NUM obo Magagula v Commission for Conciliation, Mediation and Arbitration and Others (JR555/14) [2016] ZALCJHB 331 (26 August 2016)

NUM obo Magagula v Commission for Conciliation, Mediation and Arbitration and Others (JR555/14) [2016] ZALCJHB 331 (26 August 2016)

The court found that the order remitting the matter to the CCMA was made without notice to the respondent and without considering the respondent's opposition. The Practice Manual does not provide for the procedure to follow when a party opposes a request for remittal, nor does it set time limits for opposition. The order was made in chambers without the respondent's knowledge, and material facts regarding the parties' disagreement on remittal and record reconstruction were not brought to the judge's attention. The court held that, in terms of Rule 16A and established case law, an order erroneously made in the absence of an affected party must be rescinded without further enquiry....

Citation
[2016] ZALCJHB 331
Parties
Applicant: NUM obo M Magagula; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Monde Boyce N.O; Respondent: Harmony Gold Mining
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 August 2016
Case Number
JR555/14
Procedural Posture
Review Application / Application for Rescission of Remittal Order
Outcome
The order made by the court on 28 October 2014 is rescinded.
Judges
Molahlehi
Legal Topics
Rescission of Order, Review Proceedings, Practice Manual Directives, Incomplete Record, Remittal to Ccma
Labour Law Civil Procedure Rescission of Order Review Proceedings Practice Manual Directives Incomplete Record Remittal to Ccma

Case Brief

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Parties

NUM obo M Magagula

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Monde Boyce N.O

Respondent

Harmony Gold Mining

Respondent

Procedural Posture

Review Application / Application for Rescission of Remittal Order

Legal Issues

  1. 1 Was the order remitting the matter to the CCMA erroneously made in the absence of the affected party?
  2. 2 Does the Labour Court have the power to remit a matter to the CCMA for rehearing on the basis of an incomplete record without first reviewing and setting aside the arbitration award?
  3. 3 Is clause 11.2.4 of the Practice Manual ultra vires to the extent that it grants the power to remit a matter to the CCMA on the ground of an incomplete record?

Ratio Decidendi

The court found that the order remitting the matter to the CCMA was made without notice to the respondent and without considering the respondent's opposition. The Practice Manual does not provide for the procedure to follow when a party opposes a request for remittal, nor does it set time limits for opposition. The order was made in chambers without the respondent's knowledge, and material facts regarding the parties' disagreement on remittal and record reconstruction were not brought to the judge's attention. The court held that, in terms of Rule 16A and established case law, an order erroneously made in the absence of an affected party must be rescinded without further enquiry....

Court Disposition

The order made by the court on 28 October 2014 is rescinded.

Orders

  • The order made by this court on 28 October 2014 is rescinded.
  • No order as to costs.