South African Broadcasting Corporation v Commission for Conciliation Mediation and Arbitration and Others (J2116/00) [2003] ZALC 10; (2003) 24 ILJ 999 (LC); [2003] 5 BLLR 497 (LC) (31 January 2003)

Key Facts

Issues

• The Commissioner permitted Ms. Govender, an attorney who had withdrawn from representing the respondents, to participate in the proceedings. Additionally, he allowed the 4th respondent to give unsworn evidence and make submissions without being cross-examined. The court found these irregularities serious, as they undermined the proper conduct of the hearing, and set aside the proceedings.
• The Applicant argued that the 4th and 5th respondents, as members of the Media Workers' Association of South Africa (MWASA), were bound by a collective agreement requiring disputes to be referred to private arbitration under the auspices of the Independent Mediation Service of South Africa (IMSSA). The Commissioner failed to consider whether he had jurisdiction to hear their dispute, leading the court to set aside his ruling. The court emphasized the importance of upholding collective agreements to foster collective bargaining.
• The Applicant claimed the 3rd to 6th respondents' referrals were significantly delayed, with a weak explanation that they didn't want to jeopardize a contract. The Commissioner condoned the delay, but the court found his decision was based on a flawed understanding of legal principles, particularly the 'prospects of success' in the Melane case. The court ruled that the Commissioner exceeded his power and set aside the condonation.

Holdings

• The court declared that the CCMA lacked jurisdiction to conciliate the dispute involving the 4th and 5th Respondents due to their collective agreement requiring private arbitration. The Commissioner's ruling to grant condonation for their late referral was set aside for this jurisdictional error.
• The Commissioner's condonation of the late referral for the 3rd and 6th Respondents was set aside due to serious irregularities, including flawed application of legal principles (e.g., misinterpreting 'prospects of success') and failure to address prejudice to the Applicant from delayed referrals.
• Each party was ordered to bear their own costs, with the court noting the Applicant's financial capacity and the Respondents' lack of culpable conduct during the proceedings.

Remedies

• The ruling made by the 2nd Respondent dated 28 April 2000 to consider and grant the application by the 4th and 5th respondents for the condonation of the late referral of their dismissal dispute to the CCMA for conciliation was reviewed and set aside.
• The court declared that the CCMA does not have jurisdiction to conciliate the dispute involving the 4th and 5th respondents, thereby lacking the authority to consider their applications for condonation of late referral.
• The ruling made by the 2nd Respondent dated 28 April 2000 to grant the application by the 3rd and 6th respondents for the condonation of the late referral of their dismissal dispute to the CCMA for conciliation was reviewed and set aside.
• The court ordered that each party shall pay their own costs, as the normal rule is that costs follow the result, but no adverse costs order was made against any party.

Legal Principles

• The court emphasized that collective agreements bind all parties, including employers, unions, and members, and must be observed to uphold collective bargaining and self-government. This principle was central to determining that the CCMA lacked jurisdiction for the 4th and 5th respondents' dispute due to their obligation to follow private arbitration under the collective agreement.
• The court reviewed the commissioner's decision to condone late referrals, finding he exceeded his powers and failed to apply legal principles. Key factors included the absence of good cause, flawed assessment of prospects of success, and lack of consideration for prejudice to the applicant. These irregularities warranted setting aside the ruling.

Precedent Name

Cited Statute

Judge Name

Passage Text

• By permitting Ms Govender to appear and represent the said Respondents... and by allowing the 4th Respondent to give unsworn testimony and make submissions... the 2nd Respondent committed a reviewable irregularity. The said irregularities are serious enough to warrant the setting aside of the proceedings...
• I find that the 2nd Respondent did not have the jurisdiction to hear the applications of these two Respondents. In my judgment, the 2nd Respondent's conduct of condoning the late referral of the dispute before determining the jurisdictional issue amounts to such an irregularity that his ruling condoning the late referral of the dispute by the 4th and 5th Respondents stands to be reviewed and set aside. I rule accordingly.
• There appears to be much force in the Applicant's submission that the 2nd Respondent did not understand the principles in the Melane decision... To the extent that I understand what the 2nd Respondent is trying to say... it appears to me that his concept of the 'prospects of success' and how to establish them on the evidence, is seriously flawed.