Gwala v CCMA and Others (D 1782-17) [2020] ZALCD 6 (5 August 2020)
- Citation
- [2020] ZALCD 6
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Durban
- Panel
- Whitcher
- Case number
- D 1782-17
More details
- Court
- Labour Court Durban
- Panel
- Whitcher
- Case number
- D 1782-17
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the commissioner properly considered the relevant factors in the condonation application, including the explanation for the delay and the prospects of success. The applicant was warned of the referral period in the dismissal letter and did not require the disciplinary code to refer the matter. The disciplinary proceedings and outcome report indicated poor prospects of success. The review application did not meet the stringent test for interference with a discretionary ruling, and no basis existed for the court to set aside the commissioner's decision.
Court disposition
Review application dismissed.
Orders
- The application to review and set aside the condonation ruling is dismissed.
02
Material facts
Parties
Londeka Gwala
Applicant Counsel: Xaba AttorneysCCMA
RespondentSizwe M Ngubane N.O.
RespondentChickenland (Pty) Ltd t/a Nandos
Respondent Counsel: Guardian Employers Organisation03
Procedural history
Posture
Review Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the commissioner correctly exercised discretion in refusing condonation for the late referral to the CCMA.
- 02
Whether the applicant provided a reasonable explanation for the delay.
- 03
Whether the applicant demonstrated good prospects of success in the dismissal dispute.
Party arguments
- Applicant
- The applicant argued that the delay in referring the dispute to the CCMA was due to awaiting the third respondent's disciplinary code, which was necessary to confirm the nature of the allegations and to prepare the referral. The applicant contended that the commissioner failed to properly consider the explanation for the delay and the prospects of success.
- Respondent
- The respondents argued that the applicant was clearly informed in the dismissal letter of the 30-day referral period and did not require the disciplinary code to refer the matter. They maintained that the commissioner correctly found the explanation for the delay unreasonable and that the applicant had poor prospects of success, as evidenced by the disciplinary minutes and outcome report.
05
Court’s reasoning
Legal principles
- 01
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC)
A court may only interfere with a discretionary ruling if the decision is so unreasonable that no reasonable commissioner could have made it.
- 02
Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A)
In condonation applications, the applicant must provide a reasonable explanation for the delay and demonstrate good prospects of success.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the commissioner properly considered the relevant factors in the condonation application, including the explanation for the delay and the prospects of success. The applicant was warned of the referral period in the dismissal letter and did not require the disciplinary code to refer the matter. The disciplinary proceedings and outcome report indicated poor prospects of success. The review application did not meet the stringent test for interference with a discretionary ruling, and no basis existed for the court to set aside the commissioner's decision.
Obiter and limits
- A disciplinary code is not a prerequisite for confirming the nature of a dismissible offence.
- The applicant's poor prospects of success were evident from the disciplinary minutes and outcome report.
Court disposition
Review application dismissed.
- The application to review and set aside the condonation ruling is dismissed.
Source and reliance status
Labour Court Durban
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Durban
Judgment
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD IN DURBAN)
Case no: D 1782-17
Not Reportable
In the matter between:
LONDEKA
GWALA
Applicant
and
CCMA
First Respondent
SIZWE M NGUBANE N.O. Second
Respondent
CHICKENLAND (PTY) LTD t/a NANDOS Third Respondent
Heard: 2 July 2020
Judgment delivered: 5 August 2020
JUDGMENT
WHITCHER J
[1] The application to review and set aside a condonation ruling by the second respondent (“the commissioner”) is dismissed for the following reasons.
[2] The review application does not pass the stringent test for a review and the very circumscribed basis upon which a court is entitled to interfere with a discretionary ruling.
[3] It is evident from the ruling that the commissioner appreciated the factors that needed to be considered in a condonation application and applied his mind thereto.
[4] It cannot be said that no reasonable commissioner could have found that the applicant failed to provide a reasonable explanation for the delay and failed to demonstrate good prospects of success in the dismissal dispute.
[5] It is common cause that the applicant was warned in his dismissal letter that if he chooses to refer his matter to the CCMA, it must be done within 30 days.
[6] The applicant did not require the third respondent’s disciplinary code to refer his matter to the CCMA. In any event, one does not need a disciplinary code to confirm that the allegations proffered against the applicant constituted a dismissible offence.
[7] The minutes of the disciplinary proceedings and the outcome report indicate that the applicant has very poor prospects of success on the main charge.
[8] In the premises, the review application is dismissed.
________
Benita Whitcher
Judge of the Labour Court of South Africa
APPEARANCES:
APPLICANT:
Xaba Attorneys
dumixaba@xabainc.com
THIRD RESPONDENT: Guardian Employers Organisation
geoffc@geo.org.za
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