Netherburn Engineering CC t/a Netherburn Ceramics v Mudau and Others (CCT 01/09) [2009] ZACC 10; [2009] 6 BLLR 517 (CC) ; (2009) 30 ILJ 1521 (CC) ; 2010 (2) SA 269 (CC) ; 2009 (8) BCLR 779 (CC) (1 April 2009)

Netherburn Engineering CC t/a Netherburn Ceramics v Mudau and Others (CCT 01/09) [2009] ZACC 10; [2009] 6 BLLR 517 (CC) ; (2009) 30 ILJ 1521 (CC) ; 2010 (2) SA 269 (CC) ; 2009 (8) BCLR 779 (CC) (1 April 2009)

The Constitutional Court held that it was not in the interests of justice to determine the constitutionality of section 140(1) of the Labour Relations Act, as the provision had been repealed nearly seven years prior and replaced by CCMA rule 25(1), which is not identical. The Court found that any determination regarding section 140(1) would not affect pending proceedings or the interpretation of rule 25(1). Furthermore, more than ten years had elapsed since the dismissal of Ms Moabelo, and there was no evidence of a live dispute between the parties. The application was dismissed on the basis that no practical purpose would be served by adjudicating the constitutional issue in this case.

Citation
[2009] ZACC 10
Parties
Applicant: Netherburn Engineering CC t/a Netherburn Ceramics; Respondent: Robert Mudau N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Jane Moabelo
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
1 April 2009
Case Number
CCT 01/09
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court From the Labour Appeal Court
Outcome
Application for leave to appeal dismissed.
Judges
Langa, Moseneke, Cameron, Mokgoro, Ngcobo, Nkabinde, O'Regan, Sachs, Skweyiya, Van der Westhuizen, Yacoob
Legal Topics
Legal Representation in Arbitration, Unfair Dismissal, Constitutional Rights, Ccma Rules, Labour Relations Act, Interests of Justice
Labour Law Constitutional Law Legal Representation in Arbitration Unfair Dismissal Constitutional Rights Ccma Rules Labour Relations Act Interests of Justice

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Parties

Netherburn Engineering CC t/a Netherburn Ceramics

Applicant

Robert Mudau N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Jane Moabelo

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court From the Labour Appeal Court

Legal Issues

  1. 1 Whether section 140(1) of the Labour Relations Act is constitutional regarding legal representation in CCMA arbitration proceedings.
  2. 2 Whether it is in the interests of justice for the Constitutional Court to entertain the application given the repeal of section 140(1).
  3. 3 Whether there is a live dispute between the parties warranting constitutional determination.

Ratio Decidendi

The Constitutional Court held that it was not in the interests of justice to determine the constitutionality of section 140(1) of the Labour Relations Act, as the provision had been repealed nearly seven years prior and replaced by CCMA rule 25(1), which is not identical. The Court found that any determination regarding section 140(1) would not affect pending proceedings or the interpretation of rule 25(1). Furthermore, more than ten years had elapsed since the dismissal of Ms Moabelo, and there was no evidence of a live dispute between the parties. The application was dismissed on the basis that no practical purpose would be served by adjudicating the constitutional issue in this case.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • The application for leave to appeal is dismissed.
  • No order as to costs.