IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN REPORTABLE
CASE NO : C68/2005
DATE HEARD : 21062005
DATE DELIVERED : 22062005
In the matter between:
WELTEVREDE KWEKERY (PTY) LTD APPLICANT
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 1ST RESPONDENT
PIETER BREUGEM 2ND RESPONDENT
PIET VAN STADEN N.O. 3RD RESPONDENT
JUDGMENT
PILLAY D, J
1. Many technical issues arise in this review brought in terms of section
158(1)(g) of the Labour Relations Act No. 66 of 1995 ("the LRA"). It is
also prefaced by an objection that it was launched out of time and not
accompanied by an application for condonation.
2. The second respondent (employee) was dismissed on 29 March 2004. He
posted a referral for conciliation to the Commission for Conciliation,
Mediation and Arbitration ("the CCMA") the first respondent, on 23 April
2004. On 28 and 29 April 2004 the second respondent telephoned the
CCMA to check that it received the referral. It had not as the post had not
been collected yet. On 30 April he was told that the referral had been
received. On enquiring about progress on 7 May 2004, the employee
learnt that the referral had been registered. Thereupon he served the
referral on the applicant by telefax on 10 May 2005. He also faxed the
referral form to the CCMA together with proof of transmission to the
CCMA. He was mistaken about when service had to be effected and had
assumed that it should be effected after the referral had been registered
by the CCMA. The CCMA informed him on 28 June 2004 that he needed
to apply for condonation. He signed the application for condonation on 30
June 2004 and transmitted it the next day to the CCMA.
3. The applicant opposed the condonation on 6 July 2004. On 17 August
2004 it received the ruling granting condonation. It filed this review
application on 10 February 2005 and served it on 14 February 2005.
Point in limine : Condonation
4. The applicant submits that no application for condonation is required and
the review was launched within a reasonable time. It was pointed out to
Mr Kantor for the applicant that prior to the 2002 amendment of the LRA,
the case law had equated the standard of a reasonable period for
delivering an application for review in terms of section 158(1)(g) to the
same standard as set for the review of arbitration awards in terms of
section 145 of the LRA, i.e. six weeks ( Rustenberg Platinum Mines Ltd v
Monnapula & Others [2003] 9 B LLR 909 LC at paragraph 34 page 914;
Ruijgrok v Foschini (Pty) Ltd & Another [1999] 20 ILJ 1284 LC at 1287
para 161288 para 22).
5. The 2002 amendment to section 158(1)(g) gave effect to the practice that
had been established through the case law. Mr Kantor persisted that the
reference to "subject to section 145" in section 158(1)(g) was to the
reference to "subject to section 145" in section 158(1)(g) was to the
grounds of review and not the time limit. I disagree. There is nothing in
the wording of section 158(1)(g) that lends itself to such a qualification.
6. The review should have been launched within six weeks from 17
August 2004. It was launched more than five months later. That is not
within a reasonable time, even on the applicant's version. The applicant
was aware of and could have acquainted itself of all the information
relevant for this application when it received the condonation ruling. There
is, therefore, no reasonable explanation that can be distilled from the
pleadings for such a long period of delay.
7. The first prayer sought is in the following terms:
"No valid referral of a dispute in terms of the rules for the
conduct of proceedings before the CCMA was made to the first
respondent in case reference WE509/04."
8. Insofar as the first order prayed is framed as a declarator, it will
emerge from the facts discussed below that it is really a review of an act
by the CCMA. Consequently, the six week time limit for claiming such
relief applies to that prayer as much as to the rest of the relief sought.
9. The application for review is brought out of time. It falls to be dismissed on
this ground alone. I nevertheless proceed to deal with the merits of the
application.
10. The applicant submits that the referral was invalid, firstly because it was
not accompanied by an application for condonation and secondly, there
was no proof of service submitted to the CCMA. In support of these
grounds of invalidity Mr Kantor submitted that Rules 9 and 10 of the Rules
of the CCMA relating to the procedure for seeking condonation and
referring a dispute to the CCMA respectively are peremptory. They must
be enforced strictly otherwise it would impair the administration of disputes
by the CCMA. Furthermore, the respondents would be prejudiced by not
being afforded a hearing.
11. Mr Nieuwoudt for the second respondent countered, firstly, that the rules
were not peremptory. Secondly, by the time the condonation ruling was
were not peremptory. Secondly, by the time the condonation ruling was
made on 10 August 2004, both the application for condonation and proof
of service of the referral had been lodged. In the alternative, he submitted
that subsections (1) and (3) of section 191 do not envisage such a
technical interpretation of the rules and that they distinguish clearly
between a referral and proof of service.
12. In support of his submission that the Court should not be overly technical,
Mr Nieuwoudt referred to Kruger & Another v MacGregor N.O. & Another
[1999] 9 BLLR 935 LC paras 1416 and 2330; Queenstown Fuel
Distributors CC v Labuschagne N.O. & Others [2001] BLLR 45 NAC;
Standard Bank of South Africa Ltd v Fogg & Others [2002] 9 BLLR 900 LC
paras 67; Rustenberg Platinum Mines Ltd v Monnapula [2003] 9 BLLR
909 LC at para 13.
13. I agree with Mr Nieuwoudt that section 191(2) 1[1] allows an employee to
apply for condonation at any time. Rule 10(2)(c) 2[2] read with Rule 9(2) 3
[3] merely directs an employee as to when and how to file an application
for condonation. Section 191(3) 4[4] requires an employee to satisfy the
CCMA that the referral has been served on the employer. Rule 10(2)(b) 5
[5] merely directs the employee as to how it can satisfy the CCMA.
1[1] “If the employee shows good cause at any time, the council or the Commission
may permit the employee to refer the dispute after the 30 day time limit has
expired.”
2[2] “The referring party must if the referral document is filed out of time, attach an
application for condonation in accordance with rule 9.”
3[3] “A party must apply for condonation, in terms of rule 31, when delivering the
document to the Commission.”
4[4] “The employee must satisfy the council or Commission that a copy of the
referral has been served on the employer.”
5[5] “The referring party must attach to the referral document written proof, in
accordance with rule 6, that the referral document was served on the other parties to
the dispute.”