SAMWU and Others v Commission for Conciliation Mediation and Arbitration and Another (J 2448/13) [2013] ZALCJHB 303; (2014) 35 ILJ 2011 (LC) (21 November 2013)

SAMWU and Others v Commission for Conciliation Mediation and Arbitration and Another (J 2448/13) [2013] ZALCJHB 303; (2014) 35 ILJ 2011 (LC) (21 November 2013)

The Labour Court held that the withdrawal of the first referral was akin to an order of absolution from the instance and did not deprive the CCMA of jurisdiction to enrol the second referral for arbitration. The doctrine of election is a defence to be raised at arbitration and does not affect jurisdiction. The pending review application regarding the first referral does not render the second referral res judicata or lis pendens, nor does it constitute an adequate alternative remedy. The CCMA is therefore compelled to set down the applicants' condonation application in respect of the second referral for hearing. Costs were not awarded to any party due to the circumstances of the litigation.

Citation
[2013] ZALCJHB 303
Parties
Applicant: SAMWU; Applicant: M Qiqimane and 24 others; Respondent: CCMA; Respondent: Zenzeleni Cleaning and Transport Services CC
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
21 November 2013
Case Number
J 2448/13
Procedural Posture
Urgent Application / Application for Mandamus to Compel CCMA to Enrol Condonation Application for Fresh Referral
Outcome
Application granted. The CCMA is directed to set down the applicants' condonation application for hearing. No order as to costs.
Judges
Steenkamp
Legal Topics
Unfair Dismissal, Mandamus, Withdrawal of Referral, Condonation, Jurisdiction, Doctrine of Election
Labour Law Civil Procedure Unfair Dismissal Mandamus Withdrawal of Referral Condonation Jurisdiction Doctrine of Election

Case Brief

Summary, issues, holding and outcome

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Parties

SAMWU

Applicant

M Qiqimane and 24 others

Applicant

CCMA

Respondent

Zenzeleni Cleaning and Transport Services CC

Respondent

Procedural Posture

Urgent Application / Application for Mandamus to Compel CCMA to Enrol Condonation Application for Fresh Referral

Legal Issues

  1. 1 Whether the CCMA must enrol the applicants' condonation application and second referral for arbitration.
  2. 2 Whether the applicants are bound by their election to withdraw the first referral.
  3. 3 Whether the pending review application affects the CCMA's jurisdiction to hear the second referral.

Ratio Decidendi

The Labour Court held that the withdrawal of the first referral was akin to an order of absolution from the instance and did not deprive the CCMA of jurisdiction to enrol the second referral for arbitration. The doctrine of election is a defence to be raised at arbitration and does not affect jurisdiction. The pending review application regarding the first referral does not render the second referral res judicata or lis pendens, nor does it constitute an adequate alternative remedy. The CCMA is therefore compelled to set down the applicants' condonation application in respect of the second referral for hearing. Costs were not awarded to any party due to the circumstances of the litigation.

Court Disposition

Application granted. The CCMA is directed to set down the applicants' condonation application for hearing. No order as to costs.

Orders

  • The applicants’ non-compliance with the time periods prescribed in the rules of the Labour Court is condoned and the application is heard as one of urgency.
  • The CCMA (the first respondent) is directed to set down the applicants’ condonation application in respect of the referral dated 4 April 2013 for hearing.