Driefontein Consolidated (Pty) Limited v CCMA (JR138/01) [2001] ZALC 173 (16 October 2001)

Driefontein Consolidated (Pty) Limited v CCMA (JR138/01) [2001] ZALC 173 (16 October 2001)

The court found that the commissioner erred in accepting mere dispatch of the notice as proper service. The purpose of service is to ensure the notice comes to the attention of the party. Since the gold mine did not receive the notice and was not aware of the proceedings, the rules of audi alteram partem were not complied with. This constituted a gross irregularity. The proper order was to rescind the award, which the commissioner failed to do. Consequently, the ruling and award were reviewed and set aside, and the matter was referred back to the CCMA for arbitration de novo before a different commissioner.

Citation
[2001] ZALC 173
Parties
Applicant: Driefontein Consolidated (Pty) Limited; Respondent: CCMA
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
16 October 2001
Case Number
JR138/01
Procedural Posture
Review Application / Application to Review and Set Aside CCMA Ruling
Outcome
Application for review granted; CCMA ruling and award set aside.
Judges
A A Landman
Legal Topics
Service of Process, Audi Alteram Partem, Rescission of Award
Labour Law Civil Procedure Service of Process Audi Alteram Partem Rescission of Award

Case Brief

Summary, issues, holding and outcome

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Parties

Driefontein Consolidated (Pty) Limited

Applicant

CCMA

Respondent

Procedural Posture

Review Application / Application to Review and Set Aside CCMA Ruling

Legal Issues

  1. 1 Whether proper service of the notice of set down was effected on the gold mine.
  2. 2 Whether failure of notice to come to the attention of the party constitutes a gross irregularity.
  3. 3 Whether the award should be rescinded due to non-compliance with audi alteram partem.

Ratio Decidendi

The court found that the commissioner erred in accepting mere dispatch of the notice as proper service. The purpose of service is to ensure the notice comes to the attention of the party. Since the gold mine did not receive the notice and was not aware of the proceedings, the rules of audi alteram partem were not complied with. This constituted a gross irregularity. The proper order was to rescind the award, which the commissioner failed to do. Consequently, the ruling and award were reviewed and set aside, and the matter was referred back to the CCMA for arbitration de novo before a different commissioner.

Court Disposition

Application for review granted; CCMA ruling and award set aside.

Orders

  • The ruling and award of the CCMA are reviewed and set aside.
  • The matter is referred back to the CCMA for arbitration de novo before a commissioner other than the second respondent.