Cylinder Heads for Africa (Pty) Ltd and Others v Motor Industry Bargaining Council and Others (JR1628/16) [2017] ZALCJHB 323 (7 September 2017)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JR 1628/16

In the matter between:

CYLINDER HEADS FOR AFRICA (PTY) LTD

First Applicant

COMPONENTS FOR AFRICA CC

Second Applicant

and

MOTOR INDUSTRY BARGAINING COUNCIL

First Respondent

COMMISSIONER SHAMIMA BHABHA N.O

Second Respondent

JOHN TSUPI DIALE & 2 OTHERS

Third Respondent

Considered:

In Chambers

Delivered:

7 September 2017

JUDGMENT: LEAVE TO APPEAL

MAKINTA AJ

[1] This is an applicationfor leave to appeal against this Court’s judgment dated 26 May 2017, in terms of which the Court dismissed the applicants’ application for the review and setting aside of the CCMA’s certificate of non-resolution, to the effect that the dispute remained unresolved as on the 9th May 2016.

[2] The applicants submit that this Court erred in finding that a fifteen (15) weeks’ delay is excessive but does not substantiate this submission, except to say that, the law prescribesthat the review application should be instituted within a reasonable time, and not within six (6)weeks.

[3] What the applicant fails to appreciate is that, it is trite law that, six (6) weeks is regarded as the reasonable time intended by the law.[1]

[4] The applicants submit that this Court did not attach ‘the necessary weight to the prospects of success” in the applicants’ case, but does not address what those prospects are.

[5] The judgment is to the effect that the issuance of a certificate of outcome has no legal significance, does not in any way prejudice the applicants, and is therefore not reviewable. The applicants do not address this finding in their application for leave to appeal.

[6] If the issuance of the certificate is not reviewable, then the applicants can never have good prospects of success with having it set aside.

[7] The applicants raise errors allegedly committed by the Court, but do not give facts on the basis of which another court would find that this Court erred.

[8] As an example, the applicants contend that this Court erred in finding that the certificate of non-resolution has no legal significance, but fail to state what its legal significance is, if it has any.

[9] The applicants contend that this Court erred in finding that the issue of the lateness of the referral or condonation can be raised at the level after issuance of the certificate, but do not explain why it cannot be raised. It is trite that, before arbitration or adjudication of any dispute that has been conciliated upon, each party is entitled to raise any jurisdictional issue one could have raised at conciliation, as long as that issue has not been determined by the commissioner before.

[10] It should be noted that, the applicants’ application for review was against the issuance of the certificate of non-resolution, and not against the commissioner’s condonation ruling. This is clear from prayers 1 to 4 of the Notice of Motion, especially prayer 1.

[11] It is not this Court’s finding that condonation can be considered at a later stage, but that if the issue of the late referral of the dispute has not been determined by the conciliating commissioner, the issue can still be raised for the arbitrating commissioner to determine. It is only if there is a ruling on condonation that the applicants can come to court to have it reviewed and set aside.

[12] This Court is not persuaded that the applicants have made out a case that anothe court would reasonably arrive at a decision different from that of this Court. Accordingly, the application for leave to appeal stands to be dismissed.

[13] In the promises, the following order is made:

Order

1 The application for leave to appeal is dismissed

2 There is no order as to costs.

_________________

E.S Makinta

Acting Judge of the Labour Court of South Africa

[1]University of Venda v Maluleke and Others [2017] ZALCJHB 72; (2017) 38 ILJ 1376 (LC) (28 February 2017) at para 7