Ndokweni v Game Stores and Another (D847/2000) [2001] ZALC 34; [2001] 6 BLLR 643 (LC); (2001) 22 ILJ 1398 (LC) (1 March 2001)

Ndokweni v Game Stores and Another (D847/2000) [2001] ZALC 34; [2001] 6 BLLR 643 (LC); (2001) 22 ILJ 1398 (LC) (1 March 2001)

The Labour Court held that the commissioner was not obliged to issue a certificate of non-resolution under section 135(5) of the LRA when the applicant failed to attend the conciliation, as non-attendance may reasonably be inferred as abandonment or withdrawal of the referral. The practice, reflected in rule 7.7 of...

Source-derived case information.

Citation
[2001] ZALC 34
Parties
Applicant: Philip Ndokweni; Respondent: Game Stores; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: N C Cahill N O
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 March 2001
Case Number
D847/2000
Procedural Posture
Review Application / Review of CCMA Commissioner's Refusal to Grant Condonation for Late Referral After Non Attendance at Conciliation.
Outcome
Application for review dismissed; no order as to costs.
Judges
Pillay
Legal Topics
Condonation, Conciliation Procedure, Ultra Vires, Administrative Action, Written Reasons, Unfair Dismissal
Labour Law Civil Procedure Condonation Conciliation Procedure Ultra Vires Administrative Action Written Reasons Unfair Dismissal

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Philip Ndokweni

Applicant

Game Stores

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

N C Cahill N O

Respondent

Procedural Posture

Review Application / Review of CCMA Commissioner's Refusal to Grant Condonation for Late Referral After Non Attendance at Conciliation.

Legal Issues

  1. 1 Whether the commissioner was obliged to issue a certificate of non-resolution under section 135(5) of the LRA when the applicant failed to attend conciliation.
  2. 2 Whether the commissioner's refusal to grant condonation for late referral was ultra vires or procedurally unfair.
  3. 3 Whether the commissioner provided adequate written reasons for dismissing the condonation application as required by section 33 of the Constitution.

Ratio Decidendi

The Labour Court held that the commissioner was not obliged to issue a certificate of non-resolution under section 135(5) of the LRA when the applicant failed to attend the conciliation, as non-attendance may reasonably be inferred as abandonment or withdrawal of the referral. The practice, reflected in rule 7.7 of the CCMA rules, of treating non-attendance as abandonment and requiring a fresh referral with condonation, was not ultra vires and filled a procedural gap in the legislation. The commissioner acted bona fide and within his mandate to resolve disputes effectively. The written reasons provided, though brief and pro forma, satisfied the requirements of section 33 of the...

Court Disposition

Application for review dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • There is no order as to costs.