September and Others v CMI Business Enterprise CC (CCT279/16) [2018] ZACC 4; 2018 (4) BCLR 483 (CC); (2018) 39 ILJ 987 (CC); [2018] 5 BLLR 431 (CC) (27 February 2018)

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[2018] ZACC 4
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September and Others v CMI Business Enterprise CC (CCT279/16) [2018] ZACC 4; 2018 (4) BCLR 483 (CC); (2018) 39 ILJ 987 (CC); [2018] 5 BLLR 431 (CC) (27 February 2018)

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CONSTITUTIONAL COURT
OF SOUTH AFRICA
Case CCT 279/16
In
the matter between:
THEO
SEPTEMBER
First Applicant
DEAN
SEPTEMBER
Second Applicant
ROLAND
PAULSEN
Third Applicant
and
CMI
BUSINESS ENTERPRISE
CC
Respondent
Neutral
citation:
September
and Others v CMI Business Enterprise CC
[2018]
ZACC 4
Coram:
Zondo DCJ, Cameron J, Froneman J, Jafta J,
Kathree Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J,
Theron J and Zondi
AJ
Judgments:
Theron J (majority): [1] to [79]
Zondo DCJ (dissenting):
[80] to [152]
Heard
on:
10 August 2017
Decided
on:
27 February 2018
Summary:
Rules for the Conduct of Proceedings
before the Commission for Conciliation, Mediation and Arbitration —
rule 16 prior to
2015 amendment — allows courts, in exceptional
circumstances, to consider evidence emanating from conciliation
proceedings
— evidence as to the nature of the dispute
conciliated is not privileged
Rescission of default
judgment — dispute of automatically unfair constructive
dismissal conciliated — Labour Court had
jurisdiction to hear
the dispute — default judgment not erroneously granted
ORDER
On
appeal from the Labour Appeal Court, the following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Labour Appeal Court is set
aside and substituted with:
“
The
appeal is dismissed”.
4.
There is no order as to costs.
JUDGMENT
THERON J (Cameron J,
Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J,
Mhlantla J and Zondi AJ concurring):
Introduction
[1]
This is an application for leave to appeal
against the judgment and order of the Labour
Appeal
Court
handed down on 26 October 2016 setting aside a default judgment
granted by the Labour Court against the respondent and in
favour of
the applicants.  This matter concerns the interpretation and
application of rule 16 (in its pre-amended form) of
the Rules of the
Commission for Conciliation, Mediation and Arbitration (CCMA Rules).
The main question in this matter is
whether the Labour Court
could receive and rely on evidence which related to discussions held
during a conciliation hearing
at the Commission for Conciliation,
Mediation and Arbitration (CCMA), which in turn related to the
determination of the dispute
between the parties or whether that
evidence is privileged.
Parties
[2]
The first to third applicants are Mr Theo
September, Mr Dean September and Mr Roland Paulsen (the applicants),
who were employed
by the respondent, CMI Business Enterprise CC.
The respondent conducts the business of maintenance and mechanical
field services
in the mining industry in South Africa and in other
African countries.
Factual background
[3]
The applicants commenced employment with
the respondent during the course of August 2009.  They were
employed as general workers
and were required to perform various
duties, primarily technical and mechanical, on mining related
projects throughout Africa.
[4]
The applicants resigned on 13 September
2011.  They alleged this was as a result of the respondent
making their working conditions
intolerable.  On this day, they
sent a text message to Mr Cronje, the respondent’s founder,
informing him that they
could no longer tolerate the working
conditions to which they were subjected.  They alleged that they
were subjected to racial
discrimination which manifested in physical,
verbal and mental abuse.
Litigation History
CCMA
[5]
The
applicants lodged two referral forms with the CCMA.  The first
was in respect of an alleged unfair labour practice and
the Skills
Development Act.
[1]
The
second was in respect of alleged unfair discrimination in terms of
the Employment Equity Act.
[2]
[6]
In
form 7.11
[3]
(referral form) the
dispute was described as “[u]nfair discrimination section 10 of
the Employment Equity Act”.
Under item 6, in respect of
the results of conciliation, the applicants described their desired
outcome as “[e]mployer to
stop discriminating us”.
The dispute was set down for conciliation on 10 October 2011.
The respondent was a member
of Ad Finem Employers’ Organisation
and Mr Andrew Lewis, an official of that employer organisation who
has since passed away,
represented the respondent.  The
conciliation hearing was attended by the applicants and Mr Lewis.
According to the
applicants, it became apparent during the
conciliation hearing that the dispute was primarily one of
constructive dismissal.
They also submit that this was
canvassed to some extent during the proceedings.
[7]
On 1 November 2011, the commissioner issued
a certificate of outcome, certifying that a dispute of “unfair
discrimination”
remained unresolved and indicating that the
matter could be referred to the Labour Court.
Labour
Court
[8]
On 12 January 2012, the applicants
instituted proceedings in the Labour Court, in terms of sections 187
and 191 of the Labour Relations
Act, by way of a statement of claim.
They sought an order that their resignations amounted to
automatically unfair dismissals
based on racial discrimination and
compensation.
[9]
The statement of material facts filed by
the applicants in the Labour Court set out in detail the incidents of
abuse suffered at
the hands of their employer.  They were the
only black employees of the respondent.  The applicants alleged
they were
addressed and referred to as “coloureds”,
“kaffir[s]”, “koffee stokkies”, “kittare”,

“tang”, “kettings”, “warm knope”,
“Hottentote” and “Bushies”.
Mr Cronje
would also read from a cult book and publicly make statements such as
“Blacks are animals which have the footprint
of a human”.
[10]
The applicants spent prolonged periods away
from home working on mining sites.  They were often provided
with accommodation
inferior to that of their white counterparts.
On an assignment in September 2009, in Komatiepoort, no accommodation
was arranged
for the applicants and they were forced to sleep in a
toilet.  In September 2011, at the Khumani Mine in the Northern
Cape,
the accommodation quarters of the white employees had separate
bathrooms, a kitchen and contained appliances such as flat-screen

televisions, fridges and kettles.  The applicants slept in a
washroom without separate toilet facilities.
[11]
When early morning travel was necessary,
the applicants, unlike the white employees, were required to sleep at
Mr Cronje’s
residence.  The room allocated to the
applicants was stacked with tools and car parts and had an open
toilet attached to it.
The room was usually used to house Mr
Cronje’s dogs.  The applicants were always obliged, when
being transported to
and from work, to sit at the back of the
vehicle.  If they attempted to sit in the front, they were asked
if they were “becoming
white” and were told that “a
dog should know its place”.
[12]
At various times during their employment,
the applicants were subjected to physical abuse by Mr Cronje.
In Mali, during July
2010, the first applicant was slapped on the
face whilst the second applicant had a hard-hat thrown at him.
In November 2010,
in Chingola, Zambia, Mr Cronje hit the third
applicant on the back.  The applicants were also denied training
opportunities,
which were available to white employees.
[13]
The
respondent opposed the claim alleging that the applicants had
absconded from their employment and that the Labour Court did
not
have jurisdiction to adjudicate the dispute.  The respondent
failed to oppose the claim in accordance with the rules and
practices
of the Labour Court.  As a result, the Labour Court deemed the
matter to be unopposed.  On 12 February 2013,
the Labour Court
granted default judgment in favour of the applicants.
[4]
[14]
The
Labour Court held that it was “satisfied that the applicants
were constructively dismissed” as they were forced
“to
work under intolerable working conditions which entailed racial abuse
and racially discriminatory treatment”.
[5]
The Labour Court further held that the dismissal was “based on
their race” and was automatically unfair in terms
of section
187(1)(f)
[6]
of the Labour
Relations Act.
[7]
The
respondent was ordered to pay the maximum compensation permitted by
the Labour Relations Act, namely 24 months remuneration,

calculated to be R240 000 for the first and second applicants
and R192 000 for the third applicant.
[8]
Rescission
judgment
[15]
On 2 May 2013, the respondent applied to
the Labour Court for rescission of the default judgment granted
against it.  It alleged
that it had relied on Mr Lewis to
represent it in all proceedings before the Labour Court.  Mr
Lewis maintained that he had
not received notice of set down of the
proceedings in the Labour Court.
[16]
The
respondent contended that the judgment was granted erroneously as the
Labour Court did not have jurisdiction to hear the matter.

Essentially, the respondent argued that the nature of the dispute had
changed from what was referred to the CCMA.
[9]
The applicants maintained that the true nature of the dispute became
apparent during the CCMA proceedings and that it was
a dispute of
“constructive dismissal due to unfair discrimination”.
They alleged that with the assistance of
the commissioner the dispute
was “extensively canvassed”.  On this basis, they
asserted that the Labour Court
did have jurisdiction.
[10]
[17]
The
Labour Court was alive to the jurisdictional fact that before
arbitration or adjudication can occur the dispute must have been

referred to conciliation.  The Labour Court had regard to rule
15
[11]
and held that the
nature of a dispute is determined either by what is contained in the
referral document or by what the commissioner
identified during the
proceedings.
[12]
It
further held that the commissioner is required to determine the
nature of the dispute in order to be able to attempt to
conciliate
the dispute.  In order to do this, the commissioner cannot be
“precluded from enquiring into the nature of
the dispute
because the referrer of the dispute did not absolutely accurately
describe the dispute”.
[13]
The Labour Court held that it would frustrate the functions of the
commissioner if the nature and description of the dispute
in the
referral were to be strictly interpreted.
[14]
[18]
The
Labour Court concluded that it had jurisdiction as there was a
referral of the dispute for conciliation and a certificate was
issued
stating that it had not been resolved.
[15]
Consequently, the Labour Court held that the order and judgment were
not granted erroneously as there was “no error
in procedure, or
any mistake”.
[16]
The Labour Court dismissed the respondent’s application with
costs.
[17]
Gush J
granted the respondent leave to appeal on 29 October 2014.
[18]
Labour Appeal Court
[19]
In
the Labour Appeal Court the respondent again argued that the Labour
Court had no jurisdiction as the dispute had not been referred
to
conciliation and relied on section 165
[19]
of the Labour Relations Act, alternatively, rule 16A
[20]
for requesting the rescission of the order and judgment of the Labour
Court.  The main issue before the Labour Appeal Court
was
whether “constructive dismissal based on unfair discrimination
had been conciliated before the referral to the Labour
Court”.
[21]
[20]
The
Labour Appeal Court had regard to
Driveline
[22]
and reasoned:
“
The
upshot of
Driveline
is, therefore, two-fold.  First, that where the real issue was
conciliated, the employee’s statement of case can be
amended to
broaden the issue’s characterisation.  However, where the
issue was never referred to conciliation at all,
the Labour Court
does not have jurisdiction to determine the dispute.  In short,
it is now settled that referral for conciliation
is a precondition to
Labour Court jurisdiction.  Obviously, where a dispute arises as
to whether the real dispute was conciliated,
that is a factual
enquiry which must be determined with reference to the facts of a
particular case.  Such an enquiry, however,
falls within a very
narrow compass, in my view.  It can only be determined with
reference to two aspects, namely, the characterisation
of the dispute
on the referral form and the contents of the certificate of outcome.
The contents of the certificate of outcome
are especially important
in this regard, for they mirror the nature of the real dispute
identified in the conciliation.”
[23]
[21]
The Labour Appeal Court then considered
whether the dispute of unfair dismissal was actually conciliated.
It noted that the
dispute that the applicants had referred for
conciliation was one of unfair discrimination.  It added:
“
It
is common cause that the dispute which the respondents had referred
for conciliation was for unfair discrimination.  The
referral
form makes no mention of unfair dismissal, even though that is one of
the options available on the form.  Part ‘B’
of the
referral form, which is to be completed for dismissal disputes only,
was not only left uncompleted, but it was crossed out
with the words
‘cancelled’ in between two lines.  The nature of the
dispute was stated to be an unfair discrimination
in terms of section
10 of the Employment Equity Act.”
[24]
[22]
The
Labour Appeal Court held that the Labour Court erred as the evidence
supported the conclusion that the referral was for unfair

discrimination, not dismissal based on unfair discrimination and that
the applicants did not consider themselves to have been
dismissed.
[25]
Consequently, the Labour Appeal Court held that it was not clear
whether the applicants were dismissed.
[26]
[23]
In
addition, the Labour Appeal Court held that the Labour Court erred in
concluding that an unfair dismissal dispute had been conciliated.

The Labour Appeal Court held that the evidence of what
“supposedly” transpired during the conciliation
proceedings
was inadmissible in the subsequent Labour Court
proceedings.  The Labour Appeal Court held that the Labour
Court’s conclusion
that the unfair dismissal was conciliated
was “not supported by any admissible evidence”.  The
Labour Court should
have held that it did not have jurisdiction to
hear the dispute as it was “not entitled to venture beyond the
referral form
and the certificate of outcome” in an endeavour
to determine what dispute was conciliated.
[27]
In this Court
Submissions
of the parties
[24]
The applicants maintain that the Labour
Appeal Court’s interpretation of rule 16 does not promote
the spirit, purport
and objects of the Bill of Rights as required by
section 39(2) of the Constitution.  They further submit that it
is wrong
to adopt the Labour Appeal Court’s approach which
limits the role and function of the commissioner to determine the
nature
of the dispute with reference only to the description of the
dispute given by the referring party.
[25]
Whilst the respondent accepts that the
Labour Relations Act is a subsidiary constitutional enactment, it
maintains that this application
does not fall within the realm of
matters that warrant the attention of this Court.  The
respondent contends that this matter
does not raise a fresh issue
pertaining to the interpretation, protection or enforcement of the
Constitution in relation to privilege
and the law of evidence.
It further contends that the application does not raise an arguable
point of law of general public
importance which ought to be
considered by this Court, as it concerns the application of rule 16
prior to its amendment during
March 2015.
[26]
In regard to the merits, the respondent is
of the view that the applicants’ claim is premised on false
allegations of racial
discrimination and abuse.  The respondent
contends that there is no constitutional imperative to interpret the
pre-amended
rule 16 so as to allow disclosure of communications
in conciliation proceedings.  According to the respondent, this
is
unambiguously prohibited by the rule.  The respondent
maintains that evidence on how the dispute in question was identified

by the commissioner in conciliation is limited to the contents of the
certificate of outcome.  The respondent further submits
that
parties to conciliation proceedings are vested with rights to
absolute privacy pertaining to conciliation proceedings under
the
pre amended rule 16.
Condonation
[27]
The respondent applied for condonation for
the late filing of its notice of intention to oppose.  The delay
was slight, being
only four days, and the explanation provided was
reasonable.  As such, condonation should be granted.
Jurisdiction
[28]
Section 167(3) and (7) of the Constitution
provides:
“
(3)
The Constitutional Court—
…
(b)
may decide—
(i)
constitutional matters; and
(ii)
any other matter, if the Constitutional Court grants leave to appeal
on the grounds
that the matter raises an arguable point of law of
general public importance which ought to be considered by that Court;
…
(7)
A constitutional matter includes any issue involving the
interpretation, protection or enforcement
of the Constitution.”
[29]
The
applicants rely on both sub-section 167(3)(b)(i) and (ii) in
submitting that this Court has jurisdiction to hear this matter.

Whether a matter is a constitutional matter should not be interpreted
narrowly.
[28]
A constitutional matter may involve the direct application of the
Bill of Rights; the direct application of other provisions
of the
Constitution; as well as the indirect application of the Bill of
Rights.
[29]
This
Court has held that “the interpretation and application of
legislation that is specifically mandated by the
Constitution is
always a constitutional matter”.
[30]
[30]
The
questions raised concern the interpretation of the CCMA Rules that
are promulgated in terms of the Labour Relations Act and,
in
particular, the rights of employees to fair labour practices under
section 23 of the Constitution.  Interpretation of the
Labour
Relations Act is a constitutional matter.
[31]
In light of this conclusion, it is not necessary to consider whether
the application raises an arguable point of law of general
public
importance.
Leave to appeal
[31]
Whether this Court will grant leave to
appeal will depend on whether it is in the interests of justice to do
so.  In answering
this question this Court may have regard to a
variety of factors.
[32]
The
relief sought goes beyond the interests of the applicants alone and
it “implicate[s] the interest[s] of a significant
part of the
general public”.
[32]
A
substantial portion of the population utilises the dispute resolution
mechanisms created by the Labour Relations Act
in order to
resolve their labour disputes and to enforce their rights to fair
labour practices.
[33]
This Court is called upon to determine
whether it is permissible to lead evidence emanating from
conciliation proceedings at subsequent
proceedings.  The courts
have not been consistent in their application of rule 16 and clarity
on the correct interpretation
and application of this rule would be
desirable.  In addition, for the reasons set out below, I am of
the view that there
are reasonable prospects of success.
[34]
As alluded to, rule 16 has since been
amended.  However, the interpretation this Court may attribute
to rule 16 in its pre-amended
form will have a significant impact not
only on the applicants’ matter, but also on similar cases which
have been launched
before the amendment.
[35]
For the reasons set out above I am of the
view that it is in the interests of justice to grant leave to appeal.
Discussion
Functions of
commissioners
[36]
Section
135 of the Labour Relations Act sets out the powers of the
commissioner to resolve a dispute through conciliation.  Section

135(3) provides that the commissioner must determine a process to
resolve the dispute, which may include (a) mediating the dispute;
(b)
conducting a fact-finding exercise; and (c) making a recommendation
to the parties, which may be in the form of an advisory
award.
Where conciliation has failed, or at the end of the 30-day period,
the commissioner must issue a certificate stating
whether or not the
dispute has been resolved.
[33]
[37]
It is evident from section 135(3) that
commissioners have three primary functions.  The first is to
attempt the resolution
of disputes.  Many disputes under the
Labour Relations Act are resolved through conciliation, which,
according to section 135(3)(a),
may take the form of mediation.
In conciliation, the commissioner in essence assumes the role
of a neutral mediator facilitating
a resolution of the dispute by
agreement between the parties.
[38]
The second function of commissioners is to
identify the nature of the dispute.  Rule 15 of the CCMA Rules
provides:
“
A
certificate issued in terms of section 135(5) that the dispute has or
has not been resolved, must identify the nature of the dispute
and
the parties as described in the referral document or as identified by
the commissioner during the conciliation proceedings.”
[39]
The third function is to
make a
recommendation to the parties, which may be in the form of an
advisory arbitration award.  In this way, commissioners
perform
a filtering function in the dispute resolution
machinery of the Labour Relations Act.  Commissioners must
certify, for
instance, whether a dispute is referred to strike
action, arbitration or the Labour Court.  These functions are
not merely
clerical and inevitably call for application of the mind,
discretion and some adjudication.
[40]
The
Labour Appeal Court based its decision on two grounds.  First,
with regard to the jurisdiction of the Labour Court, it
held that the
factual enquiry as to whether a dispute was conciliated can only be
determined “with reference to two aspects,
namely, the
characterisation of the dispute on the referral form and the contents
of the certificate of outcome”.
[34]
[41]
Secondly,
the Labour Appeal Court held that the Labour Court misdirected itself
by relying on inadmissible evidence relating to
what had transpired
during conciliation.
[35]
No authority was cited for this conclusion.  However, it can be
assumed that the Labour Appeal Court had rule 16 in
mind.  I
will revert to rule 16 later in this judgment.
[42]
The approach to be followed by a
commissioner in arbitration proceedings under section 138(1) of the
Labour Relations Act has been
explained in
CUSA
:
“
A
commissioner must, as the Labour Relations Act 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.”
[36]
(Footnote omitted.)
[43]
In
my view, the commissioner is not bound by a party’s
categorisation of the nature of the dispute.  Rule 15 clearly

intended the commissioner to have the right and power to investigate
and identify the true nature of the dispute.  The majority

judgment in
Driveline
categorically held that the parties are not bound by the
commissioner’s description of the dispute in the certificate of

outcome.
[37]
[44]
The
Labour Appeal Court adopted an overly formalistic approach as it held
that to answer the question whether the real dispute had
been
conciliated necessitates a very narrow factual enquiry which entails
only looking at two aspects, namely, “the characterisation
on
the referral form and the contents of the certificate of
outcome”.
[38]
The
Labour Appeal Court failed to take into account the purpose and
context of the Labour Relations Act and the
dispute
resolution mechanisms for which it provides.  By relying only on
the referral form and the certificate of outcome
the
Labour Appeal Court essentially held that no evidence from
the conciliation proceedings may be led as evidence in
subsequent
proceedings.
[45]
The
approach of the Labour Appeal Court is inconsistent with the
jurisprudence of this Court in that it has “cautioned against
a
narrowly textual and legalistic approach”.
[39]
The Labour Relations Act provides that it must be interpreted
“in compliance with the Constitution”
[40]
and in such a way as “to give effect to its primary objects”
which include giving effect to and regulating “the
fundamental
rights conferred by section 23 of the Constitution”
[41]
and “to promote the effective resolution of labour
disputes”.
[42]
By
employing a narrowly textual or legalistic approach the Labour Appeal
Court cannot be considered to have achieved these
objects, especially
as such an approach would not have led to the promotion of the
effective resolution of the true labour dispute
in this case.
[46]
As
already mentioned, the Labour Appeal Court placed reliance on
Driveline
and
Intervalve
.
[43]
It correctly held that both
Driveline
and
Intervalve
established that a dispute must be referred for conciliation in order
for the Labour Court to have jurisdiction.
[44]
The applicants accept this principle but contend that the true
dispute had been conciliated and as such the Labour Court
did have
jurisdiction.
[47]
In
Driveline
,
and pursuant to the employees’ retrenchment, a dispute was
referred for conciliation to the relevant bargaining council.

The council issued a certificate of outcome indicating that a dispute
concerning the alleged unfair termination of services (unfair

retrenchment) of the employees remained unresolved.  Later, the
union attempted to amend its statement of case to provide
that the
dismissal had been automatically unfair in terms of section 187(1)(c)
of the Labour Relations Act.  The
Labour Court held
that the parties were bound by the commissioner’s
characterisation of the dispute as one concerning the
alleged unfair
termination of services (unfair retrenchment) of the employees and
the union was not entitled to change the nature
of the dispute.
On appeal, the Labour Appeal Court held that the Labour Court’s
finding was incorrect.
[48]
Zondo AJP reasoned that it would be a
fallacy to regard the proposed amendment as introducing a new
dispute:
“
To
my mind, this approach is a result of a failure to appreciate the
nature of the dispute between the parties, the event giving
rise to
the dispute, and the cause of, or the event giving rise to, the
dispute and the grounds of each party's case to the dispute.”
[45]
He
further stated:
“
An
amendment of the appellants' statement of claim to the effect that
the dismissal is an automatically unfair dismissal will therefore
not
introduce a new dispute but will simply be an allegation of another
reason for dismissal or will be the reason relied upon
by the
appellants in the place of, or, as an alternative to, the reason of
operational requirements.  The dispute remains
the same dispute
that was referred for conciliation in terms of section 191(1) of the
Act, namely the dispute about the fairness
of the dismissal of the
second and further appellants.”
[46]
[49]
The
Court departed from the written words and held that the amendment
would only introduce an additional reason for dismissal rather
than a
new dispute.  In coming to this conclusion, it considered the
circumstances in which the dispute arose and how the
facts may cover
both “unfair retrenchment” as well as automatically
unfair dismissals, and held that they were both
reasons for the
dismissals which were not mutually exclusive.
[47]
According to Zondo AJP, to hold otherwise would be illogical
and “would render the dispute mechanisms of the Act
ineffective,
unworkable and nugatory”.
[48]
[50]
In
addition, the majority in
Driveline
held that it would be nonsensical to refer a matter back to
conciliation that had already been conciliated.
[49]
It did not simply rely on the wording and what was contained in
the referral form and the certificate of outcome.  In
the
instant matter, the Labour Appeal Court failed to take into account
that in
Driveline
,
the majority judgment held that the parties are not bound by the
categorisation of the dispute in the certificate of outcome.
[50]
The majority embraced a non-formalistic outcome by holding that
the referral of an ordinary unfair dismissal (unfair retrenchment)

dispute was sufficient to afford the Labour Court jurisdiction to
adjudicate an automatically unfair dismissal:
“
At
any rate, it matters not for purposes of jurisdiction whether at the
time of the conciliation of a dismissal dispute, the reason
alleged
for the dismissal was operational requirements or an automatically
unfair reason.  The dispute is about the fairness
of the
dismissal.  Therefore, provided the alleged reason is one
referred to in section 191(5)(b), the Labour Court will have

jurisdiction to adjudicate the real dispute between the parties
without any further statutory conciliation having to be undertaken
as
long as it is the same dismissal.”
[51]
[51]
The danger of adopting a formalistic
approach is evident in this matter.  This case involves
allegations of racism and unfair
labour practices.  It involves
applicants who were unable to receive legal advice and who did not
know the law.  They
trusted the procedures of the CCMA and its
officials.  The applicants allege that the true dispute,
automatically unfair constructive
dismissal, was brought to their
attention during the conciliation proceedings and that it was
thoroughly canvassed.
[52]
It would therefore be wrong to adopt the
Labour Appeal Court’s approach, which essentially precludes the
courts from referring
to evidence outside of the certificate of
outcome and referral form, to determine the nature of the dispute
conciliated.
The general rule is that the referral form and
certificate of outcome constitute prima facie evidence of the nature
of the dispute
conciliated.  However, if it is alleged that the
nature of the dispute is in fact different from that reflected on
such documents,
the parties may adduce evidence as to the nature of
the dispute.
[53]
The concept of constructive dismissal is
legalese and is generally foreign to non-lawyers.  It would be
expecting too much
of a non-lawyer who has her- or himself left
employment without a pronouncement by the employer that she or he was
being dismissed
to know that she or he had, in fact, been dismissed.
Flowing from this, to slavishly expect a non-lawyer to know –
in this context – what part of the form to fill in with what
information is to disregard reality.  To be more direct,
that
the applicants did not fill in that part of the form headed “unfair
dismissal” is quite understandable.
As non-lawyers who
had no legal assistance at the time, the applicants simply did not
know themselves to have been dismissed, whether
constructively or
otherwise.
[54]
Of importance, on a subject as technical as
constructive dismissal, it is clamant that where – during the
conciliation process
– it appears to a commissioner that the
true dispute may well involve this subject, she or he must actively
satisfy her-
or himself that it does or does not relate to this
subject.  If it does indeed relate to this subject, the
commissioner's
certificate must reflect the true position.  Even
if the certificate does not, it would be formalism of the highest
order
for courts to ignore substance.  Ultimately, the question
is whether – during the conciliation process – the
substance
of the dispute sought to be conciliated became apparent.
On the facts before us, I say it did.
[55]
The question that needs to be addressed on
this aspect of the case is whether there was compliance with section
191 of the Labour
Relations Act, before the matter was referred to
the Labour Court.  The question may be determined with reference
to the purpose
of a referral of a dispute to conciliation.  In
Intervalve
this Court declared:
“
The
purpose of
section
191
is
to ensure that, before parties to a dismissal or unfair labour
practice dispute resort to legal action, a prompt attempt is made
to
bring them together and resolve the issues between them.
Resolving the issues early has benefits not only for the parties,
who
avoid conflict and cost, but also for the broader public, which is
served by the productive outputs of peaceable employment

relationships.”
[52]
[56]
While it is true that the certificate of
non-resolution here describes the dispute that was conciliated as
“unfair discrimination”,
the uncontroverted evidence on
record establishes that the commissioner who convened the
conciliation meeting drew the parties’
attention to the fact
that the real dispute between them was a constructive dismissal.
It is this dispute which the parties
attempted to resolve but
resolution eluded them.  Consequently, the purpose of section
191 was achieved through the parties
attempt to resolve the
constructive dismissal dispute during conciliation.
[57]
The attainment of the provision’s
purpose in turn establishes compliance with the Labour Relations
Act.
Intervalve
outlines the test for compliance in these terms:
“
This
enquiry postulates an application of the injunction to the facts and
a resultant comparison between what the position is and
what,
according to the requirements of the injunction, it ought to be.
It is quite conceivable that a Court might hold that,
even though the
position as it is is not identical with what it ought to be, the
injunction has nevertheless been complied with.
In deciding
whether there has been a compliance with the injunction the object
sought to be achieved by the injunction and the
question of whether
this object has been achieved are of importance.”
[53]
[58]
What remains for consideration is whether
it is permissible to show compliance with section 191 by reference to
evidence on what
occurred during conciliation.  Although section
157(4)(b) stipulates that a certificate of non-resolution issued by a
commissioner
constitutes sufficient proof that an attempt has been
made to resolve the dispute, the Labour Relations Act does not
exclude other
means, including evidence on what happened at
conciliation.  In opposing consideration of such evidence in the
enquiry for
determining whether a constructive dismissal dispute was
discussed during conciliation, the respondent laid much store on rule
16 of the CCMA rules.
Rule 16 of the CCMA Rules
[59]
As
mentioned above,
[54]
the
Labour Appeal Court no doubt placed reliance on rule 16.  At the
time of the conciliation proceedings in this matter,
rule 16 of the
CCMA Rules was headed “Conciliation proceedings may not be
disclosed” and provided that:
“
(1)
Conciliation proceedings are private and confidential and are
conducted on a without prejudice
basis.  No person may refer to
anything said at conciliation proceedings during any subsequent
proceedings, unless the parties
agree in writing.
(2)
No person, including a commissioner, may be called as a witness
during any subsequent proceedings
in the Commission or in any court
to give evidence about what transpired during conciliation.”
[60]
The CCMA Rules were amended during 2015,
and rule 16 now reads:
“
(1)
Conciliation proceedings are private and confidential and are
conducted on a without prejudice
basis.  No person may refer to
anything said at conciliation proceedings during any subsequent
proceedings, unless the parties
agree in writing
or
as ordered otherwise by a court of law
.
(2)
No person, including a commissioner, may be called as a witness
during any subsequent proceedings
in the Commission or in any court
to give evidence about what transpired during conciliation
unless
as ordered by a court of law
.”
[61]
The amendment provides that a court of law
may order that evidence of what transpired during conciliation
proceedings be produced.
[62]
It is clear, from the terms of rule 16,
both pre- and post-amendment, that all communications of a without
prejudice nature, made
during conciliation proceedings, are
privileged and may not be disclosed in subsequent proceedings.
This privilege may be
waived by consent between both parties or, as
provided for in the amendment, by order of a court of law.  Documents
disclosed
during the course of conciliation proceedings, that are
otherwise privileged, retain their privilege in subsequent
proceedings,
unless otherwise agreed between the parties or if
ordered by a court of law.
[63]
In
exceptional circumstances, and subject to the discretion of the
arbitrator or the court, evidence as to the conduct of parties,

including the commissioner, or the content of any advice or views
expressed by the commissioner during conciliation, may be admissible,

if the interests of justice require the disclosure thereof in
subsequent proceedings.
[55]
[64]
The purpose of rule 16, both pre- and
post-amendment, is to create a safe harbour for parties who are
attempting to resolve a dispute.
Hence it prohibits disclosure
of offers, counter-offers and discussions.  The purpose of
conciliation is to achieve
the speedy resolution of disputes.  In
order to achieve this, rule 16 prohibits the disclosure of “anything
said at
conciliation proceedings” as to allow parties to be
able to speak openly and honestly without concern of something they
have
said being used against them at a later stage.
[65]
There is thus a general requirement of
non-disclosure.  This interpretation is in line with and
supported by the text and context
of the rule.  Furthermore, it
gives effect to its purpose which is to facilitate the settlement of
labour disputes at the
earliest available opportunity, without having
to resort to expensive and time consuming litigation.  It
does so by providing
for without prejudice discussions to take place
during conciliation, and to expressly record that these discussions
are privileged
in any further proceedings, thus encouraging parties
to speak freely, without apprehension that concessions or offers made
would
be used against them in subsequent proceedings if the matter
did not settle.
[66]
The rationale behind providing privilege
for statements made “without prejudice” is very similar,
if not the same, which
is that—
“
public
policy demands the parties to the disputes should be encouraged to
avoid litigation and all the expenses, delays, hostility
and
inconvenience that it usually entails, by resolving their differences
amicably in full and frank discussion without fear that,
if the
negotiations fail, any admissions made by them during these
discussions will be used against them in ensuing litigation”.
[56]
(Footnote omitted.)
[67]
Evidence as to the nature of the dispute
is, to my mind, not privileged.  This evidence does not relate
to the substance of
the proceedings and is merely descriptive.
There is nothing in the majority judgments in either
Driveline
or
Intervalve
which precludes approaching the question of what dispute was
conciliated and what was referred to the Labour Court for
adjudication
as a question of substance that requires substantive
adjudication.  In order to determine whether a matter referred
to the
Labour Court for adjudication had first been referred to
the CCMA for conciliation, the first point of reference is the
referral
documents.  However, if there is a dispute as to the
nature of the dispute referred to the CCMA then regard may be had to
evidence outside of these documents.
[68]
In
Premier
Foods
[57]
the applicant had applied to the Labour Court to review and set aside
an arbitration award made by the commissioner on the basis
of
misconduct by the latter in the conduct of conciliation/arbitration
proceedings in the CCMA.  During the course of the
proceedings,
the commissioner had expressed a strong adverse view of the merits to
one of the parties.  This had formed the
basis of a recusal
application when the proceedings commenced before the commissioner.
The commissioner refused to hear the
recusal application and
proceeded to arbitrate the dispute.  On review, the Labour Court
correctly considered the evidence
of what had transpired at
conciliation, and held that the conduct of the commissioner
constituted a material irregularity in the
conduct of the
proceedings.
[58]
The
conduct of the commissioner in
Premier
Foods
,
as in the matter under consideration, had nothing to do with the
rightful purpose of rule 16 which is to create a safe harbour
for
parties who are attempting to settle a dispute.
[69]
The concepts of negotiation privilege,
settlement privilege or privilege attached to statements made without
prejudice are well
established in our law.  Settlement privilege
provides:
“
Statements
are made expressly or impliedly without prejudice in the course of
bona fide negotiations for the settlement of a dispute
may not be
disclosed in evidence without the consent of both parties.”
[59]
Statements
or admissions made during the course of settlement negotiations, that
are unconnected to or irrelevant to the settlement
are not covered by
the rule.
[60]
[70]
There is no reason to surmise that the
Governing Body of the CCMA intended, by enacting rule 16, to extend
the common law privilege
attached to without prejudice settlement
negotiations.  Such an interpretation is not supported by the
context and purpose
of the rule.  The purpose of rule 16, to
promote frank discussion and early settlement of disputes, is
properly served by
the application of the common law rule of
settlement privilege.  The interpretation of rule 16, as
contended for by the respondent,
to impose a blanket ban on the
entirety of the content of conciliation proceedings, does not further
promote this purpose, or serve
any legitimate purpose.
[71]
There may have been concern about
determining the scope of the privilege under the rule with reference
to the common law, given
that conciliation involves lay people who
may not know the common law parameters on privilege.  And
without legal advice,
they could be inhibited from participating
freely in the discussions.  Since the rule has been amended,
parties involved in
conciliation would know that whatever is said
during conciliation proceedings may be disclosed in subsequent
proceedings with their
consent or if ordered by a court.  It is
assumed that such an order would be issued sparingly and where the
interests of justice
warrant disclosure.
What was before the
Labour Court?
[72]
It must have been apparent to all parties
at conciliation that the applicants’ employment with the
respondent had terminated
by the time conciliation was held on
1 October 2011.  It was common cause that they had withheld
their services from
the respondent since about 13 September 2011.
[73]
It is highly probable that the
commissioner, on learning that the applicants had “terminated”
their employment, would
seek clarity on the reason for termination,
and would, from the evidence, deduce that the reason was alleged
constructive dismissal,
due to discriminatory conduct against the
applicants.  It was not in dispute that the applicants had
referred a dispute to
the CCMA based on discriminatory conduct.
[74]
In their statement of case filed in the
Labour Court, the applicants stated that the referral to the Labour
Court was in terms of
sections 187 and 191 of the
Labour Relations Act.  As already mentioned, their
statement of material facts set out
in detail the racial
discrimination they were subjected to during the course of their
employment with the respondent.  They
alleged that this unfair
discrimination, primarily on the basis of their race, had led to
their decision to resign in circumstances
where their continued
employment had become intolerable.
[75]
The respondent opposed the application and
Mr Lewis, who had been present at the conciliation proceedings,
deposed to an opposing
affidavit on its behalf.  In the
affidavit, Mr Lewis stated that the applicants had absconded from
their employment and denied
all allegations of racial discrimination
on the part of the respondent.  He also alleged that the court
had no jurisdiction
to hear the matter.
[76]
The Labour Court judgment captures the
essence of the opposing affidavit:
“
[T]he
opposing affidavit avers that the allegations in the respondents’
statement of case are either ‘fabricated’,
‘denied’
or ‘untrue’.
. . .
Under the heading ‘legal
issues’, Lewis states that the respondents’ application
‘does not qualify with
section (187) of the Act or section
(186E) of the Act of the Labour Relations Act of 1995’
(sic).  This clearly
indicates that Lewis, who was present at
the conciliation, clearly understood the respondents’ claim to
be based on an automatically
unfair dismissal (section 187) and a
constructive dismissal (186(e)).
. . .
“
[T]he
opposing affidavits stand in stark contrast to the affidavit filed by
the applicant in support of this application.”
[61]
[77]
It is inconceivable that had the nature of
the dispute, as set out in the statement of claim, been at odds with
the dispute conciliated
that this issue would not have been raised in
the opposing affidavit by Mr Lewis, who had attended the
conciliation.  In the
absence of direct controverting evidence,
the evidence of the applicants to the effect that the true dispute,
automatically unfair
constructive dismissal caused by unfair
discrimination and racially discriminatory treatment, was conciliated
by the CCMA, should
have been accepted.  There is no explanation
for the inconsistency between the version of the applicants and the
certificate
of outcome.  Once the version of the applicants is
accepted, the conclusion must inevitably be that the Labour Court had
jurisdiction
to entertain the matter.  It follows that the
decision of the Labour Appeal Court must be overturned.
[78]
On the application papers, the Labour Court
correctly held that what was conciliated involved an allegation that
the applicants
had been dismissed.  The evidence to support a
finding as to the nature of the dispute conciliated was not
inadmissible.
The respondent had not made out a case for
rescission.  For these reasons, I am of the view that default
judgment was properly
granted.
Order
[79]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Labour Appeal Court is set aside and substituted
with:
“
The
appeal is dismissed”.
4.
There is no order as to costs.
ZONDO
DCJ
Introduction
[80]
I have read the judgment prepared by my Colleague, Theron J (first
judgment).  It
grants leave to appeal and concludes that the
Labour Court had jurisdiction to adjudicate the alleged constructive
dismissal dispute
or an automatically unfair dismissal dispute that
the applicants referred to the Labour Court for adjudication.
It, accordingly,
upholds the appeal against the decision of the
Labour Appeal Court, sets it aside and in effect restores the
decision of the Labour
Court in terms of which that Court dismissed
the respondent’s (CMI’s) rescission application.
[81]
I am unable to agree with the conclusion and outcome of the first
judgment.  In my
view, the Labour Court did not have
jurisdiction and the Labour Appeal Court’s decision was correct
and in accordance with
established precedent.  Accordingly, the
appeal should be dismissed.  I set out the reasons for this
conclusion.
[82]
If we grant the applicants leave to appeal, the issue that this Court
will be called upon
to decide in the appeal is whether the Labour
Court was correct in dismissing CMI’s rescission application.
The answer
to that question will depend upon whether the Labour Court
had jurisdiction to adjudicate a constructive dismissal dispute or an

automatically unfair dismissal dispute that the applicants had
referred to the Court for adjudication in respect of which the
Labour Court awarded them certain amounts of compensation in a
default judgment.  This is so because the basis upon which
CMI
sought the rescission of the Labour Court’s default judgment
against it was that the Labour Court did not have jurisdiction
to
adjudicate an alleged constructive dismissal dispute or an
automatically unfair dismissal dispute.  If the Labour Court
did
not have jurisdiction, it erroneously granted the default judgment
and that judgment should have been rescinded.  If,
however, the
Labour Court did have jurisdiction, then the default judgment was
correctly granted and should not be rescinded.
Background
[83]
It is not necessary to set out the full background to this matter as
the only issue is
whether the Labour Court had jurisdiction to
adjudicate the alleged constructive dismissal dispute or
automatically unfair dismissal
dispute which the applicants referred
to the Labour Court for adjudication.  It is only necessary to
refer to those facts
that are relevant to the question whether the
Labour Court had jurisdiction.
[84]
The applicants were employed by the respondent in 2009.  They
allege that during their
period of employment by the respondent, they
were subjected by the respondent or its representatives to various
acts of unfair
discrimination based on their race or colour.
They allege in their statement of case in the Labour Court that on
13 September
2011 they resigned from CMI’s employ because
the acts of unfair discrimination based on their race or colour had
become intolerable.
The respondent CMI disputes the allegation
that the applicants resigned or informed it that they were
resigning.  It says
that they absconded from its employ.
It also disputes that the applicants were subjected to acts of unfair
discrimination
based on their race.
Referral of dispute to
conciliation
[85]
On 19 September 2011 the applicants referred a certain dispute to the
Commission for Conciliation,
Mediation and Arbitration (CCMA) for
conciliation.  They described the dispute that they were
referring to the CCMA as being
“unfair discrimination S10 of
the Employment Equity Act.”  This was done in paragraph 3
of the referral document.
Paragraph 3 had a list of various
disputes from which the applicants had to choose the dispute that
they were referring to the
CCMA for conciliation.  The other
disputes in the list included those described as “unfair
dismissal”, “refusal
to bargain”, and “unfair
labour practice”.  Paragraph 3 of the referral document
required the applicants
to indicate “the nature of the
dispute”.  They were required to do this by way of a
tick.  They ticked the
dispute described as “unfair
discrimination S10 of the Employment Equity Act”.  They
did not tick the dispute
described as “unfair dismissal”.
In the referral document there was also a blank space provided which
the applicants
could use to describe the nature of their dispute if
their dispute was not one of those listed in that paragraph.
The applicants
did not use that space.
[86]
In another section of the referral document the applicants were
required to “summarise”
the facts of the dispute they
were referring to conciliation.  They summarised the facts of
their dispute as “racial
discrimination, verbal abuse”.
They did not mention any dismissal nor did they say that they had
resigned.  They
also did not mention the phrase “constructive
dismissal”.
[87]
In yet another section of the referral document, the applicants were
required to specify
the outcome they wanted out of the referral of
the dispute to the conciliation process.  They gave their
desired outcome as
being: “[e]mployer to stop discriminating
us”.  They did not mention the outcomes that dismissed
employees normally
demand or ask for, namely, “reinstatement”
or “compensation for unfair dismissal” or “compensation

for constructive dismissal”.  It is difficult to
understand why the applicants said that the outcome they wanted was

that the employer should “stop discriminating us” if they
had left CMI’s employ with no intention of returning.
I
say this because, on their version, the applicants say that they
resigned on 13 September 2011.  They completed the
referral
document on 19 September 2011.
[88]
The outcome that the applicants asked for is consistent with people
who had not resigned
from CMI when they completed the referral
document.  How could CMI stop “discriminating”
against them if they
were no longer in its employ?  That the
applicants said that this was the outcome they wanted out of the
referral of the dispute
to the conciliation process is consistent
with CMI’s version that they did not resign and is inconsistent
with their version
that they had resigned on 13 September 2011.
[89]
Finally, the referral document had Part B.  Part B was written
in big words; “UNFAIR
DISMISSAL DISPUTES
ONLY”
.
Part B in the referral document is for unfair dismissal disputes.
It is the section to be filled in if the dispute
is one concerning an
unfair dismissal.  The applicants did not complete this part of
the referral document and it is not included
in the record before
us.  On 14 September 2011 the applicants had referred
another dispute to the CCMA for conciliation.
The referral
document they signed was the same as the one they completed on 19
September 2011.  That referral document
is part of the
record before us.  In that referral document the applicants
ticked an “unfair labour practice”
dispute as opposed to
an unfair dismissal dispute or an unfair discrimination dispute as
the dispute they were referring to the
CCMA.  When they came to
Part B of the referral document, the applicants made two lines across
the page and wrote the word
“cancelled” between the two
lines.
[90]
The applicants must have seen Part B of the referral document which
deals with dismissal
disputes but chose not to complete that part of
the referral document.  If the applicants had intended to refer
to the CCMA
for conciliation a dismissal dispute, there is no way
that they would not have completed that section of the referral
document.
It seems to me that the reason why the applicants did
not complete this section of the referral document is that the
dispute that
they were referring to the conciliation process did not
involve dismissal and was not constructive dismissal.
[91]
After the CCMA had received the referral document in respect of the
dispute for conciliation
– that is the referral document in
which the applicants ticked the dispute of “unfair
discrimination S10 Employment
Equity Act” as their dispute –
it convened a conciliation meeting of the parties.  That meeting
was called so
that a commissioner would have a conciliation meeting
with the parties to try and have the dispute referred to the CCMA
resolved.
According to the applicants, at that meeting there
was some discussion of an alleged constructive dismissal dispute.
[92]
The parties
were not able to resolve the dispute.  As required by the LRA,
the commissioner completed a certificate of outcome
indicating that
the dispute remained unresolved.  To indicate what the dispute
was that remained unresolved, the commissioner
wrote on the
certificate of outcome that the dispute was “unfair discrimination”.
That reference by the
commissioner to an unfair discrimination
dispute was a reference to the dispute of an “unfair
discrimination S 10 Employment
Equity Act” which the
applicants had ticked in the referral document.  If I am right
in this, as I think I must be,
then it is clear that the commissioner
himself says that the dispute that he conciliated is the same dispute
that was referred
to the CCMA by the applicants and that dispute is
one that excludes any dismissal dispute by virtue of section
10(1)
[62]
of the Employment Equity Act.
Referral of dispute to
the Labour Court and default judgment
[93]
Subsequent
to the issuing of the certificate of outcome by the commissioner, the
applicants referred to the Labour Court for adjudication
an alleged
dispute of constructive dismissal and/or an automatically unfair
dismissal dispute by delivering to the Registrar of
the Labour Court
and serving on CMI a statement of claim.  CMI delivered its
response but failed to take one or other step
required by the Rules
of the Labour Court.  For that reason the applicants applied to
the Labour Court for, and, were granted,
default judgment.
[63]
[94]
The Labour
Court dealt with the matter on the basis that the dispute before it
was one concerning constructive dismissal.
However, elsewhere
in its judgment the Labour Court also dealt with the matter on the
basis that the dispute was an automatically
unfair dismissal
dispute.
[64]
Indeed, the relief it granted was one that it could only grant if it
had concluded that the applicants had been dismissed
and the
dismissal was automatically unfair.  The Labour Court granted
the applicants compensation equivalent to 24 months’

remuneration.
CMI’s rescission
application in the Labour Court
[95]
CMI later brought in the Labour Court an application for the
rescission of the default
judgment.  The applicants opposed the
application.  CMI’s case in the rescission application was
that the Labour
Court had erroneously granted the default judgment
because it did not have jurisdiction in respect of the alleged
dispute of constructive
dismissal or an automatically unfair
dismissal dispute.  It argued that this was so because the
applicants had not referred
any such dispute to the conciliation
process.  The applicants contended that the Labour Court had not
erroneously granted
the default judgment because it had jurisdiction
in respect of the constructive dismissal dispute or the automatically
unfair dismissal
dispute.  The applicants based this contention
on their version that constructive dismissal had been discussed at
the conciliation
meeting.  It was implied in their contention
that, as long as a dispute had been discussed at the conciliation
meeting, the
Labour Court would have jurisdiction, even if the
dispute had not been referred to the conciliation process.  CMI
insisted
that a dispute was required to have been referred to
conciliation before the Labour Court could have jurisdiction.
[96]
It seems to have been accepted by both parties that if, indeed, the
Labour Court had granted
the default judgment erroneously, CMI was
entitled to a rescission order but, if the Labour Court had not
granted the default judgment
erroneously, the rescission application
would fall to be dismissed.  The Labour Court held that it had
jurisdiction in respect
of the alleged dispute of constructive
dismissal or dispute concerning an automatically unfair dismissal.
It, accordingly,
held that it had not erroneously granted the default
judgment.  It, therefore, dismissed the rescission application.
[97]
In a subsequent appeal, the Labour Appeal Court took a different view
on the issue.
Relying on its previous decision in
Driveline
,
the Labour Appeal Court held that, if a dismissal dispute had not
been referred to a conciliation process, the Labour Court

would not have jurisdiction.  It, therefore, upheld CMI’s
appeal and set aside the decision of the Labour Court.
[98]
The applicants now apply to this Court for leave to appeal against
the decision of the
Labour Appeal Court.
Jurisdiction
[99]
This Court has jurisdiction in respect of this matter because the
matter raises the interpretation
and application of the
Labour
Relations Act which
is a statute enacted to give effect to section 23
of the Constitution.  That is a constitutional issue.  The
question
is whether or not the Labour Court had jurisdiction to
adjudicate a constructive dismissal dispute or a dispute concerning
an allegedly
automatically unfair dismissal if that dispute had not
been referred to the conciliation process.
Leave to appeal
[100]
This Court grants leave to appeal if it is in the interests of
justice to grant leave.  It considers
a number of factors in
this regard.  The question is whether the Labour Court had
jurisdiction to grant the default judgment
in this case if the
dispute had not been referred to conciliation.  The question of
whether the Labour Court had jurisdiction
depends upon the
interpretation and application of various provisions of the LRA and
the Employment Equity Act.  This is an
important matter.
It goes beyond the parties to the present proceedings.  Since
the Labour Court and Labour Appeal
Court gave conflicting
judgments, there are reasonable prospects of success.  It is in
the interests of justice to grant leave
to appeal.
The appeal
[101]
The broad question before us is whether the Labour Appeal Court was
right in concluding that the Labour
Court did not have jurisdiction
to adjudicate a constructive dismissal dispute or an automatically
unfair dismissal dispute.
If the Labour Appeal Court
was right, the appeal must be dismissed.  If it was wrong, the
appeal must be upheld.
The basis for CMI’s contention
that the Labour Court did not have jurisdiction was that the
applicants had not referred any
dismissal dispute to the CCMA for
conciliation and that, therefore, whether one is talking about a
constructive dismissal dispute
or an automatically unfair dismissal
dispute, it makes no difference.
[102]
The applicants’ basis for their contention that the Labour
Court did have jurisdiction was that they
said that the constructive
dismissal was discussed at the conciliation meeting.  I propose
to deal first with the question
whether the Labour Court had
jurisdiction to adjudicate an alleged constructive dismissal
dispute.  The term “constructive
dismissal” does not
appear anywhere in the LRA but it means the termination of a contract
of employment by an employee (as
opposed to the employer) owing to
the fact that the employer has made continued employment
intolerable.  The term “constructive
dismissal” is
used in labour law to refer to what is contemplated in section 186(e)
of the LRA.  That provision reads:
“‘
Dismissal’
means that –
(e)
an employee terminated a contract of employment with or without
notice because the employer
made continued employment intolerable for
the employee.”
[103]
The applicants say that they resigned from CMI’s employ on
13 September 2011.  Section
191(5) of the LRA provides
that, if a constructive dismissal dispute has been referred to
conciliation and either a certificate
that the dispute remains
unresolved has been issued or 30 days has lapsed from the date when
the CCMA received the referral, whichever
occurs first, the dispute
must be arbitrated by the CCMA or by the bargaining council.
Section 191(5)(a)(ii) reads:
“
(5)
If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days
have expired since the council or the
Commission received the referral and the dispute remains unresolved—
(a)
the council or the Commission must arbitrate the dispute at the
request
of the employee if—
(ii)
The employee has alleged that the reason for dismissal is that the
employer made
continued employment intolerable.”
[104]
The Labour Court has no jurisdiction to adjudicate such a
constructive dismissal dispute even if that dispute
was referred to
conciliation.  That is because section 157(5) of the LRA
provides that the Labour Court has no jurisdiction
to adjudicate a
dispute which in terms of the LRA is required to be arbitrated.
Section 157(5) reads:
“
Except as provided
for in section 158(2), the Labour Court does not have jurisdiction to
adjudicate an unresolved dispute if this
Act or any employment law
requires the dispute to be resolved through arbitration.”
Section
158(2) reads:
“
If at any stage
after a dispute has been referred to the Labour Court, it becomes
apparent that the dispute ought to have been referred
to arbitration,
the Court may—
(a)
stay the proceedings and refer the dispute to arbitration; or
(b)
if it is expedient to do so, continue with the proceedings, in which
case the Court may
only make any order that a commissioner or
arbitrator would have been entitled to make: Provided that in
relation to the question
of costs, the provisions of section
162(2)(a) are applicable.”
[105]
In dealing with the default judgment, the Labour Court did not
purport to exercise any power in terms of
section 158(2).  In
any event, section 158(2) cannot be resorted to in the case of a
dispute that was not referred to conciliation.
It is only
available in respect of a dispute that was referred to conciliation
and either the commissioner issued a certificate
that the dispute
remained unresolved or a period of 30 days expired after the dispute
had been received by the CCMA.
[106]
Given all the above, there can be no doubt that, in so far as the
applicants contend that the dispute that
they referred to the Labour
Court for adjudication was a constructive dismissal dispute, the
Labour Court simply had no jurisdiction
in respect of that dispute
even if that dispute had been referred to conciliation.
Accordingly, the Labour Court erroneously
granted the default
judgment in a matter in respect of which it had no jurisdiction.
This disposes of the appeal in so far
as the applicants rely upon a
constructive dismissal dispute.  Therefore, to the extent that
the applicants relied upon a
constructive dismissal dispute, the
appeal falls to be dismissed.
[107]
I now proceed to deal with the appeal in so far as the applicants
contend that the dispute that they referred
to the Labour Court for
adjudication was a dispute concerning an automatically unfair
dismissal.  What I say below in regard
to an alleged
automatically unfair dismissal dispute will apply to a constructive
dismissal dispute to the extent that it may be
argued that the Labour
Court may be asked to deal with the matter by virtue of the first
part of section 158(2) of the LRA.
In other words, if the
constructive dismissal dispute was not referred to conciliation, the
Labour Court would have no jurisdiction
even under section 158(2).
Is the referral to
conciliation of a dismissal dispute a jurisdictional prerequisite for
the jurisdiction of the Labour Court?
[108]
With regard to a dispute about an automatically unfair dismissal, the
Labour Court would have jurisdiction
in respect of such a
dispute if that dispute had been referred to the CCMA or relevant
bargaining council for conciliation and
one of two events had
happened.  The one event would be if the commissioner had issued
a certificate to the effect that the
dispute remained unresolved or
if 30 days had expired from the date of receipt of the referral by
the CCMA or bargaining council.
[109]
The question that arises, therefore, is whether the referral of a
dismissal dispute, including an automatically
unfair dismissal, to
conciliation is a jurisdictional requirement before the Labour Court
may have jurisdiction to adjudicate such
a dispute.  The answer
to this question is in the affirmative.  As the Labour Appeal
Court pointed out in
Driveline
, referring an unfair dismissal
dispute to the conciliation process without labelling the dismissal
as an automatically unfair dismissal
would not mean that the Labour
Court would not have jurisdiction to adjudicate an automatically
unfair dismissal dispute.
All that would be required would be
for an appropriate amendment to be made to the statement of claim to
the effect that the dismissal
was automatically unfair.  That is
if an unfair dismissal dispute had been referred to the conciliation
process but such an
amendment would not help an applicant if no
unfair dismissal dispute had been referred to the conciliation
process.  That
is because it would be a different dispute
altogether from the one that was referred to the conciliation
process.  In the
present case the applicants did not by any
stretch of the imagination refer a dismissal dispute of any
description whatsoever to
the conciliation process.  If they had
referred to the conciliation process some dismissal dispute, they
would have been able
to amend their statement of claim appropriately
to allege or contend that the dismissal was automatically unfair.
In which
case the Labour Court would have had jurisdiction.
[110]
The Labour
Court has no jurisdiction to adjudicate a dismissal dispute if that
dispute has not first been referred to conciliation.
That this
is the legal position has been made plain by not only the Labour
Appeal Court but also by this Court.  In this regard
it is to be
noted that the first judgment relies heavily on the Labour Appeal
Court’s judgment in
Driveline
[65]
for the position that it adopts.  However, the first judgment
omits to refer to various parts of the majority judgment in
Driveline
which upheld the position that the Labour Court had no jurisdiction
to adjudicate a dismissal dispute that has not been referred
to
conciliation.
[111]
In the above connection a reference to two or three areas in the
majority judgment in
Driveline
should suffice to make this
point clear.  In
Driveline
the majority said:
“
The Act requires
some disputes to be referred to arbitration, and others, to
adjudication, if conciliation fails (see section 191(5)).
Whether
a dispute will end up in
arbitration or
adjudication
it must first have been referred to conciliation before it can be
arbitrated or adjudicated
.”
[66]
Later
on, the majority in
Driveline
said:
“
To me it is as
clear as daylight that the wording of section 191(5) imposes the
referral of a dismissal dispute to conciliation
as a precondition
before such a dispute can either be arbitrated or be referred to the
Labour Court for adjudication.  I cannot
see what clearer
language the Legislature could have used other than the language it
chose to use in section 191(5) if it had intended
that the referral
of a dismissal dispute to conciliation should be a precondition to
such dispute being arbitrated or being referred
to the Labour Court
for adjudication
.”
[67]
[112]
Finally, the Labour Appeal Court also had this to say in
Driveline
:
“
It will have
been realised that section 191(5) envisages that one of two events
must have occurred or taken place before a dispute
can be the subject
of an arbitration or before an employee can acquire the right to
refer a dismissal dispute to the Labour
Court
for adjudication.  The one event is that of a council or a
commissioner having certified that the dispute remains unresolved.

The second event is that of a period of 30 days having expired since
the referral was received by the council or the commission.”
[68]
It
is also necessary to point out that in
Driveline
the question
whether or not the referral of a dispute to the CCMA or a bargaining
council for conciliation was a jurisdictional
requirement for the
Labour Court was the main issue for determination by the Court.
Accordingly, the Labour Appeal Court’s
pronouncement as
reflected in the passages quoted above was not a pronouncement made
in passing.  Those are statements which
the Labour Appeal Court
made to decide an issue that was squarely before it.
[113]
The first judgment implies that the referral of a dismissal dispute
to a conciliation process is not a precondition
that must be
satisfied before the Labour Court may have jurisdiction in
respect of a dispute.  For this the first
judgment seeks to rely
on
Driveline
to support that position.
Driveline
does not support that position.  That is the position that was
taken by the minority in
Driveline
which was rejected by the
majority.
[114]
In
Intervalve
[69]
four judgments were written by different members of this Court.
They were the main judgment, concurrence and two dissents.
The
main judgment and the concurrence were majority judgments.  Both
the main judgment, by Cameron J, and the concurrence,
upheld the
legal position articulated by the Labour Appeal Court in
Driveline
as reflected in the passages quoted above.  The main judgment
and the concurrence were both majority judgments.  The
main
judgment said:
“
[31]
On the point crucial to this case, the majority [in
Driveline
]
firmly rejected the proposition that the Labour Court has
jurisdiction to adjudicate a dispute not referred to conciliation at
all
.  It said that it was—
‘
as clear as
daylight that the wording of section 191(5) imposes the referral of a
dismissal dispute to conciliation before such
dispute can either be
arbitrated or referred to the Labour Court for adjudication.’
[32]
The reasoning of the
Driveline
majority is, in my view, convincing.  Section 191(5)
stipulates one of two preconditions before the dispute can be
referred
to the Labour Court for adjudication: there must be a
certificate of non-resolution, or 30 days must have passed.
If
neither condition is fulfilled, the statute provides no avenue
through which the employee may bring the dispute to the Labour Court

for adjudication.  As Zondo J shows in his judgment, with which
I concur, this requirement has been deeply rooted in South
African
labour-law history for nearly a century.
We
should not tamper with it now
.”
[70]
Later,
it was said in the main judgment:
“
Referral for
conciliation is indispensable.  It is a precondition to the
Labour Court’s jurisdiction over unfair dismissal
disputes.
NUMSA therefore had to refer the dispute between the employees and
Intervalve and BHR for conciliation
.”
[71]
[115]
The concurrence in
Intervalve
was to the same effect as what
the main judgment held as reflected in the passages quoted above.
In the concurrence, this
Court said in part:
“
[107]
The next question is whether the dismissal disputes involving
Intervalve and BHR could be adjudicated by the Labour
Court
notwithstanding that they had not been referred to conciliation.
[108]
The main judgment holds that the Labour Court has no jurisdiction to
adjudicate the Intervalve dismissal dispute
and the BHR dismissal
dispute as these disputes were never referred to conciliation.
This is right.
The
Labour
Court
does not even have a discretion to adjudicate a dismissal dispute
that has not been referred to conciliation
.”
[72]
[116]
The fact that a dismissal dispute may have been discussed at a
conciliation meeting called for a different
dispute is of no legal
significance in the determination of whether or not the Labour Court
had jurisdiction to adjudicate the
dismissal dispute or an
automatically unfair dismissal dispute.  I make this point
because both the applicants, in their papers,
and, the majority, in
the first judgment, suggest that, even if the constructive dismissal
dispute was not referred to conciliation,
the Labour Court would have
jurisdiction if, at the conciliation meeting, the constructive
dismissal dispute was discussed.
The proposition that the
Labour Court will have jurisdiction to adjudicate a dismissal dispute
as long as the dispute was discussed
at a conciliation meeting even
if it was not referred to the conciliation process is not based upon
any provisions of the LRA.
Indeed, even the first judgment does
not identify any provision in the LRA which supports the proposition
that the Labour Court
has jurisdiction to adjudicate a dispute that
was not referred to conciliation but one that was discussed at
conciliation.
[117]
On the contrary, there are provisions in the LRA which make it clear
that the dispute that a commissioner
must conciliate must be a
dispute that was referred to conciliation.  In other words, a
commissioner may not conciliate a
dispute that has not been referred
to conciliation.  Sections 115(1), 133(1) and 135(1) of the LRA
make this crystal clear.
Section 115 reads:
“
(1)
The Commission must—
(a)
attempt to resolve, through conciliation, any dispute referred to
it in
terms of this Act;
(b)
if a dispute that has been referred to it remains unresolved after
conciliation,
arbitrate the
dispute
if—
(i)
this Act
requires arbitration and any party to the
dispute
has
requested that the
dispute
be resolved through arbitration.”
Section
133(1) reads:
“
(1)
The Commission must appoint a commissioner to attempt to resolve
through conciliation—
(a)
any dispute referred to it in terms of section 134
; and
(b)
any other dispute that has been referred to it in terms of this
Act
.”
Section
135(1) reads
“
(1)
When a dispute has been referred to the Commission, the Commission
must appoint a commissioner to attempt to resolve it through
conciliation
.”
These
provisions make it plain that the dispute which a commissioner of the
CCMA is authorised to conciliate is a dispute that has
been referred
to the CCMA for conciliation.  These provisions mean that the
proposition made in the first judgment that the
Labour Court has
jurisdiction in respect of a dispute that was not referred to
conciliation provided that such a dispute was discussed
at a
conciliation meeting convened to discuss another dispute is contrary
to clear statutory provisions.
[118]
Provisions that make it a requirement that a dispute must be referred
to conciliation before it can be referred
to the Labour Court for
adjudication are not confined to the LRA.  In other labour
statutes, too, similar provisions are to
be found.  Section 52
of the Employment Equity Act deals with the procedure for disputes
about the interpretation and application
of Part C of Chapter V.
Section 52(2) provides:
“
(2)
The CCMA
must attempt to resolve a dispute referred to it in terms
of this Part through conciliation.”
Section
19 of the Skills Development Act has the heading: “Disputes
about learnerships.”  Section 19(2) of that
Act confers
upon any party to a dispute referred to in that provision the right
to refer such a dispute to the CCMA for conciliation.
Then
section 19(5) provides that “[i]f the dispute remains
unresolved, any party may request that the dispute be resolved

through arbitration as soon as possible.”  The dispute
referred to in subsection (5) is a dispute about learnerships.

Similar provisions are to be found in section 80(1) and (4) of the
Basic Conditions of Employment Act.
[73]
[119]
From the
passages quoted above from the main judgment and the concurrence in
Intervalve
,
there can be no doubt that this Court has made it clear that the
Labour Court has no jurisdiction to adjudicate a dismissal

dispute that has not been referred to conciliation.  In fact,
referring to this principle, this Court went a step further
in
Intervalve
and said in the main judgment: “we should not tamper with it
now”.  As this Court said in
Intervalve
,
it is a well-settled principle that has been part of the dispute
resolution system in labour legislation in this country since
at
least 1924.
[74]
How to determine
whether a certain dispute was referred to conciliation
[120]
The next question that arises is how a court determines whether a
particular dispute was referred to conciliation
in circumstances
where there was some referral of a dispute to conciliation.  In
Intervalve
this Court had this to say in the concurrence about
how to determine whether a certain dispute has been referred to
conciliation:
“
Once it is
accepted that the dismissal of the employees who took part in the
strike on 14 April 2010 could have given rise to multiple
dismissal
disputes, the next enquiry is to determine whether the referral of 20
April 2010 was limited to the dismissal dispute
between the union and
Steinmuller or whether it included the dismissal disputes between the
union and Intervalve as well as the
dismissal dispute between the
union and BHR.  How does one determine this?
The
only way to determine this lies in examining and construing the
contents of the referrals documents”.
[75]
This
means that this Court articulated the approach for determining
whether a particular dispute was referred to conciliation or
not.
It is the examination and construction of the contents of the
referral documents.  This is correct.  It cannot
be any
other way because, when a person refers a dispute to the CCMA or to a
bargaining council for conciliation, it is in the
referral
document(s) that he or she articulates what the dispute is that he or
she is referring to the conciliation process.
Therefore, one
cannot look elsewhere for a place where that person would have
articulated what the dispute is that he or she is
referring to
conciliation.
[121]
In
Intervalve
this Court also dealt in the main judgment with the question of how
to determine whether or not a particular dispute was referred
to
conciliation in a case where there is or was a referral of some
dispute to conciliation.  To determine whether the dismissal

dispute between Intervalve and its former employees and whether the
dismissal dispute between BHR and its former employees had
been
referred to conciliation by way of the first referral i.e. the
referral of 20 August 2010, in its main judgment this Court

formulated the question to be asked as being whether it can be
concluded from the facts that the referral of 20 August 2010
“encompassed”
those disputes.
[76]
This Court put it thus:
“
But can we
conclude from these facts that the Steinmuller conciliation referral
encompassed also Intervalve and BHR?”
[77]
[122]
Later in
the main judgment in
Intervalve
this Court formulated the question as being whether the Steinmuller
conciliation referral “embraced”
[78]
the dismissal dispute involving Intervalve and the dismissal dispute
involving BHR.  Therefore, the question could be formulated
as
being whether the referral document in question can be said to have
“encompassed” or “embraced” the
dismissal
dispute in issue.  If it can be said that the referral document
concerned did encompass or embrace the dispute in
question, then the
dispute was referred to conciliation.  If, however, it cannot be
said that the referral document concerned
“encompassed”
or “embraced” the dispute in question, the dispute cannot
be said to have been referred to
conciliation.  The result would
be that the Labour Court had no jurisdiction to adjudicate the
dispute.
Did the referral of
the dispute concerning “unfair discrimination S10 of the
Employment Equity Act” to conciliation
“encompass”
or “embrace” the constructive dismissal dispute or any
dismissal dispute?
[123]
The only referral document on the basis of which this case has been
dealt with by all the courts below is
the one in which the applicants
ticked in paragraph 3 thereof a dispute described as “unfair
discrimination S 10 of the Employment
Equity Act” as the
dispute that they were referring to conciliation.  That is the
referral document where, when they
were required to give a summary of
the facts of the dispute, they wrote: “racial discrimination,
verbal abuse”.
[124]
When, in the referral document, the applicants were required to give
the outcome they desired out of the
referral of the dispute to
conciliation, they wrote: “The employer to stop discriminating
us”.  That referral
document reveals that the dispute that
the applicants were referring to conciliation was a dispute of unfair
discrimination as
contemplated in section 10 of the Employment Equity
Act.  That is why the box which the applicants ticked in the
referral
document has an express reference to section 10 of the
Employment Equity Act.  An unfair discrimination dispute
contemplated
in section 10 of the Employment Equity Act cannot, as a
matter of law, encompass or embrace an unfair dismissal dispute that
must
be referred to the relevant body in terms of section 191 of the
LRA.  This is so because section 10(1) provides:
“
(1)
In this section, the word ‘dispute’ excludes a dispute
about an unfair dismissal,
which must be referred to the appropriate
body for conciliation and arbitration or adjudication in terms of
Chapter VIII of the
Labour  Relations Act.”
[125
]
Given the express exclusion of a dismissal dispute from a dispute
under
section 10(1)
, this Court cannot hold that the unfair
discrimination dispute ticked by the applicants in the referral
document encompassed or
embraced a dispute concerning a constructive
dismissal or an automatically unfair dismissal.  Therefore, we
are forced to
hold that no dismissal dispute of any kind was referred
to the CCMA for conciliation by means of the referral document that
related
to the dispute about unfair discrimination.  To hold
otherwise will be to make a decision that is contrary to a statute.

We are, therefore, constrained to conclude that the Labour Court did
not have jurisdiction to adjudicate a constructive dismissal
dispute
or any dismissal dispute in this case.  Therefore, the Labour
Court erred in adjudicating the alleged constructive
dismissal
dispute or an automatically unfair dismissal dispute.  This
means that the default judgment was erroneously granted
by the Labour
Court.  Accordingly, CMI’s rescission application in the
Labour Court should have succeeded.  The
Labour Appeal Court was
right in upholding CMI’s appeal and in setting aside the
default judgment granted by the Labour Court.
[126]
The first judgment concludes that, by way of the referral document to
which I have referred, the dispute
which the applicants referred to
the CCMA for conciliation was a constructive dismissal dispute.
Of course, the dispute that
the applicants ticked in that referral
document as the dispute that they were referring to conciliation is a
dispute described
as “unfair discrimination S10 of the
Employment Equity Act” and not one described as “unfair
dismissal”
or “constructive dismissal” or described
in any terms that involved “dismissal” or “resignation.”

I have said above that the express reference to “S10 of the
Employment Equity Act” in the description of the dispute
they
ticked as the dispute that they were referring to the conciliation
process means that the unfair discrimination dispute was
the unfair
discrimination dispute contemplated in section 10 of the Employment
Equity Act.
[127]
Once one accepts that that dispute was a dispute falling under
section 10 of the Employment Equity Act,
then one is immediately
confronted by section 10(1) which excludes a dismissal dispute from
the disputes contemplated in section
10.  The exclusion of a
dismissal dispute from a dispute under section 10 stands in one’s
way if one wants to say that
the unfair discrimination dispute that
the applicants ticked included or encompassed or embraced a
constructive dismissal dispute
or any dismissal dispute.  The
first judgment says in effect that the unfair discrimination dispute
that the applicants ticked
was a constructive dismissal dispute
without explaining how it overcomes the exclusion in section 10(1).
[128]
If this Court is to find against CMI on the basis that the dispute
ticked in the referral document encompassed
or embraced or, was, a
constructive dismissal dispute despite the fact that it expressly
described the dispute as a dispute under
section 10 of the Employment
Equity Act, then, in all fairness, CMI would need to know how this
Court overcame the hurdle of the
exclusion of a dismissal dispute in
section 10(1).  In this regard, it must be remembered that the
applicants have not themselves
explained how they overcame this
hurdle despite the fact that its lawyers would have checked what
section 10 says because the description
of the dispute in the
referral document expressly refers to that section.  Nor does
the first judgment.  The applicants’
answering affidavit
in the rescission application in the Labour Court was deposed to by
their attorney and he did not provide any
explanation.
[129]
Even apart
from the exclusion of a dismissal dispute by section 10(1) from a
dispute contemplated in section 10, there is nothing
in the contents
of the referral document on the basis of which it can be concluded
that the referral document in issue encompassed
or embraced a
constructive dismissal dispute or any dismissal dispute for that
matter.  On the contrary, most, if not all,
of the information
written by the applicants in the referral document is inconsistent
with any suggestion that the dispute that
the applicants sought to
refer to the CCMA for conciliation was a dispute concerning dismissal
or resignation.  When one examines
and scrutinises the referral
document used in this case, as this Court scrutinised the referral
document in
Intervalve
,
[79]
to determine whether a constructive dismissal dispute was referred to
conciliation, the result is that no such dispute was referred
to
conciliation.  Therefore, on that basis too, the Labour Court
had no jurisdiction to adjudicate the dispute.
[130]
The view that the alleged constructive dismissal dispute was referred
to the CCMA for conciliation by way
of the referral document dated 19
September 2011 is a view that is in conflict with almost everything
that is contained in that
referral document.  First, there is
not a single mention of the word “dismissal” or “dismiss”
in the
referral document.  Second, there is not a single mention
of the word “resignation” or “resign” or

“resigned”.  Third, there is not a single mention of
“constructive dismissal”.  Of course, there
is not a
single mention of “automatically unfair dismissal”.
[131]
Furthermore, the first judgment holds the view referred to in the
preceding paragraph despite the absence
of any explanation by anybody
as to—
(a)
Why, if the applicants intended to refer a constructive dismissal
dispute to
the CCMA for conciliation, they did not tick “unfair
dismissal” in paragraph 3 of the referral document but instead

ticked “unfair discrimination S10 of the Employment Equity
Act”;
(b)
why, when giving a summary of the facts of the dispute, the
applicants did not
include any mention of “dismissal” or
“resignation” or “constructive dismissal” or
“automatically
unfair dismissal” but instead simply
mentioned “racial discrimination, verbal abuse”;
(c)
why, as the outcome of the conciliation process, the applicants did
not
say that they wanted compensation if they believed that the
dispute that they were referring to conciliation was a “constructive

dismissal” dispute; in this regard it needs to be pointed out
that for constructive dismissal the only competent relief under
the
LRA is compensation.  Reinstatement and re employment are
not competent because, for those remedies, there must have
been a
dismissal; therefore, the outcome that the applicants said in the
referral form they wanted is not competent in respect
of a
constructive dismissal dispute; the remedy they desired is only
competent in respect of an unfair discrimination claim under
section
10 of the Employment Equity Act because, for that type of dispute and
others, section 50 of the Employment Equity
Act gives the Labour
Court the power to grant a “just and equitable” remedy as
well as an interdict; the outcome that
the applicants said they
wanted is consistent with them having intended to refer an unfair
discrimination dispute to conciliation
and inconsistent with them
having intended to refer a constructive dismissal dispute to
conciliation;
(d)
why, the applicants elected not to complete Part B of the referral
document
which is required to be completed by those employees
referring an unfair dismissal dispute to conciliation;
(e)
why, the applicants did not use the blank space in the referral
document to
indicate the nature of the dispute that they were
referring to conciliation if they felt that there was no applicable
box provided
for in the referral document that accurately captured
the dispute which they intended to refer to conciliation; and/or
(f)
how the hurdle created by the exclusion of a dispute under section
10
of a dismissal dispute contemplated in section 191 of the LRA.
Section 10(1) of the Employment Equity Act makes it clear
that, as a
matter of law, an unfair discrimination dispute under section 10(1)
excludes any dismissal dispute from the ambit of
an unfair
discrimination dispute under section 10 of the Employment Equity Act.
[132]
The first
judgment seems to infer that the dispute that was referred to
conciliation by way of the referral document in issue in
this case
was a constructive dismissal dispute.  In
S
v Mtsweni
the Appellate Division warned that inferences and probabilities must
be distinguished from conjecture or speculation.
[80]
In
Caswell
v Powell Duffryn Association Colliers Ltd
the Court said that there can be no proper inference unless there are
objective facts from which the other facts are sought to
be
established.
[81]
The inference that is sought to be drawn must be consistent with all
the proved facts and, in civil proceedings, it must
be the most
plausible inference.  In this case, given what I have set out
above, there can be no basis for any suggestion
that the inference
drawn is plausible.
Did this Court in
Intervalve use the referral document to determine whether a dispute
was referred to conciliation?
[133]
The next question is whether in
Intervalve
this Court used the
referral document to decide what dispute had been referred to
conciliation and what dispute had not been referred
to conciliation.
Yes, indeed, in
Intervalve
this Court examined and scrutinised
the referral document to determine which dispute was, and, which
dispute was not, referred
to conciliation.  This is to be seen
in paragraphs 102 to 106 of the judgment.  They read:
“
[102]
The union did not include in the record the referral form that it
used to make the referral of 20 April 2010.  However,
we do have
in the record the referral form that the union used for the second
referral which is identical to the referral form
that the union would
have used on 20 April 2010.  Paragraph 1 of the referral form
requires particulars of the party referring
the dispute.  In
paragraph 1 the union would have put itself only or itself and the
dismissed employees as the referring party.
Paragraph 2
requires the details of the other party to the dispute.  The
heading to paragraph 2 reads: ‘DETAILS
OF THE OTHER PARTY
(PARTY WITH WHOM YOU ARE IN DISPUTE)’.  Here the union
stated that the other party to the dispute
was Steinmüller.
[103]
Paragraph 2 of the referral form also requires the referring party to
state whether the other party with whom
it is in dispute is an
employer, union, employee or employers’ organisation.  In
paragraph 2 the union would have stated
that Steinmüller was the
employer.  Paragraph 3 bears the heading: ‘NATURE OF THE
DISPUTE’.  It then
has the question: What is the dispute
about? and then a space is provided.  Under paragraph 3 the
party referring the dispute
is required to ‘summarise the facts
of the dispute you are referring’.  Under paragraph 3 the
union would have
indicated that the workers listed in the referral
had been dismissed by Steinmüller on 14 April 2010 for
participating
in an unprotected strike.  It would also have
probably alleged that the dismissal was procedurally and
substantively unfair.
[104]
Paragraph 4 of the referral form required the date of dismissal and
the place where the dismissal was effected.
Here the union
would have given 14 April 2010 as the date of dismissal and
Pretoria as the place where the dismissal
was effected.  Paragraph
6 required the specification of the result or outcome that the
referring party would like to have
out of the conciliation process.
In that paragraph the union would have indicated reinstatement
or payment of compensation
as the result it sought out of the
conciliation process.
[105]
The above means that the first referral was used to refer to
conciliation only the dismissal dispute between the
union and
Steinmüller in respect of the dismissal of the employees
appearing on the list attached to that referral.  The
fact that
we now know that some of the employees whose names appeared on that
list were not employed by Steinmüller but by
Intervalve and BHR
is neither here nor there.  This is because in that referral all
the employees were alleged to have been
employed by Steinmüller.
Intervalve and BHR were not mentioned at all in the referral.
[106]
The conclusion is inescapable that the first referral did not include
the dismissal dispute between Intervalve
and its former employees and
the dismissal dispute between BHR and its former employees.
Therefore, those dismissal disputes
were not referred to the
bargaining council for conciliation in the first referral.  I am
unable to agree with the proposition
that the first referral was for
any dispute other than the dispute between the union and Steinmüller
about the fairness of
the dismissal of the employees whose names
appeared on the list attached to the referral.  In this regard
it must be remembered
that, in so far as that list included names of
persons who had not been employed by Steinmüller and, therefore,
could not
have been dismissed by Steinmüller, the definition of
the word ‘dispute’ in section 213 of the LRA includes an

alleged dispute.”
There
can, therefore, be no doubt that in
Intervalve
this Court not
only articulated the approach as to how a court should determine
whether a dispute was referred to the conciliation
process where some
referral was made but it also went on to apply that approach to the
facts of that case.  There is no sound
reason for that approach
to be departed from in this case.
Was the approach
adopted in Intervalve formalistic?
[134]
In the main
judgment in
Intervalve
this Court rejected any criticism that the approach adopted by the
majority was formalistic.  That is the approach that: (a)
the
referral of a dismissal dispute to conciliation is a precondition
before the Labour Court can be said to have jurisdiction;
and (b) to
determine whether a dispute was referred to conciliation in a case
where some referral was made, the correct approach
is to examine and
scrutinise the contents of the referral document.  In respect of
this approach this Court rejected criticism
in the third judgment by
Nkabinde J that it was adopting a formalistic approach.  This
Court pointed out that “jurisdiction
is not a formality”.
[82]
It went on to say: “The majority judgment [in
Driveline
]
eased markedly the formalities relating to dispute characterisation
at the conciliation stage.  That counters any resurgence
of
formalism.”
[83]
[135]
The main judgment in
Intervalve
went on to say:
“
[38]
There is a further important point, one that is central to the
question of formalism in this case.
The statute makes it easy
to refer disputes for conciliation.  The facts here illustrate
the point.  Though the initial
referral cited Steinmuller alone,
the referral could have mentioned any entity NUMSA suspected may have
been an employer.
Indeed, the second, abortive referral two
months later did precisely this.  Why NUMSA failed to adopt this
expedient from
the start we do not know.
The point is that
it could have done so easily.  That is not contested
.
[39]
What is more, though the employee must satisfy the council that a
copy of the referral had been
served on the employer, the statute
provides for readily practicable methods of service.  It can be
effected by hand, post
or fax.  In contrast to initiation of
process in the Magistrates’ and Superior Courts, proof of
service requires no
formality.  So the statute itself, and the
labour courts’ jurisprudence, have abated the risk of crippling
formalism.”
[84]
[136]
Just as in
Intervalve
, in this case too, the applicants could
have easily referred a constructive dismissal or unfair dismissal
dispute to the CCMA for
conciliation.  They were able to refer
an unfair labour practice dispute to the CCMA for conciliation on 14
September 2011.
They were equally able to refer an “unfair
discrimination section 10 of the Employment Equity Act”
dispute
on 19 September 2011.  What prevented them from
referring an unfair dismissal dispute to conciliation?  In my
view, nothing
and they have not told us anything either.
[137]
The confusion which appears to have led the Labour Court to conclude
that it had jurisdiction in this matter
seems to be the statement by
the applicants in their answering affidavit in the rescission
application that during the conciliation
meeting the true nature of
the dispute emerged and the commissioner identified the true nature
of the dispute.  They then
suggest that a commissioner is
entitled to identify the true dispute between the parties.  The
first point to be made is that
a commissioner has no power to
conciliate a dispute other than the dispute that the applicants
referred to the conciliation process.
In other words, the
statute limits a commissioner to conciliating the dispute that has
been referred to the conciliation and no
other.  As shown
elsewhere in this judgment, a number of provisions of the
Labour
Relations Act make
this clear.  In this regard it must be
remembered that the CCMA and, therefore, a commissioner of the CCMA,
is a creature
of statute and derives its powers from the LRA.
If, therefore, a commissioner sought to conciliate a dispute that has
not
been referred to the conciliation process, he or she will be
acting
ultra vires
.
[138]
The CCMA is a body created by legislation and exercising public power
when it conciliates a dispute.
In accordance with the principle
of legality, a commissioner of the CCMA may not exercise any power
other than power conferred
upon him or her by law.  In this case
sections 115
,
133
and
135
of the LRA make it abundantly clear that
the power to conciliate conferred upon the CCMA or a commissioner is
the power to conciliate
a dispute that has been referred to
conciliation.  Not a single provision can be found in the whole
LRA which confers power
on the CCMA or a commissioner to conciliate a
dispute that has not been referred to conciliation.
[139]
In some areas the first judgment implies that a CCMA commissioner may
conciliate a dispute that was not
referred to conciliation as long as
it is raised at the conciliation meeting.  That is a view that
is contradicted by clear
statutory provisions, namely
sections 115
,
133
and
135
of the LRA.  In other parts the first judgment says
that it agrees with the conclusion of the Labour Court that the
constructive
dismissal dispute was referred to conciliation.
The first judgment does not refer to anything that supports this
view.
In this judgment I have referred to numerous aspects in
regard to both the content of the referral document and the law to
show
that any view that the constructive dismissal dispute or any
dismissal dispute whatsoever was referred to conciliation by way of

the referral document used in this case is simply without any basis
in fact or law.  The view that a constructive dismissal
dispute
or an automatically unfair dismissal dispute was referred to
conciliation by way of the referral document used in this
case is
simply not supported by anything.
[140]
It is, however, true that a commissioner may have to try and identify
what the true dispute between the
parties is where this is not
clear.  However, the purpose of that exercise has to be that, if
the true dispute is the same
as the dispute that was referred to the
conciliation process, he or she can conciliate the dispute with a
full appreciation of
what it is.  However, should the
commissioner form the view that the true dispute between the parties
is not the one that
was referred to the conciliation process, the
commissioner is required to rule that he or she cannot conciliate
that dispute for
lack of jurisdiction because it was not referred to
conciliation and that he or she is confined to the dispute that was
referred
to the conciliation process.  What a commissioner may
not do, as a matter of law, is to conciliate dispute B which has not

been referred to conciliation in circumstances where dispute A is the
dispute that was referred to conciliation.
[141]
The Labour Court is not bound by a commissioner’s
identification of what he or she believes to be
the true dispute.
The Labour Court is free to make its own identification of what
dispute was referred to conciliation, what
the true dispute between
the parties is, what dispute was conciliated and what dispute was
referred to it for adjudication.
[142]
Furthermore, it is important to avoid using the Rules of the CCMA to
decide the jurisdiction of the Labour
Court.  Whether or not the
Labour Court has jurisdiction in a particular matter or dispute is
determined by reference to the
provisions of the LRA and not by
reference to the Rules of the CCMA.
[143]
Again, as stated elsewhere in this judgment, the fact that a dispute
was discussed at a conciliation meeting
is irrelevant to the question
whether the Labour Court has jurisdiction in a particular
matter.  In this regard
I see that both the Labour Court and
Labour Appeal Court made statements which suggest that that may be a
relevant factor.
That is an error.  It is a view that is
not supported by any provision in the LRA.  The LRA allows the
referral of a
dismissal dispute to adjudication by the Labour Court
or to arbitration by the CCMA after the expiry of 30 days from the
date of
receipt by the CCMA of the referral even if no conciliation
meeting was held between the parties.  This fact supports the
view that the holding of a conciliation meeting is not a requirement
for the jurisdiction of the Labour Court.  This, therefore,

means that the Labour Court will have jurisdiction even when there
has been no discussion between the parties to attempt conciliation.

Therefore, a discussion of a dispute at a conciliation meeting is not
a jurisdiction-conferring factor.
[144]
It would
seem that there are two possible bases upon which the first judgment
reaches the conclusion that the Labour Court had jurisdiction
to
adjudicate the dismissal dispute that the applicants referred to it.
The one is that it may be saying that the applicants
did refer the
constructive dismissal dispute to the conciliation process.  At
least two features of the first judgment support
this proposition.
The one is that the first judgment accepts the correctness of the
decision of this Court in
Intervalve
and
that of the Labour Appeal Court in
Driveline
that the referral of an unfair dismissal dispute to a conciliation
process is a jurisdictional requirement before the Labour Court
can
have jurisdiction.
[85]
That the first judgment accepts this proposition as correct is
important.  This is so because it means that, flowing
from that,
the first judgment must also accept that, if no dismissal dispute was
referred to the conciliation process, the Labour
Court could not have
had jurisdiction.
[145]
The question that arises is: does the first judgment point to or
refer to any facts on record which support
the proposition that the
applicants did refer a dismissal dispute of any kind to the
conciliation process?  The answer is:
it does not.  It is
also not the applicants’ case on the record that, when they
completed the referral document, they
intended to refer a dismissal
dispute to the conciliation process.
[146]
Another feature that supports the proposition that the reason for the
first judgment’s conclusion
that the Labour Court had
jurisdiction is an implied acceptance that the applicants did refer a
constructive dismissal dispute
to the conciliation process is this.
The first judgment criticises as formalistic the LAC’s approach
for determining
whether the constructive dismissal dispute was
referred to conciliation.  That approach was one focused on the
contents of
the referral document.  Why would it have been
necessary for the first judgment to criticise the approach of the LAC
if it
(i.e. the first judgment) was not taking a different approach
to that of the LAC?  I think it did so because it sought to
adopt a different approach to determine whether the constructive
dismissal dispute was referred to conciliation, and, it implied
that
the dispute was referred to the conciliation process.
[147]
If the basis of the first judgment’s conclusion that the Labour
Court had jurisdiction is that the
constructive dismissal dispute was
referred to the conciliation process, two observations need to be
made.  The first is that
the basis is not supported by any facts
whatsoever and it disregards
Intervalve,
a previous decision
of this Court, on how to determine whether a dispute was referred to
conciliation.  I say this because
in
Intervalve
this
Court used the contents of the referral document to determine what
dispute was referred to the conciliation process.
Indeed, this
Court expressly held that this is the way to determine whether a
dispute was or was not referred to conciliation on
the basis of a
certain referral document.  However, the second is that at least
this basis does not upset the legal position
that has obtained in our
labour law over a long time that disputes about the fairness of
dismissals must be referred to the conciliation
process before they
can be arbitrated or adjudicated.
[148]
Another basis is that the first judgment accepts that the applicants
did not refer the constructive dismissal
dispute to the conciliation
process but holds that the Labour Court, nevertheless, did have
jurisdiction because the constructive
dismissal dispute was discussed
at the conciliation meeting convened in respect of another dispute,
namely, the “unfair discrimination
S10 of the
Employment Equity Act” dispute.  There are many
features in the first judgment which suggest that
this is the basis
upon which the first judgment reached its conclusion that the Labour
Court had jurisdiction.  The one is
that the first judgment
clearly records that this is the contention that was advanced on
behalf of the applicants.  The second
is that one sees in
various parts of the first judgment that it proceeds as if what
matters for purposes of jurisdiction is whether
a dispute was
conciliated or not.  It seems implied in the first judgment
that, even if a dismissal dispute was not referred
to the
conciliation process, that does not matter as long as that dispute
was actually conciliated at the conciliation meeting,
that will give
the Labour Court jurisdiction.
[149]
If this is the basis upon which the first judgment reaches the
conclusion that the Labour Court has jurisdiction,
it would mean that
it is in conflict with the decision of this Court in
Intervalve
which it accepts as correct.  In
Intervalve
this Court
held that a dismissal dispute must be referred to conciliation before
the Labour Court may have jurisdiction.  In
fact if the basis of
the first judgment’s conclusion that the Labour Court had
jurisdiction is that the constructive
dismissal dispute was discussed
at the conciliation meeting relating to another dispute and that
gives the Labour Court jurisdiction,
the first judgment would be
making new law.  The new law would be that there is an exception
to the principle that a dispute
about the fairness of a dismissal is
required to be referred to conciliation before it can be the subject
of arbitration or adjudication.
This basis is not supported by
any provisions of the LRA and the first judgment also does not refer
to any.
[150]
I find it difficult to say which of the above bases is the basis upon
which the first judgment concludes
that the Labour Court had
jurisdiction.
[151]
In my view, the unfair discrimination dispute that the applicants
referred to the CCMA for conciliation
related to the alleged acts of
racism or unfair discrimination based on their race or colour that
the applicants complain they
were subjected to by CMI.  That is
why in the referral document they summarised the facts of the dispute
as being “verbal
abuse, racial discrimination” and that
is why, as the outcome of the referral of the dispute to
conciliation, they wrote
in the referral document: “employer to
stop discriminating us”.  They sought to get CMI to stop
subjecting them
to alleged acts of racism or racial discrimination.
If the applicants pursue the unfair discrimination dispute, they may
claim compensation under the Employment Equity Act.  They can
also adduce evidence to the effect that they had to resign as
a
result of the alleged acts of racial discrimination in the workplace
and ask the Labour Court to take that factor into account
when it
determines the amount of compensation it may award them under section
50 of the Employment Equity Act.  There is no
limit to the
amount of compensation that an employee may be awarded under section
50 for unfair discrimination.
[152]
In the circumstances I would have dismissed the appeal and made no
order as to costs.
For
the Applicants:
G
Fourie and Z Ngwenya instructed by Bowman Gilfillan Inc.
For
the Respondent:
F
Wilke and E Cosyn instructed by the Klopper Jonker Inc.
[1]
97 of 1998.
[2]
55 of 1998.
[3]
In terms of the
Labour Relations Act 66 of 1995
.
[4]
September
v CMI Business Enterprise CC
,
unreported judgment of the Labour Court, Johannesburg, Case No JS
1107/11 (12 February 2013) (Default judgment).
[5]
Id at para 1.
[6]
Section 187(1)(f)
provides:
“
(1)
A dismissal is automatically unfair if the employer, in dismissing
the employee, acts
contrary to
section 5
or, if the reason for the
dismissal is—
(f)
that the employer unfairly discriminated against an employee,
directly or
indirectly, on any arbitrary ground, including, but not
limited to race, gender, sex, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, conscience, belief,
political opinion, culture, language, marital status or family
responsibility.”
[7]
Default
judgment above n 4 at para 3.
[8]
Id
at paras 3-4.
[9]
See
CMI
Business Enterprise CC v September
,
unreported judgment of the Labour Appeal Court, Case No JA 111/2014
(26 October 2016) (Labour Appeal Court judgment) at para
20.
[10]
Id
at para 21.
[11]
CCMA Rules.  See [38] below for the full rule.
[12]
CMI
Business Enterprise CC v September; In Re: September v CMI Business
Enterprise CC
[2014] ZALCJHB 228 (Labour Court judgment) at para 42.
[13]
Id.
[14]
Id at para 43.
[15]
Id at para 47.
[16]
Id at para 48.
[17]
Id at para 72.
[18]
CMI
Business Enterprise CC v September
,
unreported judgment of the Labour Court, Johannesburg, Case No JS
1107/11 (29 October 2014) at para 5.
[19]
Section 165 provides that:
“
The Labour Court,
acting of its own accord or on the application of any affected party
may
vary or rescind a
decision, judgment or order—
(a)
erroneously sought or erroneously granted in the absence of any
party affected by
that judgment or order;
(b)
in which there is an ambiguity, or an obvious error or omission, but
only to the
extent
of that ambiguity, error
or omission; or
(c)
granted as a result of a mistake common to the parties to the
proceedings.”
[20]
Rules
for the Conduct of Proceedings in the Labour Court (Labour Court
Rules).  Rule 16A provides that:
“
(1)
The court may, in addition to any other powers it may have—
(a)
of its own motion or an application of any party affected, rescind
or vary any order
or judgment—
(i)
erroneously sought or erroneously granted in the absence of any
party affected
by it;
(ii)
in which there is an ambiguity or a patent error or omission, but
only to
the extent of such ambiguity, error or omission;
(iii)
granted as the result of a mistake common to the parties; or
(b)
on application of any party affected, rescind any order or judgment
granted in absence
of that party.”
[21]
Labour Appeal Court judgment above n 9 at para 29.
[22]
National
Union of Metal Workers of South Africa v Driveline
[1999]
ZALC 157
;
2000 (4) SA 645
(LAC) (
Driveline
).
[23]
Labour Appeal Court judgment above n 9 at para 32.
[24]
Id
at para 33.
[25]
Id
at paras 34-5.
[26]
Id at para 35.
[27]
Id
at
paras 37 and 41.
[28]
S v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para
14.  See also Du Plessis et al
Constitutional
Litigation
(Juta & Co Ltd, Cape Town 2013) (Du Plessis) at 18-20.
[29]
Du
Plessis
id.
[30]
Id
at 20.
[31]
See
National
Union of Metal Workers of SA v Intervalve (Pty) Ltd
[2014]
ZACC 35
; (2015) 36 ILJ 363 (CC);
2015 (2) BCLR 182
(CC) (
Intervalve
)
at para 25;
SATAWU
v Moloto N.N.O
[2012] ZACC 19
;
2012 (6) SA 249
(CC);
2012 (11) BCLR 1177
(CC) at
para 10;
Aviation
Union of South Africa v South African Airways (Pty) Ltd
[2011]
ZACC 31
;
2012 (1) SA 321
(CC);
2012 (2) BCLR 117
(CC) at para 28;
South
African Police Service v Police and Prisons Civil Rights Union
[2011]
ZACC 21
;
2011 (6) SA 1
(CC);
2011 (9) BCLR 992
(CC) at para 15;
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration
[2008]
ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC) at para 30;
and
National
Education Health and Allied Workers Union v University of Cape Town
[2002]
ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 14.
[32]
Paulsen
v Slip Knot Investments 777 (Pty) Ltd
[2015]
ZACC 5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at para 26.
See also Du Plessis above n 28 at 33.
[33]
Labour Relations Act above
n 3 at
section
135(5)(a).
[34]
Labour
Appeal Court judgment above n 9 at para 32.
[35]
Id
at para 37.
[36]
CUSA
v Tao Ying Metal Industries
[2008]
ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at para 66.
[37]
Driveline
above
n 22 at paras 53-4 provides:
“
We
were also urged by the respondent’s counsel to hold that
parties to a dismissal dispute which has been to conciliation
are
bound by the conciliating commissioner’s description of the
dispute in the certificate of outcome contemplated in
section
191(5).
For the reasons that follow, I am of the opinion that
there is no merit in this submission.
A commissioner who
conciliates a dispute is not called upon to adjudicate or arbitrate
such dispute.  He might take one or
other view on certain
aspects of the dispute but, for his purposes, whether the dismissal
is due to operational requirements
or to misconduct or incapacity,
does not affect his jurisdiction.  It is also not, for example,
the conciliating commissioner
to whom the Act gives the power to
refer a dismissal dispute to the Labour Court.  That right
is given to the dismissed
employee (see section 195(5)(b)).  If
the employee, and not the conciliating commissioner, has the right
to refer the dispute
to the Labour Court, why then should the
employee be bound by the commissioner’s description of the
dispute?”
[38]
Labour
Appeal Court judgment above n 9 at para 32.
[39]
Intervalve
above
n 31 at para 177;
African
Christian Democratic Party v Electoral Commission
[2006] ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC) at paras
24-5; and
AllPay
Consolidated Investment Holdings (Pty) Ltd v Chief Executive Office,
South Africa Social Security Agency
[2013]
ZACC 42
;
2014 (1) SA 604
(CC);
2014 (1) BCLR 1
(CC) at para 30.
[40]
Labour Relations Act above
n 3 at
section 3(b).
[41]
Id at
section 1(a).
[42]
Id at
section
1(d)(iv).
[43]
Labour Appeal Court judgment above n 9 at paras 30-2.
[44]
Driveline
above n 22 at para 73 provides:
“
To
me it is as clear as daylight that the wording of
section 191(5)
imposes the referral of a dismissal to conciliation as a
precondition before such a dispute can either be arbitrated or be

referred to the Labour Court for adjudication.  I cannot see
what clear language the Legislature could have used other than
the
language it chose to use in
section 191(5)
if it had intended that
the referral of a dismissal dispute to conciliation should be a
precondition to such dispute being arbitrated
or being referred to
the Labour Court for adjudication.”
Intervalve
above n 31 at para 32 provides:
“
The
reasoning of the
Driveline
majority is, in my view,
convincing.
Section 191(5)
stipulates one of two preconditions
before the dispute can be referred to the Labour Court for
adjudication: there must be a
certificate of non-resolution, or 30
days must have passed.  If neither condition is fulfilled, the
statute provides no
avenue through which the employee may bring the
dispute to the Labour Court for adjudication.  As Zondo J shows
in his judgment,
with which I concur, this requirement has been
deeply rooted in South African labour-law history for nearly a
century.
We should not tamper with it now.”  (Footnote
omitted.)
[45]
Driveline
above
n 22 at para 35.
[46]
Id
at para 42.
[47]
Id
at para 55.
[48]
Id at para 43.
[49]
Id
at para 44-6.
[50]
Id
at para 53.
[51]
Id at para 64.
[52]
Intervalve
above n 31 at para 46.
[53]
Id at para 44 citing with approval
Maharaj
v Rampersad
1964 (4) SA 638
(A) at 646C-E.
[54]
See [41].
[55]
Kasipersad
v Commission for Conciliation, Mediation & Arbitration
[2002]
ZALC 89
; (2003) 24 ILJ 178 (LC) at paras 5-6, where the Labour Court
provided, with reference to a review application, that:
“
The
prohibition against reference to statements made at the conciliation
during any subsequent proceedings and the prohibition
against the
commissioner or any other person testifying about the conciliation
process conflicts with the right of the applicant
to administrative
justice and the power of this court to review the performance of any
function by the CCMA.
The
CCMA Rules, as subordinate legislation, must therefore yield to the
Labour Relations Act and
to the Constitution”.
[56]
Dendy “
Privilege”
in
LAWSA
3 ed (2015) vol 18 at para 181.
[57]
Premier
Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Mediation
& Arbitration
[2016]
ZALCJHB 426;
(2017)
38 ILJ 658 (LC) (
Premier
Foods
).
[58]
Id at paras 37-8.
[59]
Zeffert
et al
The
South African Law of Evidence
2 ed (LexisNexis/Butterworths, Durban 2009) at 700.
[60]
Id
at
703, relying on
Naidoo
v Marine & Trade Insurance Co Ltd
1978 (3) SA 666
(A) at 678 and
Erasmus
v Pienaar
[1984] ZAGPPHC 1;
1984 (4) SA 9
(T) at 30C-E.
[61]
Labour Court judgment above n 12 at para 6-8.
[62]
Section 10(1) of the Employment Equity Act is quoted in [123].
[63]
Default judgment above n 4.
[64]
Id at para 3.
[65]
Driveline
above n 22.
[66]
Id at para 38.
[67]
Id at para 73.
[68]
Id at para 74.
[69]
Intervalve
above  n 31.  Cameron J wrote for the majority with
Mogoeng CJ, Moseneke DCJ, Khampepe J, Leeuw AJ and Zondo J
concurring.
Zondo J wrote a concurring judgment.
Nkabinde J and Froneman J wrote dissenting judgments.
[70]
Id at paras 31-2.
[71]
Id at para 40.
[72]
Driveline
above n 22 at para 107-8.
[73]
75 of 1997.  Section 80(1) and (4) reads as follows:
“
(1)
If there is a dispute about the interpretation or application of
this Part, any party
to the dispute may refer the dispute in writing
to—
(a)
a council, if the parties to the dispute fall within the
registered scope of that council; or
(b)
the CCMA, if no council has jurisdiction.
.
. .
(4)
If a dispute remains unresolved, any party to the dispute may refer
it to the Labour
Court for adjudication.”
[74]
Intervalve
above
n 31 at para 109.
[75]
Id at para 100.
[76]
Id at para 44.
[77]
Id.
[79]
Intervalve
above
n 31 at paras 100 and 134.
[80]
1985 (1) SA 590
(A) at 593D
[81]
[1939] 3 All ER 722
at 733.
[82]
Intervalve
above
n 31 at para 37.
[83]
Id.
[84]
Id at paras 38-9.
[85]
See [46] above.