MLZ Construction and Supplies CC t/a Procam v Mafujane NO and Others (JR2238/16) [2019] ZALCJHB 249 (19 September 2019)
The First Respondent committed a material irregularity by failing to consider the correct degree of lateness and by disregarding the applicant's representations regarding prospects of success, which were incorporated by reference to the founding affidavit of the rescission application. This failure resulted in the...
Source-derived case information.
- Citation
- [2019] ZALCJHB 249
- Parties
- Applicant: MLZ Construction and Supplies CC t/a Procam; Respondent: T.S. Mafujane N.O.; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Taryn Sydne Makings
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR2238/16
- Procedural Posture
- Review Application / Application to Review and Set Aside Condonation Ruling to Rescission Application.
- Outcome
- Condonation ruling reviewed and set aside; matter remitted for proper determination before a different commissioner.
- Judges
- L. Raphulu
- Legal Topics
- Condonation, Rescission Application, Material Irregularity, Prospects of Success
Source-derived case record
Summary, issues, holding and outcome
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Parties
MLZ Construction and Supplies CC t/a Procam
Applicant
T.S. Mafujane N.O.
Respondent
The Commission for Conciliation, Mediation and Arbitration
Respondent
Taryn Sydne Makings
Respondent
Procedural Posture
Review Application / Application to Review and Set Aside Condonation Ruling to Rescission Application.
Legal Issues
- 1 Whether the First Respondent committed a material irregularity in considering the condonation application.
- 2 Whether the condonation ruling should be reviewed and set aside.
- 3 Whether the matter should be remitted for proper determination before a different commissioner.
Ratio Decidendi
The First Respondent committed a material irregularity by failing to consider the correct degree of lateness and by disregarding the applicant's representations regarding prospects of success, which were incorporated by reference to the founding affidavit of the rescission application. This failure resulted in the condonation application not being properly considered, warranting the review and setting aside of the condonation ruling and remittal of the matter for proper determination before a different commissioner.
Court Disposition
Condonation ruling reviewed and set aside; matter remitted for proper determination before a different commissioner.
Orders
- The condonation ruling is reviewed and set aside.
- The matter is remitted back to the Second Respondent for proper determination of the dispute before a commissioner other than the First Respondent.
Full Case Text
Judgment text and source record
37 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case no: JR 2238/16
In the matter between:
MLZ CONSTRUCTION AND SUPPLIES CC T/A PROCAM Applicant
and
t.s. mafujane n.o. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second
Respondent
TARYN SYDNE MAKINGS Third
Respondent
Heard: 28 February 2019
Delivered: 19 September 2019
Summary: Application to review and set aside condonation ruling to rescission application.
JUDGMENT
RAPHULU, AJ
[1] This is an application by the Applicant to review and set aside the First Respondent’s condonation ruling to the late filing of the Applicant’s rescission application.
[2] As required, prior to dealing with the rescission application, the First Respondent considered the condonation application to the rescission application and held that condonation should not be granted. As a consequence of this, if followed that the Second Respondent had no jurisdiction to consider the rescission application.
[3] In assessing a condonation application, it is trite law that the degree of lateness of the pleadings in question (in this case the rescission application), as well as the prospects of success on the main matter (in this case the rescission application), are material[1].
[4] In the present case, instead of examining the degree of lateness of the rescission application, the First Respondent focused on the lateness of the condonation application.
[5] In respect of prospects of success, the First Respondent held that the Applicant had not made representations in this respect. In doing this, the First Respondent disregarded the fact that the Applicant’s
condonation application specifically prays at paragraph 7.3 thereof, that the contents of the founding affidavit to the rescission
application be incorporated as part of the condonation application and that same should be regarded as specifically repeated in the condonation application.
[6] In light of the above, it is apparent to me that the First Respondent committed a material irregularity, and failed to consider material information, and that this led to the condonation application to the rescission application not being properly considered.
[7] In the results, I make the following order:
Order
1. The condonation ruling is reviewed and set aside.
2. The matter is remitted back to the Second Respondent for proper determination of the dispute before a commissioner other than the
First Respondent.
_______________________
L. Raphulu
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Snyman Attorneys
For the Third Respondent: Taryn Sydne Makings
[1] See: Melane v Santam 1962 (4) SA 531 (A).