National Transport Movement v Commissioner for Conciliation, Mediation and Arbitration and Others (JR 2095/16) [2021] ZALCJHB 217 (6 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 2095/16

In the matter between:

THE NATIONAL TRANSPORT MOVEMENT Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First

Respondent

COMMISSIONER SUNDUZA MADONSELA N.O Second Respondent

MASILO ISAAC MALEMA Third

Respondent

Heard: 04 August 2021 (decided on paper)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 06 August 2021.

Summary: Review of condonation and rescission ruling – the Commissioner judicially exercised her discretion – the decision was not influenced by wrong facts or principles.

JUDGMENT

NKUTHA-NKONTWANA, J

[1] This is an unopposed review application in terms of section 158(1)(g) of the Labour Relations Act[1] (LRA). The applicant impugns the rescission ruling issued by the second respondent (Commissioner) under case number GATW10374-19 dated on 06 December 2020 under the auspices of the Commission for Conciliation Mediation and Arbitration (CCMA). The Commissioner

upheld the third respondent’s application for condonation and rescission.

[2] The third respondent was employed by the applicant and was dismissed on 31 May 2019. Displeased with his dismissal, he referred a dispute to the CCMA. He failed to attend the con/orb on 22 July 2019 and as result his claim was dismissed. Consequently, he successfully applied for the rescission of the ruling that dismissed his claim, hence these proceedings.

[3] It is apparent ex facie the rescission ruling that the Commissioner was alive to the issues before her. She was satisfied with the explanation for the delay in launching the rescission application and found the reason for the third respondent’s default reasonable.

[4] It is trite that the exercise of discretion by the Commissioner can be interfered with only if it was not exercised judicially, or where decision influenced by wrong facts or principles, or where decision reached was one that could not reasonably have been made by court properly directing itself to all relevant facts and principles.[2] In Cowley v Anglo Platinum & Others,[3] referred to by Mr Van As, the LAC stated that:

‘…when the Commissioner is endowed with a discretion this court will be very slow to interfere with the exercise of that discretion. The Commissioner’s exercise of discretion would be upset on the review if the applicant shows, inter alia, that the Commissioner committed a misdirection or irregularity, or that he or she acted capriciously, or on the wrong principle or in bad faith or unfairly or that the exercise seeing the discretion the Commissioner reached a decision that a reasonable decision-maker

could not reach.’ (Emphasis added)

[5] In the present instance, the applicant failed to show any irregularity or capriciousness on the part of the Commissioner. In my view, this application is flagrantly unmeritorious. In fact, it borders on the abuse of court process as the impugned ruling is not dispositive of the dispute before the CCMA. The applicant clearly launched this application in order to delay the final determination of the dispute and to the prejudice of the third respondent, an individual employee.

[6] n all the circumstances, I am satisfied that the Commissioner exercised his discretion judicially by granting condonation and his decision to grant rescission is also beyond reproach.

[7] Accordingly, the review application is dismissed.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC) at para 27.

[3] [2016] JOL 35884 (LC) at para 21.