Jusayo v Mudau N.O and Others (JR 1244/05) [2008] ZALC 34; [2008] 7 BLLR 668 (LC) ; (2008) 29 ILJ 2953 (LC) (26 March 2008)

Jusayo v Mudau N.O and Others (JR 1244/05) [2008] ZALC 34; [2008] 7 BLLR 668 (LC) ; (2008) 29 ILJ 2953 (LC) (26 March 2008)

The Court found that the Third Respondent's counter-review application was both out of time and barred by peremption, as its conduct in offering to pay the compensation awarded constituted acquiescence to the award. The explanation for late filing, based on a mistaken interpretation of procedural rules, was not accepted as a valid ground for condonation. Regarding the Applicant's review application, the Court held that the First Respondent failed to provide adequate reasons for refusing reinstatement and did not properly consider the criteria set out in Section 193(2) of the Labour Relations Act. This failure constituted a reviewable irregularity, justifying the setting aside of the award...

Citation
[2008] ZALC 34
Parties
Applicant: Nomonde Jusayo; Respondent: Robert Mudau N.O.; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Eskom Holdings Limited
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
26 March 2008
Case Number
JR 1244/05
Procedural Posture
Review Application / Judgment on Review and Condonation Applications
Outcome
The Applicant's amendment application is granted. The arbitration award is reviewed and set aside to the extent of the failure to address reinstatement. The issue of reinstatement is remitted to the CCMA for adjudication by a different arbitrator. The Third Respondent's counter-review application is dismissed. Costs...
Judges
B M Jammy
Legal Topics
Review of Arbitration Award, Condonation, Reinstatement, Compensation, Peremption, Variation of Award
Labour Law Civil Procedure Review of Arbitration Award Condonation Reinstatement Compensation Peremption Variation of Award

Case Brief

Summary, issues, holding and outcome

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Parties

Nomonde Jusayo

Applicant

Robert Mudau N.O.

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Eskom Holdings Limited

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation Applications

Legal Issues

  1. 1 Whether the arbitration award failed to properly address the issue of reinstatement of the Applicant.
  2. 2 Whether the Third Respondent's counter-review application should be condoned despite late filing.
  3. 3 Whether the Third Respondent's conduct amounted to peremption, barring it from contesting the award.

Ratio Decidendi

The Court found that the Third Respondent's counter-review application was both out of time and barred by peremption, as its conduct in offering to pay the compensation awarded constituted acquiescence to the award. The explanation for late filing, based on a mistaken interpretation of procedural rules, was not accepted as a valid ground for condonation. Regarding the Applicant's review application, the Court held that the First Respondent failed to provide adequate reasons for refusing reinstatement and did not properly consider the criteria set out in Section 193(2) of the Labour Relations Act. This failure constituted a reviewable irregularity, justifying the setting aside of the award...

Court Disposition

The Applicant's amendment application is granted. The arbitration award is reviewed and set aside to the extent of the failure to address reinstatement. The issue of reinstatement is remitted to the CCMA for adjudication by a different arbitrator. The Third Respondent's counter-review application is dismissed. Costs...

Orders

  • The application for amendment of the Applicant's Notice of Motion is granted.
  • The arbitration award made by the First Respondent on 13 April 2005, read with the order of 20 May 2005 refusing variation, is reviewed and set aside to the extent of the failure to deal with reinstatement.