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[2026] ZALCCT 44
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Tommy-Nel v Boldr (Pty) Ltd (2025/192509) [2026] ZALCCT 44 (10 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no:
2025-192509
(1)
Reportable Yes/No
(2)
Of interest to other Judges: Yes/No
(3)
Revised
In the matter between:
LAMOUR
TOMMY-NEL
Applicant
and
BOLDR
(PTY)
LTD
Respondent
Heard
:
10 March 2026
Delivered
:
10 March 2026
Summary:
(Default judgment application –
jurisdiction
is conferred on this Court in terms of section 191(5)(b) read with
section 191(11) of the LRA when the CCMA (or the
council with
jurisdiction, as the case may be), issues a certificate that the
dispute remains unresolved - a referral outside of
the time periods
means that the Court is divested of jurisdiction
)
JUDGMENT
MAY,
AJ
Introduction
[1]
This is an application for default judgment pursuant to a statement
of claim delivered by the Applicant acting in person
after the matter
was before the Commission for Conciliation, Mediation and Arbitration
(CCMA) previously.
Background
[2]
The dispute concerns the Applicant’s dismissal for operational
requirements. The Applicant referred the dispute
to the above
Honourable Court in terms of Section 191 (5)(b)(ii) of the Labour
Relations Act, 66 of 1995 (LRA).
[3]
The Applicant referred the matter to the CCMA on 18 June 2024, and
conciliation was held on 11 July 2024. The Applicant
elected to refer
the matter to arbitration at that stage and arbitration was held on
23 September 2025.
[4]
Commissioner Martin Rabie on 29 September 2025 issued a ruling that
the provisions of Section 191 (12) of the LRA does
not apply to
instances where the employer has dismissed more than one employee
within a 12-month period with a workforce of more
than 10 employees.
He therefore held that the CCMA lacks jurisdiction to deal with the
dispute and afforded the Applicant an opportunity
to refer the matter
to this Court.
[5]
Section 191(12) provides as follows “
if an employee is
dismissed by reason of the employer’s operational requirements
following a consultation procedure in terms
of Section 189 that
applied to the employee only, the employee may elect to the further
dispute either to Arbitration or to the
Labour Court
”.
[6]
S
191(12) does not expressly pronounce upon the jurisdiction of the
CCMA. What the section provides is that when a single employee
disputes the fairness of his/her dismissal for operational reasons,
and where such a dispute remains unresolved after conciliation,
the
single employee has a choice either to refer the dispute to the CCMA
for arbitration or to the Labour Court for adjudication
[1]
.
[7]
It
is trite that the LRA must be interpreted purposively to give effect
to an expeditious resolution of labour disputes
[2]
.
[8]
This Court is therefore not convinced that Commissioner Rabie’s
interpretation of the section is correct. It is
however not necessary
to say more on this.
[9]
Section 191 (11)(a) requires that a referral in terms of Section 191
(5)(b) be made within 90 days after the commissioner
has certified
that the dispute remains unresolved. This means that the Applicant
had 90 days within which to refer the dispute
to this Court which she
unfortunately did not do.
[10]
The 90-day
period for referring the matter to this Court is triggered by the
earlier of either the elapse of 30 days from the date
of the referral
to the CCMA, or the issue of the certificate of outcome
[3]
.
In this case, the 90-day period is calculated from the issue of the
certificate of outcome.
[11]
In
NUM
v Hernic Exploration (Pty) Ltd
,
[4]
the LAC stated that jurisdiction is conferred on this Court in terms
of section 191(5)(b) read with section 191(11) of the LRA
when the
CCMA (or the council with jurisdiction, as the case may be), issues a
certificate that the dispute remains unresolved.
This was followed by
this Court in N
ational
Union of Metalworkers of SA and another v BMW (SA) (Pty) Ltd
[5]
.
It follows therefore that a referral outside of the time periods
means that the Court is divested of jurisdiction.
[12]
As stated above, the LRA must be interpreted purposively to give
effect to an expeditious resolution of labour disputes.
In light of
this obligation, this Court is mindful of avoiding permanently
closing the door on the Applicant.
[13]
In the premise the following order is made:
Order
1. The Applicant is
ordered to apply for condonation for the late filing of her statement
of claim within 30 days from date
of this order.
2. The Respondent
is ordered to file its statement of response accompanied by an
application for condonation for the late
filing thereof within 15
days of receipt of the application for condonation.
3. No order as to
costs.
C.
May
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Applicant
in person
For
the respondent:
Ms Lewendal
Instructed
by:
Ms L Slamet, Adriaans Attorneys, Cape Town
[1]
Scheme
Data Services (Pty) Ltd. v. Myhill N.O. and Others
[2009]
4 BLLR 381
(LC
)
and
Bracks
NO and Another v Rand Water and Another
(JA 2/08)
[2010] ZALAC 4
; (2010) 31 ILJ 897 (LAC); [2010] 8 BLLR 795
(LAC)
[2]
Bracks
supra
at para 11.
[3]
SA
Municipal Workers Union on behalf of Manentza v Ngwathe Local
Municipality and Others
[2015]
ZALAC 26
; (2015) 36 ILJ 2581 (LAC) at paras 28 - 30. See also
NUMSA
v Driveline Technologies (Pty) Ltd and Another (Driveline
Technologies)
[1999] ZALC 157
;
[2000] 1 BLLR 20
(LAC),
and
Premier of Gauteng and Another v Ramabulana NO and Others
(Ramabulana
)
[2007] ZALAC 16; [2008] 4 BLLR 299 (LAC).
[4]
[2003] 4 BLLR 319
(LAC) at para [45].
[5]
6 (2019) 40 ILJ 1818 (LC)