Jurisdictional issue considered: LRA s 147(6)

Note: Footnotes omitted, emphasis added and certain personal details redacted to comply with law.

[1] The third respondent applies for leave to appeal against the whole of the judgment delivered by this court on 2 May 2020. In its judgment, the court reviewed and set aside an arbitration award in favour of the third respondent, after refusing to grant condonation for the late filing of the third respondent’s answering affidavit, filed 486 days late. The court also refused to grant an application filed by the third respondent to dismiss the review application on account of the applicant’s failure to comply with the practice manual.

[2] The third respondent’s primary ground for review is that the court erred in holding that the CCMA had no jurisdiction to entertain the dispute referred to it.

[3] First, it should be recorded that the third respondent’s application to condone the late filing of this answering affidavit was dismissed and in consequence, the review application proceeded unopposed.

In Pitelli v Everton Gardens Projects CC [2010] ZASCA 35, the SCA considered with an appeal may be made against default judgements. The court held that where no answering affidavit had been filed, orders made by default are susceptible only to precision and were not appealable.

In Ferreiras (Pty) Ltd v Naidoo and Another (69094/2014 ZAGPJHC 392 11 December 2017) the High Court held that in motion proceedings, eight [sic] default judgment was issued where a party elects not to oppose an application; where a party serves a notice of motion and does not deliver an answering affidavit; or whether a party delivers an answering affidavit late and is denied condonation and the judgement is granted on the applicant’s papers only.

In terms of the Rules of this court, in motion proceedings, a party opposing a review application is required to notice [sic] opposition by delivering an answering affidavit within the prescribed period. In the absence of an answering affidavit, or if an answering affidavit is delivered outside the prescribed period and condonation was refused, the review application proceed is unopposed.

In the present instance, the review application proceeded on an unopposed basis and by virtue of the authority referred to above, the order was granted by default and is not susceptible to an appeal.

[4] Even if this is incorrect, I am not persuaded that there is a reasonable prospect that a different court faced with the same facts and evidence would come to a different conclusion.

The test for leave to appeal is established by s 17 of the Superior Courts Act.

The court must determine whether there is a reasonable prospect that another court would come to a different conclusion; more precisely, whether there is a reasonable prospect that the factual matrix would receive a different treatment or where there is some legitimate dispute on the law

(see Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC)).

In the same matter, Davis JA urged labour courts to take care to ensure a balance between expeditious dispute resolution and the rights of the party seeking leave to appeal.

[5] In so far as the third respondent contends that the court heard in placing reliance on the evidential submission made in the applicant supplementary heads of argument to the effect that the CCMA had no jurisdiction to determine the third respondent’s unfair dismissal dispute because the applicant falls within the jurisdiction of the Metal and Engineering Industries Bargaining Council, the bargaining council does not derive its jurisdiction from its own agreements.

First, it should be recognised that the jurisdictional point may be raised by party even if the point has not been pleaded and at any time in the proceedings.

Indeed, the court is obliged to raise any jurisdictional point since to consider a matter where there are obvious concerns that the court has no power to grant the relief sought is a matter that goes to the proper application of the rule of law.

The source of a bargaining council’s jurisdiction is section 191(1) read with section 51(3) of the LRA.

Those provisions provide respectively

• • that unfair dismissal disputes may be referred to a bargaining council if the parties to the dispute fall within the registered scope of that council (or the CCMA if they do not), and
  • that the council must attempt to resolve a dispute referred to it if any party to the dispute is not a party to the council.

In other words, it is immaterial whether the applicant is a member of an employers’ organisation party to the bargaining council, since jurisdiction is derived from the statutory provisions referred to above and not the bargaining council’s constitution nor any of its agreements.

What matters is whether the applicant falls within the registered scope of the bargaining council.

This is a matter in respect of which the court was entitled to take judicial notice.

In terms of section 5 of the Civil Proceedings Evidence act, 1965, judicial notice must be taken of any law or government notice or any other matter published in the Gazette.

On 9 October 2009, the bargaining council’s dispute resolution agreement was published and extended to bind all employers and employees within the councils registered scope.

At the time the arbitration award which is the subject of the review application was issued on 14 May 2014, the agreement had been extended to apply to all employers and employees within the councils registered scope.

The applicant’s business falls within the registered scope of the bargaining council.

[6] Insofar as the third respondent contends that the court erred in accepting that in the absence of the CCMA affecting an election in terms of section 147 of the LRA the CCMA had no jurisdiction to arbitrate the dispute and further, that the court heard in not finding that in the absence of it becoming clear that the CCMA does not have jurisdiction over a dispute, it retains jurisdiction to arbitrate the dispute, this position is not reflected in the authorities that concerned the application and interpretation of section 147.

In Qibe v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v CCMA [2015] 4 BLLR 415 (LAC), the LAC held that section 147 of the LRA provides a statutory exception to the rule that the CCMA may not pronounce on its own jurisdiction (at paragraph 6).

The court held that

‘Where the parties disputing fall under the jurisdiction of a bargaining council, the CCMA will not have jurisdiction unless jurisdiction has been conferred on the CCMA in terms of the provisions of section 147 of the LRA’.

That section provides that if it becomes apparent after dispute [sic] has been referred to the CCMA that the parties to the dispute are parties to a bargaining council will fall within the registered scope of the council, the CCMA may refer the dispute to the bargaining council for resolution or appoint a commissioner to resolve the dispute.

The construction of section 147 is such that if the CCMA does not exercise these provisions (i.e. by either electing to refer the dispute to the bargaining council concerned, or conferring upon itself the jurisdiction to decide the matter by appointing a commissioner to resolve the dispute, whether conscious of the fact that the dispute before it falls within the jurisdiction of a bargaining council or not), it lacks the jurisdiction to decide that dispute.

[7] Insofar as the third respondent further contains that section 147(7) of the LRA unfair [sic] is that the CCMA would be [sic] jurisdiction until such time as it refers the dispute to a bargaining council with jurisdiction, or effects an election to retain jurisdiction over the dispute, the section on which the third respondent relies makes clear that when the CCMA refer the dispute to a person or body other than a commissioner, that date of the initial receipt of the referral by the CCMA is the date on which the commission referred the dispute elsewhere.

There is no suggestion in this section that the CCMA is vested with jurisdiction until such time as it refers the dispute.

[8] For the above reasons, there is no merit in the application for leave to appeal.

I make the following order:

1. Leave to appeal is refused.

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