Cementation Mining v Commission for Conciliation, Mediation and Arbitration and Others (JR 1644/06) [2009] ZALC 112; (2010) 31 ILJ 1167 (LC) (13 November 2009)

Cementation Mining v Commission for Conciliation, Mediation and Arbitration and Others (JR 1644/06) [2009] ZALC 112; (2010) 31 ILJ 1167 (LC) (13 November 2009)

The commissioner failed to address the rescission application brought by the applicant, instead confusing it with an earlier application by the third respondent. This amounted to a failure to apply his mind and a reviewable irregularity. The applicant was not in willful default and had satisfied the requirements for rescission. Given that the outcome is a foregone conclusion, further delay would cause prejudice, and the Court is in as good a position as the CCMA, it is appropriate for the Labour Court to substitute its own order granting rescission. The conduct of the third respondent's representative and the authenticity of the trade union raise serious concerns warranting referral to...

Citation
[2009] ZALC 112
Parties
Applicant: Cementation Mining; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Dintle Frederick Matshaba; Respondent: Petrus Sikhosana; Respondent: Intellectual Democratic Workers Union
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
13 November 2009
Case Number
JR 1644/06
Procedural Posture
Review Application / Judgment on Review of Rescission Ruling
Outcome
Application for review and rescission granted; substituted order made; costs awarded against third and fourth respondents; referrals for investigation ordered.
Judges
Van Niekerk
Legal Topics
Rescission of Award, Review of Ccma Ruling, Representation Rights, Costs Order, Trade Union Authenticity
Labour Law Civil Procedure Rescission of Award Review of Ccma Ruling Representation Rights Costs Order Trade Union Authenticity

Case Brief

Summary, issues, holding and outcome

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Parties

Cementation Mining

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Dintle Frederick Matshaba

Respondent

Petrus Sikhosana

Respondent

Intellectual Democratic Workers Union

Respondent

Procedural Posture

Review Application / Judgment on Review of Rescission Ruling

Legal Issues

  1. 1 Whether the commissioner failed to address the correct rescission application initiated by the applicant.
  2. 2 Whether the commissioner misconstrued the parties and facts, resulting in a failure to apply his mind.
  3. 3 Whether the applicant satisfied the requirements for rescission of the substituted arbitration award.

Ratio Decidendi

The commissioner failed to address the rescission application brought by the applicant, instead confusing it with an earlier application by the third respondent. This amounted to a failure to apply his mind and a reviewable irregularity. The applicant was not in willful default and had satisfied the requirements for rescission. Given that the outcome is a foregone conclusion, further delay would cause prejudice, and the Court is in as good a position as the CCMA, it is appropriate for the Labour Court to substitute its own order granting rescission. The conduct of the third respondent's representative and the authenticity of the trade union raise serious concerns warranting referral to...

Court Disposition

Application for review and rescission granted; substituted order made; costs awarded against third and fourth respondents; referrals for investigation ordered.

Orders

  • The ruling made by the second respondent dated 26 October 2007 is reviewed and set aside.
  • The ruling is substituted by the following: 'The arbitration award (as substituted by the Labour Court under case number JR 1644/06) is rescinded.'