IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JR603/03
In the matter between:
KUNGWINI RESIDENTIAL ESTATE AND
ADVENTURE SPORT CENTRE LIMITED Applica nt
and
MR LUCKY MHLONGO N.O. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
CAROL DUTTON Third Respondent
JUDGMENT
FRANCIS J
Introduction
1. This is an application in terms of section 158(1 )(g) of the Labour Relations Act 66 of
1995 (“the Act”), to review and set aside a resciss ion ruling made on 3 March 2003
under case number GA39954-02 by the first respondent (“the commissioner”).
2. The application was opposed by the third respond ent.
The background facts
3. The third respondent was employed by the applica nt. She resigned on 10 March 2002
and contended that she was constructively dismissed . On 27 November 2002 she
referred a dispute of constructive dismissal to the second respondent (“the CCMA”).
On 3 December 2002 the third respondent served an a pplication for condonation for
the late referral of her dispute.
4. The applicant handed the third respondent’s appl ication for condonation to its
attorneys of record who on 4 December addressed a l etter to the third respondent’s
representative stating that the application for con donation did not comply with Rule
31(3) and 31(3)(e) of the CCMA Rules. It stated th at the non compliance with the
said rule prevented the applicant from opposing the application for condonation. The
complaint were that since the CCMA has assigned no case number, the applicant was
prevented from opposing the condonation application . A copy of the letter was also
faxed to the CCMA.
5. Unbeknown to the parties, on 10 January 2003 com missioner S Alli Dadabhai issued
a condonation ruling in terms of which the third re spondent’s late referral was
condoned.
6. On 16 January 2003 the third respondent’s repres entatives advised the applicant’s
attorneys in a letter that the case number had been allocated. It advised further that
the applicant had fourteen (14) calendar days to lo dge a notice of opposition and
supporting affidavit.
7. On 22 January 2003 the applicant received per re gistered post the condonation ruling
referred to in paragraph 5 above.
8. On 24 January 2003 the applicant delivered its i ntention to oppose the third
respondent’s application for condonation and an app lication to have the condonation
ruling rescinded.
9. On 30 January 2003 the applicant received a noti fication letter from the CCMA that
the matter had been set down for conciliation on 24 February 2003.
10. On 24 February 2003 the applicant attended the conciliation meeting at the CCMA.
The commissioner presided. The applicant raised th e following issues with the
commissioner:
10.1 The CCMA did not have jurisdiction to concilia te, since the application to
rescind the condonation ruling had not been set down for hearing;
10.2 The commissioner is not permitted to address t he rescission application since
the application was not before him.
11. The commissioner after being provided with all the relevant documents pertaining to
the rescission application, requested the parties t o address him on the rescission
application.
12. On 25 March 2003, the commissioner issued the r uling that the applicant is seeking to
review.
The rescission ruling
13. The commissioner found in his ruling that:
13.1 That the third respondent has complied with th e provisions of CCMA rules
10(1)(2) and (3). Rule 10 might be in conflict wit h Rule 31(3)(b) since it is
impractical to have a case number assigned without having served the other
party to the dispute as specifically required by Ru le 10(2)(b) to have written
prove that the other parties to the dispute were served.
13.2 If the applicant’s representative was aware of Rule 10, placing an obligation
on the third respondent to get the case number assi gned is unfair instead of
requiring same from the Commission as stated in Rul e 31(3)(b). At this stage
having in mind Rule 10, the applicant’s representative should have known that
it was impossible that the case number was already assigned but decided to use
this as an excuse not to oppose the application to go on holiday which was
done the day after receipt of the application. The commissioner found that in
the light of Rule 10, the applicant had no bona fide defence not to oppose the
application for condonation.
13.3 The commissioner found that it was inappropria te for the applicant to simply
have concluded that the application was defective a nd therefore decided not to
oppose the matter. The applicant’s contention that the third respondent’s
application for condonation was defective raised a question about who is
empowered to decide defective referrals. The applicant was not empowered to
decide whether the third respondent’s application w as defective. The
applicant should have in terms of rule 31(5)(a) req uested that the third
respondent’s referral be dismissed on a technical b asis. The reason for not
opposing the third respondent’s application for con donation was because the
applicant’s representative’s office was closed. Th e failure to file a notice of
opposition and answering affidavits constituted a w aiver of the applicant’s
rights and could therefore not be entertained.
The grounds of review
14. The applicant relies on the following grounds o f review:
14.1 The commissioner did not consider the relevant facts of law, misunderstood
his powers and consequently arrived at a ruling tha t is not in accordance with
the law of natural justice.
14.2 The first and second respondents’ failure to t ake cognizance of the relevant
Act and Rules for the Conduct of Proceedings before the CCMA, constitutes
an abuse of their powers. The commissioner determi ned a dispute where the
dispute had not been the subject of conciliation.
14.3 The commissioner conducted him in a manner tha t was partial and biased and
gave a ruling that was inconsistent with the right to fair labour practices.
14.4 The commissioner acted outside the limits of t he Rules of the CCMA by
which he is bound to.
14.5 The commissioner failed to make a ruling in te rms of the material properly
available to him and the conclusion he eventually arrived at.
14.6 The condonation ruling and the rescission ruli ng are found to be fatally
defective and be reviewed and set aside.
Analysis of the facts and arguments raised
15. There is no substance in the grounds raised by the applicant in his application. It is
clear from the ruling that the commissioner conside red the relevant facts of law,
understood the powers and arrived at a decision tha t was in accordance with the law
of natural justice. The matter had been initially enrolled for conciliation. At the
conciliation hearing the applicant raised a point in limine to the effect that the CCMA
did not have jurisdiction to conciliate the dispute pending the rescission application.
The point in limine was upheld and the commissioner permitted the parties to address
him on the application for rescission. The applicant did not object to the route that the
commissioner had followed. The commissioner did no t abuse his powers and did not
determine a dispute which was not the subject of co nciliation. The commissioner did
not go to conciliate the dispute and it is clear fr om the ruling that he went on to hear
the rescission application. It is also clear from the ruling that conciliation is still
pending.
21. There is no evidence that shows that the commis sioner conducted himself in a manner
that was partial and biased and that he gave a ruli ng that was inconsistent with the
right to fair labour practices. The commissioner had considered all the material
placed before him and arrived at a conclusion that was based on the material that was
before him.
22. It is clear from the facts that the third respo ndent’s referral was made in terms of Rule
10(1) and (2) and that in terms of Rule 10(3) the C CMA accepted the referral. The
said Rule reads as follows:
“(1) A party must refer a dispute to the commission for conciliation by delivering a
completed Labour Relations Act form 7.11 (“the referral form”).
(2) The referring party must:-
(a) sign a referral document in accordance with Rul e 4;
(b) atttach to the referral document written proof, in accordance with Rule
6 that the referral document was served on the othe r parties to the
dispute;
(c) if the referral document is filed out of time, attached on application for
condonation in accordance withRule 9.
(3) The Commission must refuse to accept a referral document until sub rule (2)
has been complied with.”
23. The applicant on its own version received the t hird respondent’s referral on 3
December 2001. The referral did not contain a case number. The referral was
referred to the applicant’s attorney’s on 4 Decembe r 2001 whose firm was closing for
the December holidays. Instead of filing the neces sary notice to oppose or answering
affidavits, the applicant requested the third respo ndent to file a case number. Nothing
as pointed out by the commissioner prevented the ap plicant from opposing the late
referral. Except the letter that the applicant wrote it did nothing. The third respondent
could not condone the applicant’s non compliance. The applicant could not on its
own decide that there was non compliance with rule 31 and decide not to oppose the
application. It was the author of its own misfortune.
24. The commissioner has dealt with the submissions made by the applicant about the
provisions of rule 31. It cannot be said that the commissioner either committed an
irregularity or did not apply his mind to the facts or submissions made. The award is
well reasoned and no irregularity was committed by the commissioner.
25. The applicant has in its written heads of argum ents raised new grounds of review that
was not raised in the review application. I do not deem it necessary to deal with those
new grounds of review.
26. The applicant’s application to review the condo nation ruling of 10 January 2001
should fail on the basis that the ruling was receiv ed by the applicant on 22 January
2003 and the review application was only filed wit h this Court on 15 April 2003.
This was well after the six-week period. There is no application for condonation. The
commissioner who made the ruling was also not cited at a party to the proceedings.
27. The review application stands to be dismissed.
28. There is no reason why costs should not follow the result.
29. In the circumstances the following order is mad e:
29.1 The review application is dismissed with costs .
29.2 The CCMA is to enrol the dispute for conciliat ion under case number
GA39954-02 on notice to both parties.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANT : ATTORNEY G J DE VILLIERS - MOH R
FOR THIRD RESPONDENT : M A HAWYER INSTRUCTED BY BAR RY KOTZE
INCORPORATED ATTORNEYS
DATE OF JUDGMENT : 2 DECEMBER 2003