Masoga v Cellier and Others (JR2185/04) [2006] ZALC 89; (2007) 28 ILJ 155 (LC) (9 October 2006)

Masoga v Cellier and Others (JR2185/04) [2006] ZALC 89; (2007) 28 ILJ 155 (LC) (9 October 2006)

The commissioner committed a gross irregularity by dismissing the rescission application as defective without affording the applicant an opportunity to apply for condonation or to be heard on the issue. The CCMA's established practice is to inform parties when their applications are late and to allow them to apply for condonation. The commissioner deviated from this practice without justification. Furthermore, there was no evidence that the dismissal award was properly served on the applicant, which could affect the necessity for condonation. The failure to follow fair procedure vitiates the commissioner's ruling, and the matter must be reconsidered by a different commissioner, with the...

Citation
[2006] ZALC 89
Parties
Applicant: Mpiri Masoga; Respondent: Lance Cellier; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: UPSWU
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
9 October 2006
Case Number
JR2185/04
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; rescission ruling set aside; matter referred to CCMA for reconsideration before a different commissioner.
Judges
Francis
Legal Topics
Rescission of Award, Condonation, Gross Irregularity, Ccma Rules
Labour Law Civil Procedure Rescission of Award Condonation Gross Irregularity Ccma Rules

Case Brief

Summary, issues, holding and outcome

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Parties

Mpiri Masoga

Applicant

Lance Cellier

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

UPSWU

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner acted unreasonably in dismissing the rescission application solely due to the absence of a condonation application.
  2. 2 Whether the applicant was afforded a fair opportunity to be heard before his rescission application was dismissed as defective.
  3. 3 Whether the CCMA had a duty to inform the applicant of outstanding documents before dismissing the application.

Ratio Decidendi

The commissioner committed a gross irregularity by dismissing the rescission application as defective without affording the applicant an opportunity to apply for condonation or to be heard on the issue. The CCMA's established practice is to inform parties when their applications are late and to allow them to apply for condonation. The commissioner deviated from this practice without justification. Furthermore, there was no evidence that the dismissal award was properly served on the applicant, which could affect the necessity for condonation. The failure to follow fair procedure vitiates the commissioner's ruling, and the matter must be reconsidered by a different commissioner, with the...

Court Disposition

Application for review granted; rescission ruling set aside; matter referred to CCMA for reconsideration before a different commissioner.

Orders

  • The rescission ruling dated 25 June 2004 under case number GA6808-04 made by the first respondent is reviewed and set aside.
  • The dispute is referred to the second respondent (CCMA) for consideration before another commissioner other than the first respondent. The applicant should be afforded an opportunity to apply for condonation in terms of the CCMA rules. The third respondent may oppose the application if it deems necessary.