Boshoff v Commission for Conciliation, Mediation and Arbitration and Others (JR968/15) [2016] ZALCJHB 530 (6 September 2016)
The court found that the review application was filed at least two and a half months late, well outside the six-week time limit prescribed by section 145 of the Labour Relations Act. The applicant did not dispute the late filing and failed to provide any proof to the contrary. There was no application for...
Source-derived case information.
- Citation
- [2016] ZALCJHB 530
- Parties
- Applicant: Willem Hendrick Boshoff; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: S Oosthuizen N.O; Respondent: Professional Industrial Services; Respondent: Maxam Dantex Civil Explosives
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR968/15
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application dismissed for lack of jurisdiction due to late filing and absence of condonation.
- Judges
- Van Niekerk
- Legal Topics
- Review of Arbitration Award, Condonation, Jurisdiction, Constructive Dismissal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Willem Hendrick Boshoff
Applicant
Commission for Conciliation, Mediation and Arbitration
Respondent
S Oosthuizen N.O
Respondent
Professional Industrial Services
Respondent
Maxam Dantex Civil Explosives
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the review application was filed within the statutory time limit prescribed by section 145 of the Labour Relations Act.
- 2 Whether the absence of an application for condonation deprives the Labour Court of jurisdiction to entertain the review application.
- 3 Whether the applicant discharged the onus of proving constructive dismissal.
Ratio Decidendi
The court found that the review application was filed at least two and a half months late, well outside the six-week time limit prescribed by section 145 of the Labour Relations Act. The applicant did not dispute the late filing and failed to provide any proof to the contrary. There was no application for condonation before the court. The Labour Appeal Court has held that compliance with statutory time limits is a jurisdictional requirement, and in the absence of condonation, the court cannot entertain the application. The period of delay and the applicant's prospects of success are irrelevant in the absence of condonation. Accordingly, the court lacked jurisdiction and dismissed the...
Court Disposition
Application dismissed for lack of jurisdiction due to late filing and absence of condonation.
Orders
- The application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: JR968/15
In the matter between
WILLEM HENDRICK BOSHOFF Applicant
and
COMMISSION FOR CONCILIATION,
First Respondent
MEDIATION AND ARBITRATION
S OOSTHUIZEN N.O
Second Respondent
PROFESSIONAL INDUSTRIAL SERVICES Third
Respondent
MAXAM DANTEX CIVIL EXPLOSIVES Fourth
Respondent
Heard: 30 August 2016
Judgment: 6 September 2016
VAN NIEKERK J
[1] This is an application to review and set aside an arbitration award issued by the second respondent on 10 April 2015. In the award, the second respondent held that the applicant had failed to discharge the onus of proving the existence of a constructive dismissal.
[2] The present application was filed on 18 August 2015; the notice of motion is dated 11 August 2015. In the founding affidavit filed in support of the review application, the applicant provides a chronology of material facts. He also articulates his grounds for review, primary among which are assertions to the effect that the commissioner failed to understand technical aspects of the case and that the proceedings were irregularly conducted for a number of reasons that are spelled out in the founding affidavit.
[3] When the matter was called during the course of a pre-enrolment hearing, I put to the applicant that the award had been filed outside of the time limit prescribed by s145 of the Labour Relations Act, 66 of 1995. The applicant did not dispute this and was unable to proffer any proof to the contrary. The onus is on the applicant to show that
the review application had been launched timeously, because this is a fact that goes to establishing the jurisdiction of this court. The delay is not insignificant – the six-week time limit expired during the course of May 2015. By my reckoning, the application was filed at least 2 ½ months late.
[4] The legal principle applicable is that if an application such as the present is filed outside of a statutorily prescribed time limit, in the absence of any application for condonation, this court has no jurisdiction to entertain the application. As the Labour Appeal Court put it in SATAWU v Tokiso Dispute Settlement & others (JA 117/13, 5 May 2015), where a step constitutes a jurisdictional step (such as a time limit), and a party is out of time, in the absence of an application for condonation, the court cannot come to a party’s assistance. (See paragraph [19] of the judgment.) In the present instance, there is no application for condonation. In the circumstances, the issue is one of jurisdiction and the period of delay is irrelevant, as are the applicant’s prospects of success, if any, in the review application.
[5] The applicant appears on his own behalf. In these circumstances, the interests of the law and fairness would not be served by ordering him to bear the respondents’ costs. I intend therefore to make no order as to costs.
For these brief reasons, I make the following order:
1. The application is dismissed.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT