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[2026] ZALCCT 41
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Dlakana v Education Labour Relations Bargaining Council and Others (C178/2021) [2026] ZALCCT 41 (6 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No: C178/2021
In
the matter between:
NOMFUNDO
DLAKANA
Applicant
and
EDUCATION
LABOUR RELATIONS
BARGAINING
COUNCIL
First Respondent
COMMISSIONER
R OLIVIER
Second Respondent
WESTERN
CAPE DEPARTMENT OF EDUCATION
Third Respondent
Heard:
5 March 2026
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 6 March 2026.
JUDGMENT
DE KOCK, AJ
Introduction
[1]
This matter comes before this Court as a
review application wherein the Applicant is seeking the Jurisdiction
Ruling by the Second
Respondent, dated 2 March 2021 and issued under
case number PSES436-18/19 WC, to be reviewed and set aside.
[2]
The Applicant and the Third Respondent duly
filed their respective pleadings in respect of the review
application, and both parties
submitted heads of argument. At the
commencement of the opposed review proceedings, this Court requested
both parties’ representatives
to address the Court regarding
the ruling issued by the Second Respondent. More specifically, this
Court enquired as to whether
the ruling dismissed the alleged unfair
dismissal dispute and/or whether the Second Respondent simply
declared the arbitration
proceedings null and void due to the
Applicant having been represented by a person who did not have the
required
locus standi
.
[3]
Neither of the two representatives could
refer this Court to any paragraph in the ruling where the Second
Respondent dismissed the
referral of an alleged unfair dismissal
dispute to the First Respondent. It is necessary for this Court to
refer to the relevant
parts of the ruling to determine this issue.
Jurisdictional Ruling
[4]
Paragraph
31 of the ruling states the following:
“
I
find that the material and fraudulent misrepresentation in this
matter where Mr Kwayiso, as the applicant’s representative,
acted as her representative without having locus standi vitiated the
whole of the arbitration proceedings and the matter is therefore
null
and void.”
[5]
This Court was also referred to paragraph
29 of the ruling which states as follows:
“
The
applicant submitted that even should costs be considered it should
only be considered when the arbitration is completed. I have
already
noted that this matter is null and void and from that point of view
the matter is concluded…”
[6]
It was argued that an inference was drawn
from this ruling that the referral was dismissed. This is obviously
the case as the Second
Respondent at no stage made a clear ruling
that the alleged unfair dismissal dispute referred was dismissed. It
was conceded by
the Third Respondent’s representative that no
such ruling was made and that the dispute should be referred back to
the First
Respondent for the arbitration proceedings to be heard
de
novo
.
Evaluation
[7]
This Court is of the view that the Second
Respondent did not issue a ruling that the alleged unfair dismissal
dispute be dismissed,
as the ruling does not contain any reference to
such an order. This Court will not consider this review application
based on an
inference to be drawn from a ruling. Either in terms of
the ruling the referral is dismissed, or the arbitration proceedings
are
declared null and void.
[8]
Even if it was the intention of the Second
Respondent to dismiss the referral, such a decision would be highly
irregular and subject
to being reviewed and set aside in totality.
The distinction between a defect going to the council’s
jurisdiction and a defect
going to a representative’s authority
is a material one in law. Jurisdiction concerns the competence of the
tribunal to hear
the dispute at all. This is a matter that cannot be
conferred or waived by the parties. The authority of a representative
is an
altogether different inquiry. It is a constraint operating on
the representative alone and does not infect the underlying dispute
or the party’s entitlement to have it determined. Where a
representative is found to lack authority, the proper legal
consequence is that the unauthorised representation falls away and
not that such representation should lead to a premature dismissal
of
a referral.
[9]
Section
138(1) of the Labour Relations Act
[1]
(LRA) requires a commissioner to determine the dispute fairly and
quickly. When an issue of
locus
standi
in the representation arises during arbitration proceedings, the
appropriate course is to deal with it as a procedural matter by
excluding the unauthorised representative and by affording the
employee an election to obtain proper representation before
proceeding.
A cost order against the offending party is available
where prejudice has been caused. What is not permissible is to treat
the
representative’s lack of authority as a basis for
terminating the proceedings and leaving the dispute unresolved. Since
the
dispute has not been determined, the only appropriate relief to
be granted in this application is for the dispute to be referred
back
to the First Respondent.
[10]
Even
on the most adverse view of the Applicant’s conduct, her right
to have her dispute determined has not been forfeited.
The right of
access to dispute resolution entrenched in sections 23 and 34 of the
Constitution is not extinguished by a representative’s
misconduct or the employee’s complicity in it. The system
provides for costs to be awarded as an instrument to address culpable
conduct; costs are not a substitute for a hearing on the merits. This
principle is now confirmed at the highest level. In
AFGRI
Animal Feeds (A Division of PhilAfrica Foods (Pty) Limited) v
National Union of Metalworkers South Africa and Others
[2]
,
the
Constitutional Court held that even where a union’s authority
to represent members was
ultra
vires
its registered constitution and void, “the dismissed employees
themselves are entitled to continue with the Labour Court
proceedings
in their own names.” The invalidity attaches to the
representative’s act; it does not extinguish the party’s
substantive right to have the dispute heard. There is no principled
basis for a different approach where the representative is
an
individual rather than a trade union.
[11]
The Court therefore finds that the
jurisdictional ruling must be set aside in its entirety. The cost
order against the Applicant
in the amount of R18,000.00 does not
survive the setting aside of the jurisdictional ruling. Both parties
had to incur unnecessary
legal costs to pursue a review application
when neither party ought to have been put through this unnecessary
expense. It is noted,
however, that the setting aside of the cost
order in these proceedings does not preclude the commissioner
presiding at the
de novo
hearing from making a cost order in respect of the conduct of the
unauthorised representative, should that be warranted, in the
exercise of the discretion available under section 138(9) and (10) of
the LRA.
[12]
Insofar as both parties requested this
Court to order costs, this Court is not of the view that costs should
be ordered. The review
application was not a frivolous application,
and neither was the opposition thereto frivolous. It is not in the
interest of law
and fairness for either party to pay costs.
[13]
In the premises, the following order is
made:
Order
1.
The jurisdictional ruling is reviewed and
set aside.
2.
The First Respondent is directed to
reschedule the dispute before a commissioner other than the Second
Respondent and the arbitration
proceedings are to be conducted
de
novo
.
3.
No order is made as to costs.
C.
de Kock
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. Z Mdana
Instructed
by:
Pam Ayanda Mdanjelwa from PA Mdanjelwa Attorneys
For the Third
Respondent: Adv.
Ngobeni
Instructed
by:
Lerato Rapasha from the State Attorney
[1]
Act 66 of 1995.
[2]
[2024] ZACC 13
;
2024 (9) BCLR 1111
(CC); (2024) 45 ILJ 1937 (CC);
2024 (5) SA 576
(CC);
[2024] 10 BLLR 999
(CC) (21 June 2024) at para
59.