IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not Reportable
CASE NO: PR194/24
In the matter between:
BEWAMU obo HLUNIKAZI MOMANE AND 4 OTHERS Applicants
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
JONATHAN GRUSS N.O (COMMISSIONER) Second Respondent
SOUTH AFRICAN BROADSACTING CORPORATION SOC Third Respondent
Heard: 26 November 2025
Delivered: This judgment was handed down electronically by circulation to the
Applicants’ representative and the Third Respondent’s Legal
Representative by email, publication on the Labour Court website
and release to SAFLII. The date and time for handing - down is
deemed to be 14h00 on 12 March 2026.
JUDGMENT
LALLIE J
[1] The Commission for Conciliation, Mediation and Arbitration (the CCMA) was
created by section 112 of the Labour Relations Act 1 (the LRA). Its main
function is to resolve disputes between employers and employees through
conciliation and through arbitration when conciliation has not yielded positive
results. The jurisdiction of the CCMA is prescribed by legislation including the
LRA. Section 191 of the LRA confers the jurisdiction to conciliate and arbitrate
unfair dismissal disputes arising from misconduct. The applicants launched
this application in terms of section 145 of the LRA seeking an order reviewing
and setting aside a ruling of the second respondent in which he found that the
CCMA lacked jurisdiction to arbitrate a consolidated dispute they had referred
against the third respondent. The application is opposed by the third
respondent.
[2] The individual applicants were employed by the third respondent who will be
referred to as the SABC in this judgment, as technical producers. They were
dismissed on 31 October 2023 having collectively served the SABC for 84
years. In 2022 the individual applicants expressed their dissatisfaction with
the way in which the SABC scheduled their work. Each party had a different
view of how work should be scheduled. The parties could not reach a
common understanding on the issue and each struck to its gun s. As a result
of the impasse the SABC instituted disciplin ary enquir ies against the
individual applicant s. They were all found guilty of absence without
authorization/permission, gross insubordination, alternatively insolence,
unprotected/unlawful strike/work to rule and non -compliance with their
employment contracts and dismissed. They referred separate unfair dismissal
1 Act 66 of 1995, as amended.
disputes to the CCMA. The SABC filed an application for consolidation of the
disputes. The applicant trade union, BEMAWU, supported it. On 5 February
2024 commissioner Van der Walt issued a ruling consolidating all 5 disputes.
The consolidated d ispute was subsequently scheduled for arbitration by the
second respondent, hereinafter referred to as the commissioner.
[3] In the ruling under review the commissioner recorded that at the
commencement of t he arbitration the SABC raised a point in limine that the
CCMA lacked jurisdiction to arbitrate the dispute before him because the
applicants’ reasons for dismissal included participation in an unprotected
strike/work to rule. He noted that the charges which led to the dismissal of the
individual applicants were based on the allegation that on different days in
April 2023 each individual applicant failed to follow the approved shift
roster/schedule despite numerous discussions with his/her line manager but
continued to defy the manager’s instructions by not offering his or her
employment services and worked her preferred working hours and days. The
conduct resulted in the Eastern Cape Radio Station combo potentially losing
some audience and revenue in terms of adverts due to his or her misconduct.
[4] Clarifying the point in limine the commissioner stated that he had to determine
whether the applicant’s conduct of not following the approved shift
roster/schedule amounted to a strike as envisaged in section 213 of the LRA.
The commissioner considered that it was not in dispute that t he individual
applicants refused to work according to the approved shift roster (the roster)
in April 2023. Their justification was that the roster was published late, in
contravention of the collective agreement regulating their basic conditions of
employment in respect of working time and rendered compliance with it
unlawful. They further submitted that the collective agreement required the
SABC to enter into an agreement with employees to be scheduled for
overtime every year, which the SABC failed to do. The last agreement to work
overtime lapsed on 31 March 2023. It was the applicants’ case that as a result
of the failures , they decided to revert to normal working hours which were
05h00 to 16h30 weekdays only.
[5] The commissioner accepted Mr Makatesi’s evidence that before being
appointed to the positions they held on dismissal t he individual applicants
were working unsociable hours based on a schedule. The collective
agreement defined the period from 17h00 to 07h00 on a weekday and 17h00
Friday to 07h00 on Monday as unsociable hours. He also considered a
memorandum signed by the applicants dated 28 February 2023. It is
addressed to the section leader of operations in the EC. The salient part of
the memorandum reads:
“we regret to inform you that from 1 A pril 2023, we will no longer be available
to work overtime. This collective decision comes after multiple attempts to try
and mitigate issues facing the undersigned team members regarding the
application of the TMP. There are promises made to try and resol ve the
issues surrounding the TMP and until such issues are resolved, the
undersigned team members will not be signing the overtime agreement form
for the next fiscal.”
[6] A further memorandum signed by the applicants was sent to the same
recipient on 27 March 2023. It conveys the individual applicants’ persistence
with the position they took in the following words:
“morning shift, DS shift, afternoon shift a nd weekend schedule. The following
message is conveyed therein “after the publication of the shift roster for the
month of April 2023, we have noticed that you made a mistake of assigning
the mentioned shift to us. We would like to bring to your attention that those
three shifts M, A and DS carry overtime, with weekend also forming part of
the ove rtime which we indicated on the document submitted to you on 28
February 2023 that we will not be available to work overtime until our issues
regarding TMP are resolved. Morning shift carries 30 minutes overtime
(Monday to Friday) DS shift carries 20 minut es overtime (Monday to
Thursday) and night shift carries one hour overtime (Monday to Friday)
weekend schedule falls outside the 40 hours per week, which is required from
the employee by the employer”.
[7] The last memorandum the commissioner relied on is dated 3 April 2023. It
was signed by all the individual applicants and is also addressed to the leader
of operations EC. It reads as follows:
“after the publication of the shift roster for the month of April 2023, we have
indicated to you that you made a m istake of assigning us to work overtime
though we indicated o n the 28 February 2023 when we gave you are signed
internal memorandum, that we will not be available to be scheduled to work
overtime work till our unresolved issues of Time Managing Principal c ollective
agreement are resolved. We would like to bring to your attention that your
actions to forcefully assigning us to work overtime work are breaking the
BCEA.”
[8] The commissioner concluded that the individual applicants’ conduct
constituted a strike within the meaning of section 213 of the LRA. He was not
persuaded by their evidence that although they presented a joint grievance,
they individually took the decision whether to work in terms of the roster. He
expressly added that his decision was limi ted to the issue of jurisdiction only
and excluded the existence or otherwise of substantive grounds for dismissing
the individual applicants for participating in an unprotected strike.
[9] The applicants’ main grounds for review are that the commissioner committed
several gross irregularities in the conduct of the arbitration which rendered the
award unreasonable. They submitted that in the consolidation ruling
commissioner Van der Walt made a finding that ‘the CCMA has jurisdiction on
all disputes sought to be consolidated’. The y added that the commissioner
overlooked their submission that commissioner Van der Walt had already
made a finding on jurisdiction. Had he considered it he would have reached a
different decision on jurisdiction. The SABC admitted that commissioner Van
der Walt stated in paragraph 7 of his consolidation ruling that in the matter
before him all the requirements l isted in rule 28 of the Rules of Conduct of
Proceedings before the CCMA (the CCMA Rules) were present. It, however,
denied the consequences of the finding.
[10] It was argued on behalf of the SABC that the applicants adopted an incorrect
approach in submitting that the consolidation ruling was valid until reviewed
and set asid e and that it clothed the CCMA with jurisdiction to arbitrate the
dispute. It was further submitted that as a creature of statute the CCMA
cannot make a determination on its own jurisdiction. I t can merely express its
view as it is the Labour Court that has jurisdiction to make a decision whether
the CCMA ha s jurisdiction. It was argued that I must assess the correctness
of the commissioner’s ruling based on its objective assessment of the facts
and evidence.
[11] A review application is determined on the t otality of the evidence which was
properly placed before the commissioner 2. In Fidelity Cash Management
Services v CCMA and Others 3 the court emphasized the need to consider all
the evidence tendered at arbitration including reasons for a commissioner’s
decision that existed but not identified by the commissioner.
[12] In the consolidation ruling commissioner Van der Walt made the fol lowing
finding:
“6. Rule 28 of the Conduct of Proceeding before the CC MA provides that
a commissioner may consolidate more than one dispute so that the
disputes may be dealt with in the same proceedings.
7. The commissioner may order consolidation of separ ate disputes,
where:
(a) the relief sought in each of the separate dispute to be
consolidated, depends on the determination of similar or
substantially the same questions of law and fact;
(b) there will be no substantial prejudice on the party or parties
sought to be joined through a consolidation order;
(c) the balance of convenience favour[s] such consolidation;
(d) the CCMA has jurisdiction on all disputes sought to be
consolidated”
8. In the present matter all the requirements listed are present and all the
parties to the various disputes require a consolidation.”
2 Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus cariae) [2013] 11 BLLR 1074 4
(SCA) at para 25.
3 [2008] 3 BLLR 197 (LAC) at para 103.
[13] When the SABC raised the point in limine that the CCMA lacked jurisdiction
the applicant reminded it that in the consolidation application it was stated
under oath on its behalf that the CCMA had the necessary jurisdiction. The
applicants further submitted that the CCMA had already made a finding that it
had the necessary jurisdiction which stands until set aside on review. It is
common cause that the commissioner overlooked the applicants’ submissions
on the consequences of the consolidation ruling. In Herholdt v Nedbank
(supra) the following was held:
“[25] In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible if the defect in the proceedings falls
within one of the grounds in s 145(2)(a) of the LRA. For a defect in the
conduct of the proceedings to amount to a gross irregularity as contemplated
by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the
inquiry or arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach on all the material that
was before the arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to particular facts, are not in and of themselves
sufficient for an awar d to be set aside, but are only of any consequence if
their effect is to render the outcome unreasonable.”
[14] The commissioner erred in disregarding the evidence that the issue of the
CCMA’s jurisdiction had already been pronounced upon by commissioner Van
der Walt. The evidence is material in that after commissioner Van der Walt
had made a pronouncement on the CCMA’s jurisdiction over all the
consolidated cases, the CCMA became funstus officio on the issu e. It had
made its finding. It therefore had no residual powers to reconsider it.
[15] The doctrine of functus officio is clarified as follows by DM Pretorius an article
that was referred to with approval in PT Operational Services (Pty) Ltd v
Rawu obo L Ngwetshana an unreported decision on the Labour Appeal Court
handed down on 27 November 2012 under case number JA7/114:
“The functus officio doctrine is one of the mechanisms by means of which the
law gives expression to the principle of finality. According to this doctrine, a
person who is vested with adjudicative or decision making powers may, as a
general rule, exercise those powers only once in relation to the same matter.
This rule applies with particular force, but not only, in circumstances w here
the exercise of such adjudicative or decision -making powers has the effect of
determining a person’s legal rights or of conferring rights or benefits of a
legally cognizable nature on a person. The result is that once such a decision
has been given, i t is (subject to any right of appeal to a superior body or
functionary) final and conclusive. Such a decision cannot be revoked or
varied by the decision -maker. However, this is not an absolute rule. The
instrument from which the decision -maker derives his adjudicative powers
may empower him to interfere with his own decision. Furthermore, it is
permitted to make variations necessary to explain ambiguities or to correct
errors of expression in an order, or to deal with accessory matters which were
inadvertently overlooked when the order was made, or to correct costs orders
made without having heard argument on costs. This list of exceptions might
not be exhaustive and a court might have discretionary power to vary its
orders in other cases. However, this pow er is exercised very sparingly, for
4 DM Pretorius: The Origin of the functus officio doctrine, with specific reference to its application in
Administration Law 2005 SALJ vol 122 page 832 at 832-833.
public policy demands that the principle of finality in litigation should generally
be preserved rather than eroded. The same considerations that require
finality for the decisions of courts of law apply to the decisions of
administrative authorities. Consequently, the functus officio doctrine applies in
administrative law as it does in relation to curial proceedings. In elementary
terms, the effect of the functus officio doctrine in administrative law is that an
administrative agency which has finally performed all its statutory functions or
duties in relation to a particular matter subject to its decision -making
jurisdiction has exhausted its powers and has discharged its mandate in
relation to that matter. Consequently, such an agency is without further
authority as far as that matter is concerned because it’s duties and functions
have been fully accomplished. Thus, an administrative agency which is
functus officio is unable to retract or change its own earlier decision, unless it
is authorised by its enabling legislation to do so.”
[16] The commissioner’s error of overlooking the applicants’ submissions based
on the consolidation ruling had a distorting effect on the decision he reached
on jurisdiction. Had he considered the submissions he would have concluded
that the CCMA, through commissioner Van der Walt , had already made a
finding on jurisdiction and that it was functus officio . He would not have
reconsidered the issue and overturned commissioner Van der Walt’s finding
acting in excess of his powers. The CCMA, as a creature of statute , may only
exercise powers vested in it by legislation. N o legislation empowers a
commissioner of the CCMA to consider an issue on which another has made
a pronouncement and overturn a finding of a fellow commissioner . The
decision under review has a defect as envisaged in section 145(1) of the LRA
in that the commissioner committed a gross irregularity in conducting the
enquiry into the point in limine by disregarding material and relevant evidence.
His conduct resulted in him reaching the incorrect decision that the CCMA
lacked jurisdiction to arbitrate the consolidated dispute. A decision on
jurisdiction must be correct. The correct decision was that the CCMA was
functus officio. Th e significance of the need to issue the correct decision is
that each decision has its own consequences. The finding that the CCMA is
functus officio on the issue of jurisdiction permits it to arbitrate the dispute.
However, the finding that the CCMA lacks jurisdiction because the
consolidated dispute is justiciable at the Labour Court precludes the CCMA
from arbitrating the dispute as it places it under the jurisdiction of the Labour
Court.
[17] As the ruling under review has a defect it is reviewed and set aside.
[18] The SABC did not act unreasonably in opposing this application in defence of
a ruling in its favour.
[19] The parties filed a full set of papers which placed me in a position to invoke
the provisions of section 145(4)(a) of the LRA and determine the dispute. For
the reasons already given in the judgment the CCMA lack ed jurisdiction to
determine the point in limine because it was functus officio.
[20] In the premises, the following order is made:
1. The jurisdictional ruling issued by the second respondent on 23 August 2024
under case number ECGQ6674 -23 is reviewed and set aside and substituted
with the following:
1.1 The CCMA lack s jurisdiction to determine the point in limine on
jurisdiction.
2. There is no order as to costs.
MZM Lallie
Judge of the Labour Cour of South Africa
Appearances:
For the Applicant: Mr H. du Buisson of BEMAWU
For the Third Respondent: Mr C de Heus of Masilo Attorneys