City of Johannesburg Metropolitan Municipality v Mthimunye NO and Others (JR18/21) [2024] ZALCJHB 264 (17 July 2024)
The applicant received the arbitration award on 23 November 2020 but filed the review application only on 15 January 2021, outside the statutory six-week period prescribed by section 145(1)(a) of the Labour Relations Act. The applicant failed to apply for condonation for the late filing, and did not respond to the...
Source-derived case information.
- Citation
- [2024] ZALCJHB 264
- Parties
- Applicant: City of Johannesburg Metropolitan Municipality; Respondent: Amos Mthimunye N.O.; Respondent: South African Local Government Bargaining Council; Respondent: Pregalnathan Naidoo
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR18/21
- Procedural Posture
- Review Application / Judgment on Review Application; Determination of Jurisdiction Due to Late Filing
- Outcome
- Review application dismissed for lack of jurisdiction due to late filing and absence of condonation.
- Judges
- H Molotsi
- Legal Topics
- Review of Arbitration Award, Condonation for Late Filing, Jurisdiction, Section 145 Lra
Source-derived case record
Summary, issues, holding and outcome
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Parties
City of Johannesburg Metropolitan Municipality
Applicant
Amos Mthimunye N.O.
Respondent
South African Local Government Bargaining Council
Respondent
Pregalnathan Naidoo
Respondent
Procedural Posture
Review Application / Judgment on Review Application; Determination of Jurisdiction Due to Late Filing
Legal Issues
- 1 Whether the review application was filed within the statutory six-week period as required by section 145(1)(a) of the Labour Relations Act.
- 2 Whether the applicant sought condonation for the late filing of the review application.
- 3 Whether the Labour Court has jurisdiction to adjudicate the review application in the absence of condonation.
Ratio Decidendi
The applicant received the arbitration award on 23 November 2020 but filed the review application only on 15 January 2021, outside the statutory six-week period prescribed by section 145(1)(a) of the Labour Relations Act. The applicant failed to apply for condonation for the late filing, and did not respond to the point in limine raised by the third respondent regarding the lateness and absence of condonation. The Labour Court, therefore, has no jurisdiction to adjudicate the review application. The application is dismissed on this basis, and no order as to costs is made.
Court Disposition
Review application dismissed for lack of jurisdiction due to late filing and absence of condonation.
Orders
- The review application was referred late.
- There was no condonation application.
Full Case Text
Judgment text and source record
46 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR18/21
In the matter between:
CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY
Applicant
and
AMOS MTHIMUNYE N.O.
First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL
Second Respondent
PREGALNATHAN NAIDOO
Third Respondent
Heard: 18 April 2024
Delivered: 17 July 2024
JUDGMENT
MOLOTSI, AJ
Introduction
[1] This is an application for review in terms of section 145 of the Labour Relations Act[1] (LRA), to review and correct the arbitration award or alternatively to review and set aside the arbitration award and refer the matter back to the second respondent to be heard de novo before another Commissioner other than the first respondent (Commissioner).
[2] The arbitration award was issued on 18 November 2020. In the arbitration award, the Commissioner concluded that the dismissal of the third respondent (employee) was procedurally fair but substantively unfair. The Commissioner ordered the applicant to reinstate the employee with retrospective payment.
[3] The applicant received the arbitration award on 23 November 2020 and the application for review was issued on 15 January 2021.
[4] In the answering affidavit filed by the employee, the employee raised a point in limine that the application was referred late and there was no condonation application.
[5] The applicant did not file a replying affidavit.
[6] There is no indication in the Court file, that the applicant applied for condonation for the late filing of the review application. There is further no indication that this Court issued any ruling regarding condonation.
Evaluation
[7] The employee raised a point in limine that the review application was referred late and that there is no condonation application.
[8] The applicant failed to respond to the point in limine raised by the employee.
[9] The review application was referred outside of the six weeks period as required by section 145(1)(a) of the LRA. The applicant in the founding affidavit at paragraph 9 confirmed receipt of the arbitration award on 23 November 2020.
[10] As per the Court’s date stamp, the review application was filed on 15 January 2021. Consequently, the review application was late and there was no condonation application filed. The Court has no jurisdiction to adjudicate the review application.
[11] None of the parties during the hearing of the review application raised the issue of the late referral of the review application nor made any submissions in respect of this issue. This Court, however, accepts that this point was raised as a point in limine in the answering affidavit. The applicant had an opportunity to respond to the point in limine and failed to do so.
[12] In the premises, the following order is made:
Order
1. The review application was referred late.
2. There was no condonation application.
3. This Court has no jurisdiction to adjudicate the review application.
4. No order as to costs is made.
H. Molotsi
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv H Viljoen
Instructed by: BMK Attorneys Inc
For the Respondent: Mr Y Dockrat
Instructed by: Dockrat Attorneys
[1] Act 66 of 1995, as amended.