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Sneller Verbatim/lks
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO : JR371/02
2004-06-04
Reportable
In the matter between
QUINTON ROBINSON Applicant
and
ESKOM HOLDINGS Respondents
_________________________________________________________
J U D G M E N T
_________________________________________________________
PILLAY, J : This is an application to review and set aside the ruling of the first
respondent commissioner. The facts were that the applicant referred a dispute
late for conciliation to the third respondent, the Commission for Conciliation,
Mediation and Arbitration ("the CCMA"). He applied for condonation. A
conciliation was held on 21 August 2001. The dispute was unresolved and a
certificate was issued to that effect. The condonation application was not
adjudicated.
When the matter was referred for arbitration, the second respondent employer,
ESKOM, raised in limine that the commissioner had no jurisdiction to arbitrate as the
condonation application had not been adjudicated. The commissioner decided as
follows:
"In limine point re condonation not having been considered in this matter upheld.
Condonation not granted, 8 months late. Reason bad service from consultant
unacceptable."
This is a review of that ruling.
It was submitted for the applicant on the issue of jurisdiction, that the
commissioner did not apply his mind to the facts and the law and that he erred in
upholding the point in limine. On the condonation application itself he failed to
apply his mind in that the outcome was unsustainable on the facts and the law.
Ms Kathree, for the applicant, relied on Fidelity Guards Holdings (Pty) Ltd v
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Epstein N.O. and Others 2000 21 ILJ 2382 LAC.
For the respondent it was submitted that it validly raised the point in limine
which obliged the commissioner to consider jurisdiction and the condonation of
the late referral. In addition to Fidelity Guards, Mr Mokoena for Eskom relied on
Etschmaier v CCMA and Others 1998 12 BLLR 12 77 (LC); NOSA and Another v
Voltex (Pty) Ltd t/a Electronic Centre and Others 2000 5 BLLR 619 (LC) and Van
Rooy v Nedcor Bank Ltd 1998 5 BLLR 540 (LC).
In my view a certificate of outcome is "sufficient proof” that an attempt has
been made to resolve that dispute. It says as much at section 157(4)(b) of the
Labour Relations Act No. 66 of 1995. That is the jurisdiction conferring instrument
that triggers arbitration. It was not open to the commissioner to look beyond the
certificate. (Fidelity Guards at paras 12 and 14). The issuing of a certificate by a
commissioner on behalf of the CCMA is an administrative act. It is a formal
decision. To consider its validity is to review that decision. Commissioners may
not review each other's decisions. Quite simply, the CCMA may not be a judge in
its own cause.
In this regard I am in respectful disagreement with Oosthuizen AJ in
Etschmaier at para 47 where he takes the view that the commissioner was not
performing a review function in such circumstances but enquiring about his
jurisdiction. In so far as Van der Riet AJ takes a similar view in Voltex above at
page 625E-F, I am also in respectful disagreement. However, it seems to me that
the focus of the learned judge in this instance was to suggest a pragmatic way to
overcome a jurisdictional obstacle at the lowest tier of dispute resolution. One
way of overcoming such a difficulty is for the parties to agree that the certificate is
invalid. This would be possible where the facts are common cause and the parties
wish to avoid the delay, cost and inconvenience of the review by the Labour Court
wish to avoid the delay, cost and inconvenience of the review by the Labour Court
of an administrative act by the Commission, the outcome of which is certain
predictable, and the process a mere formality.
Another pragmatic option is for a party who challenges the validity of a
certificate to reserve its rights to do so after arbitration when the certificate and, if
necessary, the arbitration may be reviewed by the Labour Court unless some
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arrangements are made about the timing of such a review, it may have to be
accompanied by an application for condonation. The timing of a review
application was discussed but not decided by the LAC in Fidelity Guards.
However, if the validity of the certificate is challenged because it was
fraudulently obtained, the commissioner may consider its validity. In that case
there is no decision of the CCMA. There is no administrative act to review. In that
instance the commissioner conducts an investigation into a potentially illegal
document.
I accordingly find that the commissioner in this case acted ultra vires by
reviewing the validity of the certificate when he had no jurisdiction to do so.
Furthermore, the commissioner failed to apply his mind to the law and facts
pertaining to the evidentiary status of the certificate.
In view of this conclusion, it is not necessary for me to consider any of the
other submissions by the parties. However, I record that the parties were urged to
seriously consider whether the applicant has the capacity to continue his
employment with Eskom and to engage each other in a concerted effort at
resolving the entire dispute substantively without subjecting it to further formal
processes.
The order I therefore grant is in terms of paragraphs 1, 2, 3 and 4 of the
Notice of Motion.
JUDGE PILLAY D, J
Edited : 15 June 2004
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