Sun International (South Africa) Limited v Commision For Conciliation Mediation And Arbitration and Others (J678/98) [1999] ZALC 51 (7 April 1999)
The court held that the CCMA commissioner acted irregularly by issuing a certificate of non-resolution without first considering whether condonation should be granted for the late referral of the dismissal dispute. The failure to address condonation deprived the CCMA of jurisdiction to entertain the conciliation...
Source-derived case information.
- Citation
- [1999] ZALC 51
- Parties
- Applicant: Sun International South Africa Limited; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Second Respondent; Respondent: Third Respondent; Respondent: Fourth Respondent; Respondent: Fifth Respondent; Respondent: Sixth Respondent
- Court
- Labour Court
- Jurisdiction
- South Africa
- Case Number
- J678/98
- Procedural Posture
- Review Application / Judgment
- Outcome
- Certificate of non-resolution issued by the CCMA set aside; CCMA ordered to consider condonation application afresh.
- Judges
- Basson
- Legal Topics
- Condonation, Jurisdiction of Ccma, Late Referral, Conciliation Certificate, Review of Arbitration
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sun International South Africa Limited
Applicant
Commission for Conciliation, Mediation and Arbitration
Respondent
Second Respondent
Respondent
Third Respondent
Respondent
Fourth Respondent
Respondent
Fifth Respondent
Respondent
Sixth Respondent
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the CCMA had jurisdiction to issue a certificate of non-resolution when the referral was out of time.
- 2 Whether the commissioner was required to consider condonation before issuing the certificate.
- 3 Whether the failure to consider condonation constituted a gross irregularity justifying review.
Ratio Decidendi
The court held that the CCMA commissioner acted irregularly by issuing a certificate of non-resolution without first considering whether condonation should be granted for the late referral of the dismissal dispute. The failure to address condonation deprived the CCMA of jurisdiction to entertain the conciliation proceedings. As a result, the certificate was issued without proper authority and must be set aside on review. The court ordered that the CCMA must consider any condonation application afresh and on its merits before proceeding further.
Court Disposition
Certificate of non-resolution issued by the CCMA set aside; CCMA ordered to consider condonation application afresh.
Orders
- The certificate issued by the second respondent in terms of section 135(5)(a) of the Labour Relations Act, dated 4 November 1997, is reviewed and set aside.
- The first respondent is ordered to consider afresh and on its merits any application for condonation brought or persisted in by the fifth and sixth respondents regarding the failure to comply with the 30-day time period in section 191(1) of the Labour Relations Act.
Full Case Text
Judgment text and source record
27 paragraphs
JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NUMBER: J678/98
Reportable: No DATE: 1999-04-07
Of interest: No
In the matter of:
SUN INTERNATIONAL SOUTH AFRICA LIMITED Applicant
and
CCMA AND OTHERS Respondents
J U D G M E N T
BASSON, J:
The fifth and the sixth respondents were dismissed on 7 and 8 July 1997. The internal procedures pertaining to their dismissal (the appeals) took place on 28 July 1997 and the internal dispute procedures came to an end on 19 September 1997.
However, the dismissals on 7 and 8 July 1997 were not suspended by reason of these internal proceedings.
The operative dates of the dismissals are therefore 7 and 8 July 1997.
These dismissal disputes where referred to the Commission for Conciliation, Mediation and Arbitration (âthe CCMAâ) on 8 October 1997, that is, approximately two months out of time having regard to the provisions of section 191(1) of the Labour Relations Act, 66 of 1995 (âthe Actâ).
The conciliation proceedings took place on 4 November 1997. However, the issue of condonation for this late referral was not dealt with by the first respondent, that is the CCMA, through its commissioner, the second respondent. Nevertheless, the second respondent issued the certificate to the effect that the dispute remains unresolved on 4 November 1997.
The matter proceeded to arbitration after some time and extensions and postponements on 16 March 1998. The arbitrator of the CCMA, the third respondent, did not deal with the matter as he was of the view that the said certificate had not been correctly issued.
The applicant, Sun International South Africa Limited, accordingly took the issuing of the certificate on review, filing its papers on 1 April 1998.
The decision taken by the second respondent to issue the certificate in the absence of considering the merits of a possible condonation application, clearly constituted a gross irregularity in the conciliation proceedings.
Furthermore, it was incumbent upon the second respondent to consider the issue of condonation as it determines the jurisdiction of the CCMA to deal with this matter or dispute.
Accordingly the issuing of the certificate did not take place properly but it took place in the absence of jurisdiction to entertain conciliation proceedings and therefore falls to be set aside on review.
I make the following order:
1. The certificate issued by the second respondent in the matter between the applicant and the fourth, fifth and sixth respondents in terms of the provisions of section 135(5)(a) of the Labour Relations Act, 66 of 1995 and dated 4 November 1997, is hereby reviewed and set aside.
2. The first respondent is ordered and directed to consider afresh and on its merits and in terms of provision of section 191(2) of the Labour Relations Act any application for condonation which may be brought or persisted in by the fifth and sixth respondents in respect of the failure by the fifth and sixth respondents to comply with the time period of 30 days laid down in section 191(1) of the Labour Relations Act.
____________________
BASSON , J