Zulu v Commission for Conciliation, Mediation and Arbitration and Others (D279/2022) [2022] ZALCD 40 (29 August 2022)

Zulu v Commission for Conciliation, Mediation and Arbitration and Others (D279/2022) [2022] ZALCD 40 (29 August 2022)

The court held that the applicant, having brought a rescission application in terms of section 144 of the LRA and the relevant CCMA Rules, is entitled to have his application determined by a commissioner appointed for that purpose. The CCMA's refusal to process the application was not justified, as only a commissioner has the authority to consider and decide the merits of such an application. The request for a senior commissioner was not supported by any statutory or regulatory provision, and thus the CCMA cannot be compelled to appoint one. The court ordered the CCMA to process the rescission application by appointing a commissioner, allocating a hearing date, and notifying the parties...

Citation
[2022] ZALCD 40
Parties
Applicant: Ndabenhle N Zulu; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner B S Mthethwa; Respondent: University of Zululand
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
29 August 2022
Case Number
D279/2022
Procedural Posture
Review Application / Judgment
Outcome
Application granted in part; CCMA ordered to process the rescission application. No order as to costs.
Judges
Allen-Yaman
Legal Topics
Rescission Application, Ccma Rules, Jurisdiction, Condonation, Unfair Labour Practice
Labour Law Civil Procedure Rescission Application Ccma Rules Jurisdiction Condonation Unfair Labour Practice

Case Brief

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Parties

Ndabenhle N Zulu

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner B S Mthethwa

Respondent

University of Zululand

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the CCMA's refusal to process the applicant's rescission application was lawful and constitutional.
  2. 2 Whether the applicant is entitled to have his rescission application processed and heard by a commissioner.
  3. 3 Whether the appointment of a senior commissioner is required for the determination of the rescission application.

Ratio Decidendi

The court held that the applicant, having brought a rescission application in terms of section 144 of the LRA and the relevant CCMA Rules, is entitled to have his application determined by a commissioner appointed for that purpose. The CCMA's refusal to process the application was not justified, as only a commissioner has the authority to consider and decide the merits of such an application. The request for a senior commissioner was not supported by any statutory or regulatory provision, and thus the CCMA cannot be compelled to appoint one. The court ordered the CCMA to process the rescission application by appointing a commissioner, allocating a hearing date, and notifying the parties...

Court Disposition

Application granted in part; CCMA ordered to process the rescission application. No order as to costs.

Orders

  • The CCMA is directed to process the applicant's application for rescission of the award made by the second respondent under case number KNRB 1279-21 dated 13 April 2022 by appointing a commissioner to consider and determine the merits thereof.
  • The CCMA must allocate a date for the hearing of the application.