NTM obo Mojela and Others v Freshmark (Pty) Limited (JS 1106-18) [2021] ZALCJHB 85 (1 June 2021)

NTM obo Mojela and Others v Freshmark (Pty) Limited (JS 1106-18) [2021] ZALCJHB 85 (1 June 2021)

The Court found that the applicant failed to serve a signed copy of the statement of claim on the respondent, as required by Labour Court Rule 6(1)(c). The unsigned document provided to the respondent did not constitute valid service, and therefore no valid referral was before the Court. Furthermore, the referral was made outside the 90-day period prescribed by section 191(11)(i) of the Labour Relations Act, as the definition of 'day' in the Act refers to calendar days. The applicant did not seek condonation for the late referral. As a result, the Labour Court lacked jurisdiction to entertain the matter, and the referral was struck from the roll with costs.

Citation
[2021] ZALCJHB 85
Parties
Applicant: NTM obo Mojela & 16 Others; Respondent: Freshmark (Pty) Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
1 June 2021
Case Number
JS 1106-18
Procedural Posture
Labour Court Referral / Interlocutory Points in Limine
Outcome
Matter struck from the roll with costs due to lack of valid service and late referral.
Judges
F Coetzee
Legal Topics
Service of Process, Jurisdiction, Late Referral, Condonation, Labour Court Rules
Labour Law Civil Procedure Service of Process Jurisdiction Late Referral Condonation Labour Court Rules

Case Brief

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Parties

NTM obo Mojela & 16 Others

Applicant

Freshmark (Pty) Limited

Respondent

Procedural Posture

Labour Court Referral / Interlocutory Points in Limine

Legal Issues

  1. 1 Whether the applicant served a signed copy of the statement of claim on the respondent as required by Labour Court Rule 6(1)(c).
  2. 2 Whether the referral to the Labour Court was made within the 90-day period prescribed by section 191(11)(i) of the Labour Relations Act.
  3. 3 Whether the Labour Court has jurisdiction to entertain the referral given the alleged late service and filing.

Ratio Decidendi

The Court found that the applicant failed to serve a signed copy of the statement of claim on the respondent, as required by Labour Court Rule 6(1)(c). The unsigned document provided to the respondent did not constitute valid service, and therefore no valid referral was before the Court. Furthermore, the referral was made outside the 90-day period prescribed by section 191(11)(i) of the Labour Relations Act, as the definition of 'day' in the Act refers to calendar days. The applicant did not seek condonation for the late referral. As a result, the Labour Court lacked jurisdiction to entertain the matter, and the referral was struck from the roll with costs.

Court Disposition

Matter struck from the roll with costs due to lack of valid service and late referral.

Orders

  • The applicant has not served upon the respondent a signed copy of the statement of case and has not made a valid referral to the Labour Court.
  • The purported service and filing of the statement of claim occurred outside of the 90-day period and for that reason the Court also does not have jurisdiction to entertain the referral.