EOH Abantu (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Another (J 68/08) [2008] ZALC 40; [2008] 7 BLLR 651 (LC) ; (2008) 29 ILJ 2588 (LC) (28 March 2008)

EOH Abantu (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Another (J 68/08) [2008] ZALC 40; [2008] 7 BLLR 651 (LC) ; (2008) 29 ILJ 2588 (LC) (28 March 2008)

The Labour Court held that the CCMA conciliating commissioner is obliged to determine any jurisdictional objection raised during conciliation. The refusal to do so and the subsequent issuing of a certificate of non-resolution without deciding the jurisdictional point constitutes a reviewable irregularity. The...

Source-derived case information.

Citation
[2008] ZALC 40
Parties
Applicant: EOH Abantu (Pty) Ltd; Respondent: Commissioner for Conciliation, Mediation and Arbitration; Respondent: Mostert, Johannes Frederik
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
28 March 2008
Case Number
J68/08
Procedural Posture
Urgent Application / Application to Stay Arbitration Pending Review
Outcome
Application granted. Arbitration proceedings stayed pending review. Costs awarded against the second respondent.
Judges
AC Basson
Legal Topics
Jurisdiction of Ccma, Certificate of Non Resolution, Review of Administrative Action, Urgent Interdict, Constructive Dismissal
Labour Law Civil Procedure Jurisdiction of Ccma Certificate of Non Resolution Review of Administrative Action Urgent Interdict Constructive Dismissal

Source-derived case record

Summary, issues, holding and outcome

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Parties

EOH Abantu (Pty) Ltd

Applicant

Commissioner for Conciliation, Mediation and Arbitration

Respondent

Mostert, Johannes Frederik

Respondent

Procedural Posture

Urgent Application / Application to Stay Arbitration Pending Review

Legal Issues

  1. 1 Whether the CCMA conciliating commissioner is obliged to determine jurisdictional objections raised at conciliation.
  2. 2 Whether the issuing of a certificate of non-resolution without deciding jurisdiction constitutes a reviewable irregularity.
  3. 3 Whether arbitration proceedings should be stayed pending review of the certificate of non-resolution.

Ratio Decidendi

The Labour Court held that the CCMA conciliating commissioner is obliged to determine any jurisdictional objection raised during conciliation. The refusal to do so and the subsequent issuing of a certificate of non-resolution without deciding the jurisdictional point constitutes a reviewable irregularity. The certificate of non-resolution is an administrative act that remains valid until set aside by a competent court, and it is the jurisdictional fact that empowers the arbitrating commissioner to arbitrate the dispute. However, Rule 22 of the CCMA Rules does not entitle the arbitrating commissioner to reconsider a jurisdictional point that was raised and should have been determined at...

Court Disposition

Application granted. Arbitration proceedings stayed pending review. Costs awarded against the second respondent.

Orders

  • The Rules of the Labour Court relating to forms and manner of service are dispensed with; the matter is dealt with as urgent.
  • Arbitration proceedings before the First Respondent under case number GAJB34137-07 and set down for 18 January 2008 are stayed pending finalization of the review application under case number JR2911-07.