THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR718/23
In the matter between:
SACCAWU OBO ITS MEMBERS First Applicant
MS LORRAINE SEGOE Second Applicant
MS ELSIE MPHAHLELE Third Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION(CCMA) First Respondent
COMMISSIONER E HAMBIDGE N.O Second Respondent
SUN INTERNATIONAL (SOUTH AFRICA) LTD Third Respondent
Heard: 27 June 2026
Delivered: 04 June 2026
JUDGMENT
BALOYI, AJ
Introduction.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
[1] This is an application to review and set aside the jurisdictional ruling issued by
the Second Respondent (Commissioner Hambidge) acting under the auspices
of the first Respondent , the Commission for Conciliation, Mediation and
Arbitration (CCMA). The ruling was issued under CCMA case no: HO 12- 23
on 3 April 2023.
[2] The review application is opposed by the Third Respondent , Sun International
South Africa Ltd.
The facts
[3] The facts in this matter are largely common cause. The applicant and the third
respondent have entered into collective agreements about wages and other
conditions of employment. To be specific, the agreements governed matters
such as remuneration increases, rate of night shift allowance and transport
allowances.
[4] The parties entered into what they called substantive agreements for the
period 2006 -2009, 2009-2011, 2011-2012 and 2022-2023.
1
[5] On 3 February 2023, the applicant referred a dispute to the CCMA in terms of
section 24 of the Labour Relations Act 2 (LRA). According to the applicant, the
referral related to two disputes. The first dispute was whether 2022- 2023
substantive agreement applies to the Luggage Supervisor and Most Valued
Guest Supervisor . The second dispute according to the applicant concerns
the payment of employees to whom the 2022- 2023 Substantive Agreement is
applicable, but who have not been paid the increase provided for in that
agreement. The applicant submit that the employees were instead paid a
lump sum in terms of the Equal P ay for Work of Equal Value Exercise
(EPWEV Alignment Exercise).
[6] The first respondent at the CCMA raised two points in limine relating to the
CCMA’s jurisdiction. Firstly, the third respondent contended that the first claim
has prescribed. The basis of the prescription concerned the interpretation and
1 Index to record, page 17 to 66
2 Act 66 of 1995, as amended.
application of the 2009- 2011 and the 2011- 2012 substantive agreements. It
was contended by the first respondent that the payment of the benefits was
more than three years old and had prescribed. Secondly, it was contended by
the third respondent that there was undue delay on the part of the applicant in
lodging the claim.
[7] The second respondent in her ruling first determined whether the dispute
constitutes a dispute in terms of section 24 of the LRA . In undertaking this
exercise, the second respondent relied on the judgment of the Labour Court in
the matter of HOSPERSA obo Tshambi v Department of Health, Kwa Zulu
Natal
3. The Labour Appeal Court (LAC) held that:
“logically, a dispute requires, at minimum, a difference of opinion about what
a provision of the agreement means. A dispute about the interpretation of a
collective agreement, requires at minimum, difference of opinion about a
question A dispute about the application of a collective agreement requires at
minimum, a difference of opinion about whether it can be invoked. The court
further held that the phrase interpretation or application is not be read
disjunctively. The enforcement of a collective agreement is a process which
follows on a positive finding about application and is not a facet of
application.”
[8] Having relied on the HOSPERSA judgment and analysing the dispute
between the parties , the second respondent came to the conclusion that the
dispute was not a true section 24 dispute but a breach of the collective
agreement and as a result the CCMA does not have jurisdiction to conciliate
the matter.
Grounds for review
[9] The applicant before this Court contends that the rul ing is reviewable on three
grounds:
9.1 Firstly, that the applicant was called upon to show that its dispute had
not prescribed and not instituted within the reasonable period. The
parties were not heard on the issues giving rise to the Commissioner’s
3 [2016] 7 BLLR 649 (LAC) at para 17.
ruling; namely there was no dispute between the parties concerning the
interpretation and application of a collective agreement.
9.2 The points in limine relating to prescription and unreasonable delay in
asserting one’s rights are disputes about the application of the
collective agreement.
9.3 The Commissioner misconstrued the nature of the issues in dispute.
The first respondent misinterpreted the 2022- 2023 substantive
agreement and its applicability
[10] It is submitted on behalf of the applicant that the Commissioner committed
gross irregularity by not hearing the parties on whether the dispute constituted
a section 24 dispute (interpretation and application dispute). It is submitted
further that the Commissioner’s decision is not the decision of reasonable
decision maker and the CCMA has jurisdiction to adjudicate the disputes.
[11] The third respondent contends that the review application has been brought in
terms of the incorrect section of the LRA. It should have been brought in
terms of section 158 of the LRA instead of section 145. The test applicable in
a review of a ruling is correctness and not reasonableness as pleaded by the
applicant.
[12] The third respondent further contends that the alternative relief sought by the
applicant in terms of section 77 of the Basic Conditions of Employment Act
(BCEA)
4 is not competent in these review proceedings. Such an application
must be brought in terms of a statement of claim as provided in Rule 6 of the
Rules for the Conduct of proceedings in the Labour Court 5. Overall, the
respondent submits that the ruling by the second respondent is correct as the
dispute is not covered under section 24 of the LRA.
Analysis
4 Act 75 of 1997
5 Now Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the
Labour Court. Published 3 May 2024 (GN 50608). Effective 17 July 2024.
[13] An arbitrator is required to determine the true dispute between the parties.
The arbitrator is therefore required to establish the relevant facts and construe
the category of the dispute correctly.
[14] In CASU v Tao Ying Industries and Others
6, the Constitutional Court held that:
‘A commissioner must, as the LRA requires, 'deal with the substantial merits
of the dispute'. This can only be done by ascertaining the real dispute
between the parties. In deciding what the real dispute between the parties is,
a commissioner is not necessarily bound by what the legal representatives
say the dispute is. The labels that parties attach to a dispute cannot change
its underlying nature. A commissioner is required to take all the facts into
consideration including the description of the nature of the dispute, the
outcome requested by the union and the evidence presented during the
arbitration. What must be borne in mind is that there is no provision for
pleadings in the arbitration process which helps to define disputes in civil
litigation. Indeed, the material that a commissioner will have prior to a hearing
will consist of standard forms which record the nature of the dispute and the
desired outcome. The informal nature of the arbitration process permits a
commissioner to determine what the real dispute between the parties is on a
consideration of all the facts. The dispute between the parties may only
emerge once all the evidence is in.’
[15] Having considered the second respondent’s ruling, the ruling is correct. 7 The
second respondent considered the dispute between the parties and correctly
concluded that the dispute was not about the application or interpretation of
the substantive agreement but of breach of the agreement.
[16] The applicant ’s review application is defective as it is brought in terms of
section 145 of the LRA and the ground for review is based on reasonableness
which appli es to review of arbitration awards.
8 In Ekurhuleni Metropolitan
which appli es to review of arbitration awards.
8 In Ekurhuleni Metropolitan
Municipality v Mabusela NO and Others9, the LAC said the following:
6 (2008) 29 ILJ 2461 (CC) at para 66.
7 Index pleadings, page 6-9, paras 15 -18.
8 Index to pleadings, Founding affidavit (FA), para 42.
9 (2023) 44 ILJ 137(LAC ) at para 27. see also SA Post Office v CCMA & Others [2018] 39 ILJ 1350
para 31 and Motlaase v CCMA & Others [2020] ZALCJB 186 para 63
“It is now established that the applicable test on review of a CCMA or
bargaining council arbitrator’s interpretation of a legal instrument is
correctness and not reasonableness. A reasonable arbitrator is not supposed
to get a legal point wrong.”
[17] In Fidelity Cash Management Service v CCMA and Others10, the LAC said the
following:
“Nothing said in Sidumo means that the grounds of review in sec 145 of the
Act are obliterated. The Constitutional Court said that they are suffused by
reasonableness. Nothing said in Sidumo means that the CCMA’s arbitration
award can no longer be reviewed on the grounds, for example, that the
CCMA had no jurisdiction in a matter or any of the other grounds specified in
sec 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of
the reasonableness of its decision would not arise. Also, if the CCMA made a
decision that exceeds its powers in the sense that it is ultra vires its powers,
the reasonableness or otherwise of its decision cannot arise”.
(Own emphasis)
[18] The alternative claims in my view should also fail. I agree with the
submissions made by the third respondent that such claim, if any, should be
brought by way of statement of claim in terms of rule 6 (see rule 11 of the
rules) of the Labour Court.
Conclusion
[19] In the circumstances, the impugned jurisdictional ruling is beyond reproach.
As such, this application must fail.
Costs
[20] It is trite that costs do not follow the result in this Court. In the circumstances
of the present case, I am disinclined to award costs.
[21] In the premises, I make the following order:
Order
10 (2008) 29 ILJ 964 (LAC) at para 101
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
F. Baloyi
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Mr A Roskam
Instructed by : Haffegee Roskam Savage Attorneys Inc
For the Respondent : Mr T Maruapula
Instructed by : Cliffe Dekker Hofmeyr Inc