gugu buthelezi

Gugu Buthelezi

Director

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South African Municipal Workers Union (SAMWU) o.b.o 25 (Applicants) others alleged they were unfairly dismissed by Zenzeleni Cleaning and Transport Services CC (Zenzeleni). SAMWU referred two consolidated disputes (first referral) to the Commission for Conciliation, Mediation and Arbitration (CCMA). Conciliation was unsuccessful. At the arbitration the Applicants withdrew the referral as they intended to institute a breach of contract claim in the High Court.

A SAMWU representative acted on the Applicants mandate and withdrew the referral and signed a notice which read “I confirm that I sign this Notice of Withdrawal of my own free will. I understand that there will be no further process in this matter and that I am not able to re-refer or re-open this case”.

Subsequently the Applicants applied to the CCMA on the 2 November 2012 to have their first referral re-enrolled. The application was refused and it was ruled that the CCMA had no jurisdiction to enrol the dispute, based on the doctrine of election. The Commissioner expressed the Applicants should refer a fresh dispute (second referral) and apply for condonation. The applicants did so and tin addition they made an application to review the commissioners ruling refusing to re-enrol their first referral. The CCMA refuses to set down the second referral based on the ruling of the jurisdictional ruling of the Commissioner which is pending on review. The CCMA argue the matter is res judicata alternatively lis pendens.

Legal Issues

  • Urgency
  • Does CCMA lack jurisdiction to hear second referral and condonation rulling?
  • Is the jurisdictional issue lis pendens?

In respect of the urgency, the court held the correct approach would have been for the Applicant to approach the Judge President or his Deputy to hear the matter expediently in terms of the Labour Court Practice Directive.

The court held that the issue of the jurisdiction was dealt with in the case of Ncaphayi v CCMA & others (2011) 32 ILJ (LC) and it confirmed the finding therein. The Ncaphayi case stated that:

“implicit in the commissioners reasoning is an assumption that the submission of a notice of withdrawal by a referring party constitutes an action to be reviewed by this court. However, the withdrawal of a dispute to CCMA is not an act of any functionary but that of an employee. The commissioner plays no role in that decision. This is the first difficulty with the commissioner’s reasoning in arriving at his conclusion that he lacked jurisdiction. The second relates to the effect of the withdrawal of a referral to conciliation. The LRA does not deal with the withdrawal of matters referred to the CCMA neither do CCMA rules…It is instructive to note how the High Court has considered the withdrawal of a matter. It has been held that a withdrawal of a matter is akin to an order for absolution form the instance, which does not prevent a party from re-instituting proceedings and the defendant would not be able to raise exception rei judicatae if sued again from the same cause of action…”

The court also noted the case of Kgobokoe v CCMA & others (2012) 33 ILJ 235 (LC) wherein it was held that a notice of withdrawal in the CCMA may be withdrawn and the matter must then be considered by the CCMA, subject to questions of prejudice.

It was held that the second referral is not lis pendis or res judicata. The relief sought in the review is to re-enrol the fist application. The fact of the pending review does not preclude the CCMA from setting the second referral down for arbitration. The first withdrawal remains withdrawn there in no pending lis between the parties except for the second referral. The court held that the issue of the Applicants election to withdraw should be dealt with at the arbitration of the second referral.

The court ordered that the Applicants non-compliance with time periods in terms of the Labour Court Rules is condoned and the matter is heard as one of urgency.

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