NUM v Orleyn and Others (JR1694/02) [2002] ZALC 97; (2003) 24 ILJ 577 (LC) (19 November 2002)

NUM v Orleyn and Others (JR1694/02) [2002] ZALC 97; (2003) 24 ILJ 577 (LC) (19 November 2002)

The court held that the CCMA has jurisdiction to conciliate the dispute as all jurisdictional prerequisites under the LRA were met. The lawfulness of the applicant's demand for a 13 day mine shutdown is not a jurisdictional prerequisite for conciliation. The commissioner's refusal to conciliate based on the alleged unlawfulness of the demand was unreasonable and unjustifiable, amounting to a gross irregularity. The lawfulness of the demand is to be determined by the inspector under the Mine Health and Safety Act, not by the commissioner or the court in this review. The dispute remains live and is not academic, and the review application succeeds.

Citation
[2002] ZALC 97
Parties
Applicant: NUM; Respondent: Commissioner T Orleyn; Respondent: The Commission for Conciliation, Mediation & Arbitration; Respondent: Kloof Gold Mining Company Limited
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
19 November 2002
Case Number
JR1694/02
Procedural Posture
Review Application / Judgment on Urgent Review Application
Outcome
Review application succeeds; commissioner's ruling set aside; each party to pay its own costs.
Judges
Pillay D
Legal Topics
Jurisdiction of Ccma, Conciliation Prerequisites, Lawfulness of Demand, Mine Health and Safety Act, Collective Bargaining
Labour Law Civil Procedure Jurisdiction of Ccma Conciliation Prerequisites Lawfulness of Demand Mine Health and Safety Act Collective Bargaining

Case Brief

Summary, issues, holding and outcome

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Parties

NUM

Applicant

Commissioner T Orleyn

Respondent

The Commission for Conciliation, Mediation & Arbitration

Respondent

Kloof Gold Mining Company Limited

Respondent

Procedural Posture

Review Application / Judgment on Urgent Review Application

Legal Issues

  1. 1 Whether the CCMA has jurisdiction to conciliate the dispute regarding the 13 day mine shutdown.
  2. 2 Whether the lawfulness of the applicant's demand is a jurisdictional prerequisite for conciliation.
  3. 3 Whether the commissioner's ruling declining jurisdiction was reasonable and justifiable.

Ratio Decidendi

The court held that the CCMA has jurisdiction to conciliate the dispute as all jurisdictional prerequisites under the LRA were met. The lawfulness of the applicant's demand for a 13 day mine shutdown is not a jurisdictional prerequisite for conciliation. The commissioner's refusal to conciliate based on the alleged unlawfulness of the demand was unreasonable and unjustifiable, amounting to a gross irregularity. The lawfulness of the demand is to be determined by the inspector under the Mine Health and Safety Act, not by the commissioner or the court in this review. The dispute remains live and is not academic, and the review application succeeds.

Court Disposition

Review application succeeds; commissioner's ruling set aside; each party to pay its own costs.

Orders

  • The application for amendment of the citation of the third respondent is granted.
  • An order is granted in terms of paragraphs 1, 2 and 3 of the notice of motion.