---

 

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Not Reportable

CASE NO: PR226/21

 

 

In the matter between:

 

PAMELA MFINGWANA                                           Applicant

 

and

 

COMMISSION FOR CONCIALIATION,

MEDIATION AND ARBITRATION                            First Respondent

 

GIVEN NTABENI N.O                                              Second Respondent

 

EASTERN CAPE DEVELOPMENT

CORPORATION                                                      Third Respondent

 

Heard: 24 November 2022

 

Delivered: This judgment was handed down electronically by circulation to the Applicant's and Respondents' Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 13h00 on 19 June 2023.

 

 

JUDGMENT

 

 

LALLIE J

 

[1]  The applicant launched this review application in terms of section 145(1) of the Labour Relations Act[1] (the LRA). She alleges that the conduct of the second respondent who will be referred to as the commission in this judgment, dismissing her rescission application constituted a gross, irregularity as envisaged in section 145 (2) (a)(ii) of the LRA. The application is opposed by the third respondent, which will be referred to as the ECDC.

 

Point in Iimine

 

[2]  The ECDC filed its notice of opposition on 25 November 2021 thereafter the applicant delivered her notice in terms of Rule 7A(8)(b) dated 17 January 2022. The ECDC responded by filing a second notice of opposition in which it advised the applicant that it opposed the review application on the applicant's papers. It further raised the point in limine that the review application was incompetent because the decision, which the applicant sought to review was a nullity. On 2 February 2022, the applicant's attorneys sent a letter to the attorneys of the ECDC advising that the second notice of opposition did not comply with the Labour Court Rules. They also expressed their intention of applying for a court date. It was argued on behalf of the applicant that the second notice of opposition should be struck out and the third respondent disallowed form opposing the review application. The argument is based the ECDC's non­ compliance with Uniform Rule 6(5)(iii) in that the ECDC failed to set out the grounds for raising the objection. The counter-argument raised on behalf of ECDC was that a letter or notice to object has no legal significance. The counter argument is based on this court's decision in Nelson Mandela Bay Municipality v SAMWU obo Tolom and others[2].

 

[3]  The applicant did not challenge ECDC's reliance of Rule 6 of the Uniform Rules. Her objection was based on how the rule was applied. The applicant's conduct of raising her objection to the second notice of opposition in a letter did not assist her. I agree with the decision in Nelson Mandela Bay Municipality that a letter has no legal significance because it is correct. The second notice of opposition was properly filed in terms of Rule 6 of the Uniform Rules. The objection the applicant had should have been pleaded properly. In the absence of pleading properly to the second notice of opposition, I could find no reason to strike the notice out. The applicant's point in /imine can, in the circumstances, not succeed.

 

[4]  The facts which led to the filing of the review application are largely not in dispute. The applicant was employed by the ECDC as the Head: Properly Division in April 2017. Having been dismissed on 27 September 2019, she referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA). After the non-resolution of the dispute through conciliation, the matter was scheduled for arbitration on 13 January 2022. The Applicant was neither present nor represented at the arbitration. The absence resulted in the CCMA issuing a ruling dismissing the applicant's referral in terms of section 138(5)(a) of the LRA. In an attempt to resuscitate her referral, the applicant filed an application for the rescission of the dismissal ruling. In a ruling dated 16 September 2021, the commissioner made the following finding:

 

'The rescission application is dismissed and the Commission is directed to close the file’

 

The applicant seeks to have the decision reviewed.

 

[5]  The review application is based on gross irregularities the commissioner committed in the conduct of the arbitration. Based on the applicant's papers, the ECDC submitted that the, view application is incompetent and sought to have the rescission ruling declared a nullity. The applicant persisted with the argument that the averment that the recessing ruling is a nullity should be rejected because of the ECDC's failure to disclose its basis. For the reasons already given, 'the applicant's argument cannot stand. No authorise were cited in support of the applicant's version. I could not overlook the authorities the ECDC sought to rely on. I found them correct and consequently agree with them. They include Glencore Operations SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others[3] where it was held that when a commissioner dismissed a referral in terms of section 138(5)(a) of the LRA owing to the referring party's failure to appear or be represented at arbitration, that commissioner performs a statutory function. The dismissal is therefore not a ruling or award as envisaged in section 144 of the LRA as it is not a pronouncement based on the merits of the referral. In order to have her unfair dismissal dispute heard after it had been dismissed, the applicant was required to have re-referred it to arbitration so that it could be determined on its merits.

 

[6]  A ruling or an award must exist before a commissioner can exercise the power of rescission provided for in section 144 of the LRA. The ruling or award is a jurisdictional fact for the exercise of the power. As the dismissal decision which formed the rescission application is neither a ruling commissioner lacked the jurisdiction to exercise.it. A decision taken without the necessary jurisdiction is a nullity. The application for review is based on a nullity. An order reviewing a nullity is incompetent. The review application must therefore be dismissed.

 

[7]  The ECDC sought a costs order against the applicant on the grounds that the bringing of the applica1ion constituted unnecessary litigation which delayed the finalisation of the dispute. It was argued on behalf of the applicant that the review application was necessary in that in addition to dismissing the applicant's referral, the commissioner ordered the CCMA to close the file. The applicant expressed the view that she had to bring this application in order to have the decision to have her file closed changed so that her dispute could be determined on its merits. The applicant's decision to bring the review application based on the manner in which the dismissal decision is based is not unreasonable. The view that the CCMA cannot change its decision to have the applicant's file close is one of the plausible inferences that can drawn from the decision. The applicant did not act unreasonably in bringing this application.

 

[8]  In the premises, the following order is made:

 

1.   The point in limine is dismissed.

 

2.   The application for review is dismissed.

 

3.   The decision of the second respondent under case number ECEC 5471-19 dated 16 September 2021 dismissing the applicant's rescission application is declared a nullity.

 

4.   There is no order as to costs.

 

 

Z. Lallie

Judge of the Labour Court of South Africa

 

 

Appearances

 

For the Applicant:                           Adv NL. Ntsepe

Instructed by:                                  M. Tyopo Attorneys

 

For the Third respondent:               PN. Kroon SC

Instructed by:                                  Wesley Pretorius & Associates Inc

 

 

---