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Mhlambi v East Rand N17 Private Hospital (JR1169/01) [2001] ZALC 186 (24 October 2001)

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JUDGMENT


JR1169/01-mc


Sneller Verbatim/mc

IN THE LABOUR COURT OF SOUTH AFRICA

BRAAMFONTEIN CASE NO: JR1169/01

2001-10-24





In the matter between

MHLAMBI Applicant

and

EAST RAND N17 PRIVATE HOSPITAL Respondent

___________________________________________________________

J U D G M E N T

___________________________________________________________

LANDMAN J: This is an application brought by Ms Jeanette Mama Mhlambi to review and set aside a ruling by a Commissioner of the CCMA. It appears that a second referral of a dispute concerning the dismissal of Ms Mhlambi was late. She applied to the CCMA to condone the late application.


An application for condonation must be brought in terms of the Rules of the CCMA. Rule 19 provides that the party bringing the ap­plication must sign a notice of application and it must be supported by an affidavit in which various matters must be set out. The party op­posing the application may then deliver a notice of opposition and an answering affidavit. Once this has been done, the party initiating the proceedings, in this case Ms Mhlambi, may lodge a replying affidavit within five days on the day on which any notice of opposition and an­swering affidavits is delivered. Deliver means serve on the other parties and file with the Commissioner.

In this instance her employer, East Rand M17 Private Hospital, did not file an affidavit. Instead a letter dated 27 June 2000 was sent to the CCMA. Annexed to it was a document which appears to be an unsworn statement. The CCMA did not make the letter of 27 June 2000 available to Ms Mhlambi. It did not inform the employer that it was obliged to put its case under oath. The Commissioner, however, took the letter and unsworn statement into account and issued a ruling in terms of which the Commissioner declined to condone the late application.

Not only did the Commissioner not comply with the Rules of the CCMA, the Commissioner did not comply with the rules of natural justice. The applicant was not allowed any opportunity whatsoever to deal with the response by her employer.

In the circumstances this constitutes a gross irregularity. The con­donation ruling is reviewed and set aside. The matter is referred back to the CCMA for a fresh hearing on the question of the condonation. This is to be conducted before a commissioner other than the se­cond respondent. East Rand N17 Private Hospital, the third respon­dent, is ordered to pay the applicant's costs of this application.


____________________

A A Landman

Judge of the Labour Court of South Africa


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