Power M Security (Pty) Ltd v Azkim and Others (JR 336/21) [2021] ZALCJHB 221 (12 August 2021)

Power M Security (Pty) Ltd v Azkim and Others (JR 336/21) [2021] ZALCJHB 221 (12 August 2021)

The Labour Court found that the CCMA commissioner applied incorrect principles in refusing condonation for the late filing of the rescission application. The commissioner accepted that the delay was not excessive and excusable but failed to properly consider the interests of justice, particularly the applicant's assertion that it was not notified of the hearing due to an incorrect email address. This factor is material to the prospects of success in the rescission application. The court held that the exercise of discretion was interferable and condonation ought to have been granted. The dispute was remitted to the CCMA for determination of the rescission application by a different...

Citation
[2021] ZALCJHB 221
Parties
Applicant: Power M Security (Pty) Ltd; Respondent: Bunaya Azkim and Others
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
12 August 2021
Case Number
JR 336/21
Procedural Posture
Review Application / Review of CCMA Ruling Refusing Condonation and Rescission of Default Award
Outcome
The review application is upheld; the CCMA ruling refusing condonation is set aside and replaced with an order granting condonation. The dispute is remitted to the CCMA for determination of the rescission application by another commissioner.
Judges
G. N. Moshoana
Legal Topics
Condonation, Rescission of Default Award, Ccma Review, Interest of Justice
Labour Law Civil Procedure Condonation Rescission of Default Award Ccma Review Interest of Justice

Case Brief

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Parties

Power M Security (Pty) Ltd

Applicant

Bunaya Azkim and Others

Respondent

Procedural Posture

Review Application / Review of CCMA Ruling Refusing Condonation and Rescission of Default Award

Legal Issues

  1. 1 Whether the CCMA commissioner applied the correct principles in refusing condonation for the late filing of the rescission application.
  2. 2 Whether the applicant had prospects of success in the rescission application.
  3. 3 Whether the refusal of condonation was a proper exercise of discretion.

Ratio Decidendi

The Labour Court found that the CCMA commissioner applied incorrect principles in refusing condonation for the late filing of the rescission application. The commissioner accepted that the delay was not excessive and excusable but failed to properly consider the interests of justice, particularly the applicant's assertion that it was not notified of the hearing due to an incorrect email address. This factor is material to the prospects of success in the rescission application. The court held that the exercise of discretion was interferable and condonation ought to have been granted. The dispute was remitted to the CCMA for determination of the rescission application by a different...

Court Disposition

The review application is upheld; the CCMA ruling refusing condonation is set aside and replaced with an order granting condonation. The dispute is remitted to the CCMA for determination of the rescission application by another commissioner.

Orders

  • The ruling issued by Boitumelo Mokoena under case number GAJB9883-20 dated 15 February 2021 is reviewed and set aside.
  • Condonation for the late filing of the rescission application is granted.