Enforce Security Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 707/07) [2009] ZALC 200 (27 July 2009)

Enforce Security Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 707/07) [2009] ZALC 200 (27 July 2009)

The court found that while Section 197(2) of the LRA provides for automatic substitution of the new employer upon transfer of a business, the procedural requirements for substitution under the CCMA rules were not met. Specifically, Rule 26 and Rule 31 require that an application for substitution be made on notice to...

Source-derived case information.

Citation
[2009] ZALC 200
Parties
Applicant: Enforce Security Services (Pty) Ltd; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Commissioner D.F. Matshaba; Respondent: Mhlongo Simon Vusimuzi
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
27 July 2009
Case Number
JR 707/07
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; rescission ruling set aside; matter remitted to CCMA for reconsideration by a different commissioner; no order as to costs.
Judges
Nyathela
Legal Topics
Rescission of Award, Substitution of Parties, Condonation, Transfer of Business, Ccma Rules, Automatic Substitution
Labour Law Civil Procedure Rescission of Award Substitution of Parties Condonation Transfer of Business Ccma Rules Automatic Substitution

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Parties

Enforce Security Services (Pty) Ltd

Applicant

Commission for Conciliation Mediation and Arbitration

Respondent

Commissioner D.F. Matshaba

Respondent

Mhlongo Simon Vusimuzi

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the CCMA commissioner erred in refusing rescission of the variation ruling substituting the applicant for Wolf Security.
  2. 2 Whether the applicant was entitled to notice of the substitution application under CCMA rules.
  3. 3 Whether the late filing of the substitution application required condonation and whether such condonation was granted.

Ratio Decidendi

The court found that while Section 197(2) of the LRA provides for automatic substitution of the new employer upon transfer of a business, the procedural requirements for substitution under the CCMA rules were not met. Specifically, Rule 26 and Rule 31 require that an application for substitution be made on notice to all interested parties and accompanied by all relevant documents. The applicant was not notified of the variation application and only became aware of the proceedings upon service of a warrant of execution. Furthermore, the substitution application was filed late without an application for condonation, and no ruling on condonation was made. The commissioner’s conclusion that...

Court Disposition

Application for review granted; rescission ruling set aside; matter remitted to CCMA for reconsideration by a different commissioner; no order as to costs.

Orders

  • The rescission ruling of the second respondent under case number GAJB 1572-05 dated 25 February 2007 is reviewed and set aside.
  • The matter is remitted to the first respondent to be dealt with by a commissioner other than the second respondent.