Mathole v Governing Body of the Commission for Conciliation, Mediation and Arbitration and Others (Reasons) (J 15/2023) [2023] ZALCJHB 143 (10 May 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: J 15/2023

In the matter between:

EMPHRAIM MATHOLE Applicant And GOVERNING BODY OF THE COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent NATIONAL DIRECTOR C. MORAJANE Third Respondent JIMMY LOOTS Forth Respondent PIETER VENTER Fifth Respondent STEVEN PIENAAR Sixth Respondent WILLEM KOEKMOER Seventh Respondent SIPHOKAZI MAY Eighth Respondent SARAH MODISE Ninth Respondent NELSIWE MAHLANGU Tenth Respondent JASMINE JOSEPH Eleventh Respondent SETLAGO MORWA Twelfth Respondent STEPHEN MOLAPO Thirteenth Respondent RICHARD BYRNE Fourteenth Respondent PRINCE KEKANA Fifthteenth Respondent MINISTER OF EMPLOYMENT AND LABOUR Sixteenth Respondent

Decided in Chambers

Delivered: 10 May 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 10 May 2023.)

REASONS FOR ORDER

VAN NIEKERK, J

[1] The applicant has requested reasons for an order made on 8 March 2023, when his application was removed from the urgent roll for lack of proper service. For reasons that are not apparent, the request was filed on 10 March 2023 but made available to me only today, 10 May 2023.

[2] The application had been postponed on 1 March 2023, to 8 March 2023. The applicant had cited 16 respondents, including the governing body of the CCMA, the national director of the CCMA, various other persons who appear to be identified as commissioners of the CCMA, and the Minister of Employment and Labour.

[3] Service in the Labour Court is regulated by the Rules, the Practice Manual and Directives. In regard to service by email (not recognised by the Rules) the Judge President has permitted service by email, on condition that the person who effected service files an affidavit

confirming that the address to which the email was sent was the correct email address of the addressee, that the party to whom the email was addressed telephonically confirmed receipt of the email and any attachments. Notwithstanding these provisions, the party effecting the services required to file the original hard copies of any process with the registrar within 10 days of the process being served by email.

[4] The court file disclosed that affidavit of service deposed by the applicant on 7 March 2023. In the affidavit, the applicant states that he had filed various documents, including the order of 1 March 2023 ‘by email and delivery’. Attached to the affidavit was an email addressed by the applicant to various email addresses on 6 March 2023. Also attached was a filing sheet which indicated ‘Service of court order and draft order’ on 6 March 2023 bearing an acknowledgment of receipt by the CCMA and a reception at the Department of Employment and Labour, both dated 6 March 2023.

[5] In respect of the application itself, enrolled for hearing on 1 March 2023, and affidavit of service deposed by the applicant states that the application was served ‘by way of email on the 13 – February – 2023 to the respondents.’ Attached was a transmission for indicating an email sent by the applicant to various email addresses. The affidavit disclosed service by hand on the CCMA on 15 February 2023, and on the Department of Employment and Labour on 16 February 2023.

[6] When the matter was called on 8 March 2023, I was concerned that at least some of the respondents were unaware of the application or of the order postponing the hearing to that date. In particular, I was concerned that the applicant had failed to comply with the Judge President’s directive on service by email and in particular, that he had failed to file an affidavit as required confirming receipt of the email by the intended addressee. Further, while service on the CCMA had been effected by hand, it was not clear to me in what capacity certain of the individual respondents associated with the CCMA. Certain of the individual respondents were clearly employees of the CCMA (for example, the national director and case management officers); others are simply reflected as ‘Unknown’. Further, in the case of the 16th respondent, the minister, there had been no service on the state attorney as required by the applicable Rule. There was no evidence of any service on the office of the state attorney as required by Rule 4 (b)(vi). While it may be correct, as the applicant now points out, that he subsequently ‘found’ a notice of intention to oppose in respect of the first and second respondents, the notice is dated 7 March 2023 but bears no stamp issued by the registrar. I do not recall the notice being in the court file. The notice of intention to oppose does not, in any event, cure the defects in service in respect of the 3rd to 16th respondents. To the extent that the applicant suggests that a subsequent notice of intention to oppose has been filed on behalf of the 1st to 15th respondents, that notice is dated 27 March 2023, almost three weeks after the date on which the order was made.

[7] For these reasons, I removed the application from the roll and advised the applicant to ensure that proper service was to be effected before re-enrolling the matter.

André van Niekerk

Judge of the Labour Court of South Africa