Moraba and Others v Ngwenya NO and Others (JR1893/20) [2021] ZALCJHB 427 (5 November 2021)

Moraba and Others v Ngwenya NO and Others (JR1893/20) [2021] ZALCJHB 427 (5 November 2021)

The court found that the consolidation of the deemed permanent employment dispute and the unfair dismissal dispute resulted in the former being subsumed into the latter, rendering its subsequent withdrawal legally ineffective. The applicants were therefore entitled to lead evidence relevant to section 198B in the unfair dismissal arbitration, as the factual and legal issues were inextricably linked. The commissioner erred in barring such evidence, and the Labour Court was justified in intervening prior to the completion of arbitration to prevent prejudice and delay. The ruling of the commissioner was reviewed and set aside, and substituted with an order allowing the evidence and directing...

Citation
[2021] ZALCJHB 427
Parties
Applicant: Lesley Leseba Moraba; Applicant: Joslate Misima Mahosi; Applicant: Macdonald Monoge; Applicant: Musa Mabunda; Applicant: Thandi Michel Nkwinika; Applicant: Donald Makgare; Applicant: Morufe Given Marota; Applicant: Thabo Sina Molefe; Applicant: Shaphu Angela Madisha; Applicant: Johannes Shiburi; Applicant: Seishane Corney Mokwana; Applicant: Puseletso Emmarencia Lebyana; Applicant: Nakedi Kobe; Applicant: Mokgadi Henly Hlako; Applicant: Cedric Khoza; Applicant: Wendy Mqoboli; Applicant: Busisiwe Khoza; Applicant: Nico Seema; Respondent: Dumisani Ngwenya N.O; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Pioneer Foods Groceries
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 November 2021
Case Number
JR1893/20
Procedural Posture
Review Application / Review of CCMA Interlocutory Ruling Prior to Arbitration
Outcome
Commissioner's ruling reviewed and set aside; substituted with order allowing evidence and expedited arbitration.
Judges
M I Mangena
Legal Topics
Unfair Dismissal, Fixed Term Contracts, Consolidation of Disputes, Pre Arbitration Minutes, Admissibility of Evidence
Labour Law Civil Procedure Unfair Dismissal Fixed Term Contracts Consolidation of Disputes Pre Arbitration Minutes Admissibility of Evidence

Case Brief

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Parties

Lesley Leseba Moraba

Applicant

Joslate Misima Mahosi

Applicant

Macdonald Monoge

Applicant

Musa Mabunda

Applicant

Thandi Michel Nkwinika

Applicant

Donald Makgare

Applicant

Morufe Given Marota

Applicant

Thabo Sina Molefe

Applicant

Shaphu Angela Madisha

Applicant

Johannes Shiburi

Applicant

Seishane Corney Mokwana

Applicant

Puseletso Emmarencia Lebyana

Applicant

Nakedi Kobe

Applicant

Mokgadi Henly Hlako

Applicant

Cedric Khoza

Applicant

Wendy Mqoboli

Applicant

Busisiwe Khoza

Applicant

Nico Seema

Applicant

Dumisani Ngwenya N.O

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Pioneer Foods Groceries

Respondent

Procedural Posture

Review Application / Review of CCMA Interlocutory Ruling Prior to Arbitration

Legal Issues

  1. 1 Whether the applicants are entitled to lead evidence relating to the deemed permanent employment dispute after its purported withdrawal.
  2. 2 Whether the consolidation of disputes subsumed the deemed referral into the unfair dismissal dispute, rendering its withdrawal ineffective.
  3. 3 Whether the commissioner erred in barring the applicants from presenting evidence relevant to section 198B in the unfair dismissal arbitration.

Ratio Decidendi

The court found that the consolidation of the deemed permanent employment dispute and the unfair dismissal dispute resulted in the former being subsumed into the latter, rendering its subsequent withdrawal legally ineffective. The applicants were therefore entitled to lead evidence relevant to section 198B in the unfair dismissal arbitration, as the factual and legal issues were inextricably linked. The commissioner erred in barring such evidence, and the Labour Court was justified in intervening prior to the completion of arbitration to prevent prejudice and delay. The ruling of the commissioner was reviewed and set aside, and substituted with an order allowing the evidence and directing...

Court Disposition

Commissioner's ruling reviewed and set aside; substituted with order allowing evidence and expedited arbitration.

Orders

  • The ruling of commissioner Ngwenya dated 24 September 2020, issued under the auspices of the CCMA in case number GAEK 3707-19 is reviewed and set aside.
  • The above ruling is substituted with an order that the point in limine is dismissed.