Mafumba and Others v Commission for Conciliation Mediation and Arbitration and Others (JR2880/17) [2019] ZALCJHB 253 (2 September 2019)
- Citation
- [2019] ZALCJHB 253
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- Van Niekerk
- Case number
- JR2880/17
More details
- Court
- Labour Court Johannesburg
- Panel
- Van Niekerk
- Case number
- JR2880/17
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that there was a genuine dispute regarding the computation of the delay in referring the dismissal dispute to the CCMA. The arbitrator's calculation of 195 days was challenged by the applicants, who provided evidence that the delay was only 53 days. This significant discrepancy could have materially affected the outcome of the condonation application. In the interests of justice, the court held that the ruling should be reviewed and set aside, and the matter remitted to the CCMA for rehearing before a different commissioner. The court made it clear that its decision was based solely on the dispute regarding the period of delay and not on any other findings by the arbitrator.
Court disposition
Ruling reviewed and set aside; matter remitted for rehearing before a different commissioner.
Orders
- The ruling issued by the second respondent on 5 November 2017 is reviewed and set aside.
- The matter is remitted to the second respondent for rehearing before a commissioner other than the second respondent.
02
Material facts
Parties
Lunga Alfred Mafumba & 20 Others
Applicant Counsel: Ndumiso Voyi AttorneysCommission for Conciliation Mediation and Arbitration
RespondentCommissioner Elmien Wehncke
RespondentKit Kat Group
RespondentOutsourcing For You
Respondent03
Procedural history
Posture
Review Application / Judgment on Review of Condonation Ruling
04
Questions and positions
Legal issues
- 01
Whether the arbitrator correctly computed the period of delay in the referral of the dismissal dispute.
- 02
Whether the interests of justice require the condonation ruling to be set aside and remitted for rehearing.
Party arguments
- Applicant
- The applicants contend that the arbitrator incorrectly calculated the delay as 195 days, whereas the actual delay was 53 days. They argue that this miscalculation materially affected the outcome of the condonation application and that the interests of justice require the ruling to be set aside.
- Respondent
- No argument was presented as the application was unopposed.
05
Court’s reasoning
Legal principles
- 01
Labour Relations Act, 66 of 1995
A condonation application must be determined on a correct computation of the period of delay, and a material error in calculation may affect the fairness of the outcome.
- 02
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)
The interests of justice require that a ruling based on a disputed or incorrect factual premise be set aside and the matter reheard.
06
Ratio, limits and disposition
Ratio decidendi
The court found that there was a genuine dispute regarding the computation of the delay in referring the dismissal dispute to the CCMA. The arbitrator's calculation of 195 days was challenged by the applicants, who provided evidence that the delay was only 53 days. This significant discrepancy could have materially affected the outcome of the condonation application. In the interests of justice, the court held that the ruling should be reviewed and set aside, and the matter remitted to the CCMA for rehearing before a different commissioner. The court made it clear that its decision was based solely on the dispute regarding the period of delay and not on any other findings by the arbitrator.
Obiter and limits
- The court did not consider any of the arbitrator's other findings as a basis for setting aside the ruling.
- The interests of justice are paramount when a material factual dispute exists in procedural matters.
Court disposition
Ruling reviewed and set aside; matter remitted for rehearing before a different commissioner.
- The ruling issued by the second respondent on 5 November 2017 is reviewed and set aside.
- The matter is remitted to the second respondent for rehearing before a commissioner other than the second respondent.
Source and reliance status
Labour Court Johannesburg
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 Johannesburg
Judgment
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE NO: JR 2880/17
In the matter between:
LUNGA ALFRED MAFUMBA & 20 OTHERS Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
ELMIEN WEHNCKE
Second Respondent
KIT
KAT GROUP Third
Respondent
OUTSOURCING
FOR YOU
Fourth Respondent
Heard: 29 August 2019
Judgment delivered: 2 September 2019
VAN NIEKERK J
[1] This is an unopposed application to review and set aside a ruling made by the second respondent on 8 December 2017, when she refused to condone the late referral of a dismissal dispute.
[2] The ruling records the evidence and argument. In essence, the arbitrator concluded that the delay, which she computed as 195 days, was excessive and that the explanation for the delay was unsatisfactory.
[3] The essence of the review application is that the delay was not 195 days; the applicants compute the delay as 53 days. In a supplementary affidavit filed in the review proceedings, together with the referral form, the applicants challenge the computation of the period of delay. I am satisfied that the affidavit calls into question the period of delay referred to in the ruling under review. The difference between the delay computed by the arbitrator and that by the applicants is significant, and may well have a bearing on the outcome of the application for condonation.
[4] In my view, the interests of justice require that the ruling be reviewed and set aside, and that the matter be remitted to the CCMA for rehearing before a different commissioner. To be clear, my decision is based solely on what appears to be a genuine dispute as to the extent of the delay, and none of the arbitrator’s other findings are the basis for my decision to set aside the ruling.
I make the following order:
1. The ruling issued by the second respondent on 5 November 2017 is reviewed and set aside.
2. The matter is remitted to the second respondent for rehearing before a commissioner other than the second respondent.
Andre van Niekerk
Judge
REPRESENTATION
For the applicant: Ndumiso Voyi Attorneys
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