applicant who was
entitled to assume that the third respondent had abandoned its claim. The
third respondent’s remedy lies against the CCMA or the Commissioner, if
the certificate is set aside. So it was submitted for the applicant.
FOR THE RESPONDENT:
4. Mr Wade for the third respondent, relying on the approach of the Labour
Courts to the requirement that awards must be issued within 14 days
submitted that the word “must” in section 135(5)(a) should be interpreted
as a guideline. ( Free State Buying Association Ltd t/a Alpha Pharm v
SACCAWU and Another (1999) 3 BLLR 223 (LC); A A Ball (Pty) Ltd v
Kolisi and Another (1998) 6 BLLR 560 (LC); Standard Bank of SA Limited
v Fobb and Others [2002] 9 BLLR 900 (LC)) Therefore the issue and
service of the certificate were mere formalities. As noncompliance
therewith was not a jurisdictional prerequisite, the validity of the certificate
was immaterial and did not fall to be set aside. It was not required for the
purposes of arbitration as it was common cause that conciliation had
already taken place.
5. He conceded that the commissioner did not issue the certificate within a
reasonable time. But, as the certificate was not a prerequisite in terms of
section 191(5) for arbitration, it was irrelevant whether and when it had
been issued.
6. It serves an administrative purpose of recording the fact that the dispute
was conciliated and resolved or unresolved.
7. The facts in this case were distinguishable from a situation where the
CCMA refused to issue a certificate e.g. because it lacked jurisdiction.
8. Finally, the nonservice and delay in the issue of the certificate were not
per se prejudicial. The applicant failed to establish what prejudice it
suffers as a result of the delay. ( County Fair v CCMA and Others [1998] 6
BLLR 577 (LC); PPWAWU & Another v Commissioner: CCMA (Port
Elizabeth) & Another [1998] 5 BLLR 499 (LC); Mshibe v Rama’s
Transport/Belmont Transport [1998] 12 BLLR 1314 (LC); Afrox Limited v
Laka and Others [1999] 5 BLLR 467 (LC)). Evidence of such prejudice as
the applicant might suffer should be led at the arbitration where it could
raise pleas of waiver, estoppel or failure to act vigilantly against the claim
of the third respondent.
9. The suggestion that the third respondent should sue the Commissioner
and the CCMA was without merit or judicial precedent and an abuse of the
process. So it was submitted for the third respondent.
ANALYSIS:
10. I consider firstly the requirements for arbitration and the relevance of the
certificate therefor. If the certificate is necessary to trigger arbitration in
this case, then I must consider whether it was validly issued. If it is not
required then its validity or otherwise would be of academic interest and
this application should be dismissed.
11. Section 191(5) of the LRA provides:
“If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days have expired since the council or the
Commission received the referral and the dispute remains unresolved
a. the council or the Commission must arbitrate the dispute at the
request of the employee if….”
12. Arbitration can be triggered therefore either upon the issue of a certificate
or upon the expiry of 30 days after the referral for conciliation and the
dispute remaining unresolved. Thus an applicant is not without a remedy
to invoke the next procedural step if there is a delay in the issuing of the
certificate or if it is not issued at all ( De Vries v Lionel Murray
Schwormstedt & Louw (2001) 22 ILJ 1150 (LC); Louw v Micor Shipping
(1999) 12 BLLR 1308 LC at para 9).
13. Prior to its amendment, section 136(1) did not prescribe any time limit for
the referral to arbitration. The approach of the Labour Court then was to
require that it be made within a reasonable time ( Chemical Workers’
Industrial Union v Darmag Industries (Pty) Ltd (1999) 20 ILJ 2037 (LC) at
para28).
14. After its amendment by section 9(a) of Act 127 of 1998, section 136(1)
reads:
“Appointment of commissioner to resolve dispute through
arbitration
If this Act requires a dispute to be resolved through arbitration, the
Commission must appoint a commissioner to arbitrate that
dispute, if
a. commissioner has issued a certificate stating that the dispute
remains unresolved; and
b. within 90 days after the date on which that certificate was
issued, any party to the dispute has requested that the dispute
be resolved through arbitration. However, the Commission, on
good cause shown, may condone a party's nonobservance of
that timeframe and allow a request for arbitration filed by the
party after the expiry of the 90day period.”
15. Whereas a time limit is now set in section 136(1) for the referral to take
place within 90 days when a certificate is issued, no time limit is
prescribed for the referral to arbitration upon the expiry of 30 days after
the referral to conciliation, that is when the referral to arbitration takes
place without a certificate.
16. This discussion about referrals to arbitration applies equally to referrals to
the Labour Court. Section 191(11), which corresponds with section
136(1), also prescribes a 90day time limit for referral to the Labour Court
only if a certificate is issued.
17. In the absence of statutorily prescribed time limits the approach of the
Court has been to require that steps in litigation be undertaken within a
reasonable time ( JDG Trading (Pty) Ltd t/a Bradlows Furnishers v Laka
NO & Others (2001) ILJ 641 (LAC); Wanenburg v Motor Industry
Bargaining Council & Others (2001) 22 ILJ 242 (LC); Els Transport v Du
Plessis & Others (2001) 22 ILJ 1390 (LC); Liberty Life Association of
Africa v Kachelhoffer NO & Others (2001) 22 ILJ 2243 (C); Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at
39AB; Softex Mattress (Pty) Ltd v Paper Printing Wood & Allied Workers
Union & Others (2000) 21 ILJ 2390 (LAC); Queenstown Fuel Distributors
CC v Labuschagne NO & Others (1999) 20 ILJ 928 (LC); Librapac CC v
Fedcraw & others (1999) 20 ILJ 1510 (LAC); Chemical Workers Industrial
Union V Darmag Industries (Pty) Ltd (1999) 20 ILJ 2037 (LC); Kruger &
Another v Macgregor NO & Another (1999) 20 ILJ 2065 (LC); De Vries,
supra).
18. In this case, as it is common cause that the dispute was conciliated and
remained unresolved, I find that these jurisdictional facts to trigger
arbitration were established, irrespective of whether the certificate was
issued. If the third respondent relied on compliance with the facts per se
to proceed to arbitration, then it would have had to refer the dispute after
30 days expired since the CCMA received the referral for conciliation and
within reasonable time (section 191(5)).
19. However, the third respondent relies not on the facts per se to found
jurisdiction for arbitration but on the certificate. The certificate is therefore
the sine qua non for arbitration. Contrary to Mr Wade’s submission, its
validity is therefore material.
20. On the plain and literal interpretation of section 136(1), the referral to
arbitration had to be made within 90 days of the certificate being issued.
That was done in this case. Provided that the certificate is valid, the
CCMA would have jurisdiction to arbitrate. There would also be no need
for condonation of the referral to arbitration as it is timeous.
21. In De Vries , the facts were similar to this case. In that case, the certificate
was issued more than a year after the referral for conciliation and about 10
months after conciliation failed. The referral to arbitration was made within
14 days after the certificate was issued. Applying a literal interpretation to
section 191(11) the learned Judge Waglay accepted that the referral to the
Labour Court was timeous. However, by reasoning that the purpose of
section 191(11) was to set time limits to institute proceedings in the
Labour Court, the referral was out of time and called for an application for
condonation, which he granted.
22. I am in respectful disagreement with my learned brother. As discussed
above, if the certificate is relied upon to found jurisdiction, then the referral
must be made within 90 days of the issue of the certificate. If the facts
relied upon to found jurisdiction are that 30 days expired after the referral
for conciliation and the dispute remains unresolved, the referral must be
made within a reasonable time. If it is not made within a reasonable time,
an application for condonation must be made.
23. A reasonable time for referring a dispute if a certificate is not issued is, in
my view, 90 days. There is no logical basis to set a standard different
from that which applies when a certificate is issued. The omission to
legislate a time limit seems to be an inadvertent omission by the drafters
rather than a deliberate attempt to prescribe a different standard.
24. The crux of this case is whether the certificate relied upon for the referral
to arbitration is valid. A valid certificate obliges a commissioner to
arbitrate the dispute, if all other requirements are met ( Fidelity Guards
Holdings (Pty) Ltd v Epstein & Others (2000) 3 BCLR 271 LC at para 9;
Fidelity Guards Holdings (Pty) Ltd v Epstein N.O. and Others [2000] 12
BLLR 1389 (LAC); section 191(5)(i)).
25. Section 135(5)(a) provides:
“When conciliation has failed, or at the end of the 30day period or any further
period agreed between the parties, the commissioner must issue a certificate
stating whether or not the dispute has been resolved;”
26. In my view, the word “must” in section 135(5)(a) is peremptory ( National
Union of Metalworkers of SA & Others v Driveline Technologies (Pty) Ltd
& Another (2000) 21 ILJ 142 (LAC); De Vries, supra; Louw, supra;
Ndokweni v Game Stores and Others [2001] 6 BLLR 643 (LAC)). That is
also the view I held in relation to section 138(7) in Standard Bank v Fobb
(supra) at para 6. No time limits are prescribed as to when the certificate
should be issued. What I found to be a guideline in section 135(7) was
the time limit of 14 days to issue an award. Mr Wade’s interpretation of
my decision in the Standard Bank case ( supra) is therefore misconceived.
27. Section 135(5) prescribes no time limit for the issuing of the certificate.
(Louw, supra) Mr Bleazard concedes, correctly in my view, that the third
respondent’s failure to refer the dispute within 30 days after conciliation
has no effect on the validity of the certificate. In his view, it is the non
service and delay in issuing the certificate that result in a nullity.
28. In itself, the CCMA’s omission to serve the certificate on the applicant is a
formal and not a material noncompliance in the circumstances of this
case. If the nonservice of the certificate was prejudicial to the applicant, it
could have prevented or limited the prejudice by requesting the certificate
from the CCMA. There is no evidence that it did so. Nor is there evidence
as to what it might have done or not done if it had been served with the
certificate.
29. The certificate became relevant only when the third respondent launched
the arbitration. Even though the CCMA did not serve it, the applicant
nevertheless received it from the third respondent together with the
arbitration referral. As the applicant was notified at the time that he
needed to know of the certificate, the nonservice of the certificate by the
CCMA is not a material irregularity. The delay in the issue of the
certificate is a separate question.
30. On the basis that litigation should be processed within a reasonable time,
the certificate should be issued within a reasonable time. Justice delayed
is justice denied. In Louw, supra Mlambo J was required to decide on the
validity of a certificate that was issued after conciliation took place six
months since the referral. The Court found that the conciliation was a
nullity but the certificate, which was issued on the day of the conciliation
was valid because it was issued after 30 days of the referral. (at para 8)
31. I agree with Mr Bleazard, that a reasonable time for the issue of the
certificate is immediately after or as soon as possible after conciliation or,
if there is no conciliation, as soon as possible after the expiry of 30 days
from the date of the referral. I say so because disputes must be resolved
expeditiously in accordance with the objects of the LRA. As an instrument
that is necessary to advance the dispute resolution process the certificate
should be issued without delay. It serves a twofold purpose:
32. The purpose of the certificate is firstly evidentiary. It serves as prima facie
proof of the facts certified therein, i.e. the identities of the parties; the
referral to conciliation; the date thereof and the date on which the dispute
was resolved or remained unresolved. (also section 157(4)(b))
33. The second purpose of the certificate is to invoke the jurisdiction of the
CCMA in terms of section 136(1) and the Labour Court in terms of section
191(11) read with section 191(5) respectively, to adjudicate the dispute.
Section 136(1) read with section 191(5) is peremptory as regards the
jurisdiction of the CCMA. I accordingly align myself with the views of
Pillemer AJ in the Labour Court in Fidelity Guards (supra).
34. However, a certificate could be a nullity if it is vitiated by an irregularity that
goes to the root of the facts that it seeks to confirm. If a certificate is
fraudulently issued or obtained or which contains incorrect or false
information, it would not amount to proof of the facts contained therein and
would therefore be a nullity. That would be so for instance, if the
certificate states that the dispute is not resolved at conciliation and it is
proven that it was settled there.
35. Having regard to the evidential and jurisdictional effects of the certificate,
the question is: Does the delay in issuing the certificate negate its legal
effect? Any delay in the issuing of the certificate cannot result in its nullity
for the reasons discussed hereunder.
36. Firstly, the certificate cannot be set aside in so far as it serves a legal
purpose. In this case, the certificate is factually correct in all respects. It
records that the dispute remained unresolved as at 2 November 2001 and
that the certificate was issued on 19 April 2002. It therefore has evidential
value. As I have found that it is an instrument that triggers arbitration, it
fulfils its second purpose.
37. Secondly, the effect of Mr Bleazard’s argument, if it were accepted, would
be that a party who, relying on a literal interpretation of section 136(1) and
191(11), and who depends for jurisdiction on the certificate, might find
itself automatically unsuited by the inaction of the CCMA and the effluxion
of time. Members of the public are entitled to expect the CCMA to perform
its functions lawfully and timeously. To hold that a party can lose its right
to arbitration or to access to the Labour Court as a result of the delayed
action by the CCMA, a third party and a public facility, would be inherently
unjust.
38. Thirdly, the constitutionality of the acts or omissions of a public body or a
third party which results in denying a person access to a tribunal or forum
in section 34 of the Constitution Act 108 of 1996 (“the Constitution”), is in
issue. However, it was not raised by either party in this case.
39. In Driveline Technologies , supra Conradie J pointed out that a party who
fails to comply with its obligations may very well deprive itself of a hearing.
But, that does not deprive the court of jurisdiction. Obligations imposed on
parties are not usually intended to be jurisdictional preconditions, the
Court observed. I doubt that this generalisation can apply without
qualification when a public entity such as the CCMA fails to comply with its
statutory mandate. A party who is not issued with a certificate will have
not two but only one route to arbitration, that is, to refer the dispute within
a reasonable time after 30 days expire since the referral to conciliation.
40. My prima facie view is that if the legislature intended the effect of such
acts or omissions of the CCMA to be a limitation or restriction of the
exercise of a fundamental right, it would have expressly authorised it.
41. The Constitutional Court has applied a strict interpretation of the limitation
clause, section 36 of the Constitution, to ensure that only limitations that
are reasonable and justifiable in an open and democratic society are
permitted. ( Islamic Unity Convention v Independent Broadcasting
Authority and Others 2002 (4) SA 294 (CC) at para 38; Ex Parte Minister
of Safety and Security and Others: In Re S v Walters and Another 2002
(4) SA 613 (CC) at para 27)
42. Nothing in the LRA lends itself to a construction which deprives the third
respondent of its rights in terms of section 34 of the Constitution. On the
contrary, the literal interpretation of sections 136(1) and 191(11) read with
section 191(5) discussed above, facilitate access to the CCMA and the
Labour Court. Like section 135(5), they too place no limits on the timing of
the issue of the certificate. Section 191(5) is not even qualified by words
such as “whichever occurs first” after the word “referral.” Read together,
sections 135(5), 136(1) and 191(5) dispel any suggestion that the failure
to issue a certificate would result in a nullity that would have the effect of
barring a party from access to a tribunal or forum. This construction
promotes compliance with the LRA in a manner that is also consistent with
the Constitution.
43. Section 34 underpins a “deeper principle” that underlies the right of access
to a tribunal or forum. That right in this case is the right to fair labour
practices ( per Mokgoro J in Chief Lesapo v North West Agricultural Bank
and Another 2000 (1) SA 409 (CC) at para 16, also paras 5, 13.)
44. The situation would be different if the CCMA refused to issue the
certificate. A party who waits for the issue of a certificate in those
circumstances runs the risk of being unsuited altogether if no certificate is
issued and an unreasonable period lapses after the expiry of 30 days from
the referral to conciliation ( De Vries , supra, at para 25).
45. An application to the Labour Court to compel the issue of a certificate
would be an unnecessary exercise if the applicant is able to refer the
dispute within a reasonable time after the 30 days expired after the referral
to conciliation. If an applicant is not able to do so, but is able to show
good cause why the CCMA should issue the certificate, such an
application to this Court may be warranted.
46. The Labour Court is also the forum to which applications for the review
and setting aside of a certificate should be made. In this case, the CCMA
correctly refused to withdraw the certificate. This situation seems
distinguishable from a case where, for instance, the certificate contains
typographical errors, or errors common to the parties or where the parties
consent to the certificate being varied or rescinded. It is arguable that the
power to do so stems from section 144. That section deals with the
variation and rescission of arbitration awards and rulings, and the word
“ruling” could mean “an authoritative pronouncement” which is what a
certificate is. ( The New Shorter Oxford English Dictionary )
47. In Fidelity Guards ( supra), Pillemer AJ said that a certificate issued “out of
time” may be set aside on review (para15 G – H). The relief sought in that
case was not to review and set aside the certificate. In the context, the
learned Judge appears to have made the statement in passing. It is not
an issue that was canvassed in the judgment of the Labour Appeal Court
in that case. In the context of the discussion of the relevant sections in
this case, and the evidentiary and judicial purposes of a certificate, in my
respectful view a certificate cannot be set aside because it is out of time.
48. The consequence of holding as I do that a certificate must be issued
within a reasonable time is not that it is a nullity if it is not issued within a
within a reasonable time is not that it is a nullity if it is not issued within a
reasonable time. However, a party who relies for jurisdiction to proceed to
arbitration on a certificate that is issued after much delay, may be required
to explain at the arbitration why the dispute was not referred within 90
days after the 30 days expired since the CCMA received the referral for
conciliation. Such an explanation may go to determining whether an
applicant should be penalised for delaying the arbitration.
49. An applicant could be penalised if it could have, but fails, to refer the
dispute as soon as possible after the 30 days expire from the referral to
conciliation. The penalty, however, is not to deprive the applicant of its
right of access to a forum but to make an appropriate award. (See e.g.
section 194 which, prior to its amendment in 2002, deprived an employee
of compensation for any unreasonable period of delay and which now
requires that compensation be just and equitable).
50. This requirement serves as an incentive to expedite the resolution of the
dispute. Relative to an absolute bar to access to a tribunal or forum, it is a
less restrictive means of promoting the object of the LRA, namely, the
expeditious resolution of disputes (section 36 of the Constitution; Islamic
Unity Convention v Independent Broadcasting Authority and Others 2002
(4) SA 294 (CC) at para 38; S v Mamabolo (eTv and Others Intervening)
2001 (3) SA 409 (CC) at para 49.)
51. The approach to section 135(5); 136(1) and 191(5) on the facts of this
case is to balance the right of access to a tribunal or forum with the
obligation to do so expeditiously.
52. This approach should not be construed as a licence by the CCMA to delay
the issue of certificates. A Commissioner who delays the issue of a
certificate can be held to account administratively to the Director of the
CCMA.
53. Finally, Mr Bleazard’s submission that the third respondent should pursue
a claim against the CCMA and the Commissioner is rejected. Such a
claim cannot be for unfair dismissal. Furthermore, in terms of section
126(2) the CCMA is not liable for any loss suffered by any person as a
result of any act performed or omitted in good faith in the course of
exercising the functions of the Commission. There is no evidence in this
case of bad faith on the part of the Commissioner.
54. ORDER:
1. The application is dismissed with costs.
2. The registrar is directed to bring this judgment to the attention of the
Director of the CCMA, with the request that he investigate the reasons
for the failure by the Commissioner to firstly issue the certificate
timeously, and secondly, to provide an explanation therefor to this
Court.
_______________
JUDGE D PILLAY
APPEARANCES:
FOR THE APPLICANT : MR BRIAN BLEAZARD
BRIAN BLEAZARD ATTORNEYS
FOR THE RESPONDENT : ADVOCATE WADE
INSTRUCTED BY : ATTORNEY GRAY MOODLIAR