IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN					REPORTABLE
 
CASE NO: C68/2005
						DATE HEARD: 21-06-2005
						DATE DELIVERED: 22-06-2005
 
In the matter between:
 
WELTEVREDE KWEKERY (PTY) LTD			APPLICANT
 
and
 
COMMISSION FOR CONCILIATION,	
MEDIATION AND ARBITRATION			1ST RESPONDENT
 
PIETER BREUGEM					2ND RESPONDENT
 
PIET VAN STADEN N.O.				3RD RESPONDENT

JUDGMENT

PILLAY D, J
   
1.	Many technical issues arise in this review brought in terms of section 158(1)(g) of the Labour Relations Act No. 66 of 1995 ("the LRA").  It is also prefaced by an objection that it was launched out of time and not accompanied by an application for condonation.
 
2.	The second respondent (employee) was dismissed on 29 March 2004. He posted a referral for conciliation to the Commission for Conciliation, Mediation and Arbitration ("the CCMA") the first respondent, on 23 April 2004.  On 28 and 29 April 2004 the second respondent telephoned the CCMA to check that it received the referral. It had not as the post had not been collected yet.  On 30 April he was told that the referral had been received.  On enquiring about progress on 7 May 2004, the employee learnt that the referral had been registered. Thereupon he served the referral on the applicant by telefax on 10 May 2005.  He also faxed the referral form to the CCMA together with proof of transmission to the CCMA.  He was mistaken about when service had to be effected and had assumed that it should be effected after the referral had been registered by the CCMA. The CCMA informed him on 28 June 2004 that he needed to apply for condonation.  He signed the application for condonation on 30 June 2004 and transmitted it the next day to the CCMA.
 
3.	The applicant opposed the condonation on 6 July 2004.  On 17 August 2004 it received the ruling granting condonation. It filed this review application on 10 February 2005 and served it on 14 February 2005. 
 
	Point in limine: Condonation 
4.	The applicant submits that no application for condonation is required and the review was launched within a reasonable time.  It was pointed out to Mr Kantor for the applicant that prior to the 2002 amendment of the LRA, the case law had equated the standard of a reasonable period for delivering an application for review in terms of section 158(1)(g) to the same standard as set for the review of arbitration awards in terms of section 145 of the LRA, i.e. six weeks ( Rustenberg Platinum Mines Ltd v Monnapula & Others [2003] 9 B LLR 909 LC at paragraph 34 page 914; Ruijgrok v Foschini (Pty) Ltd & Another [1999] 20 ILJ 1284 LC at 1287 para 16-1288 para 22).
 
5.	The 2002 amendment to section 158(1)(g) gave effect to the practice that had been established through the case law.  Mr Kantor persisted that the reference to "subject to section 145" in section 158(1)(g) was to the grounds of review and not the time limit.  I disagree. There is nothing in the wording of section 158(1)(g) that lends itself to such a qualification.  

 
6.	The review should have been launched within six weeks from 17 August 2004.  It was launched more than five months later.  That is not within a reasonable time, even on the applicant's version.  The applicant was aware of and could have acquainted itself of all the information relevant for this application when it received the condonation ruling.  There is, therefore, no reasonable explanation that can be distilled from the pleadings for such a long period of delay.
 
7.	The first prayer sought is in the following terms:
 
"No valid referral of a dispute in terms of the rules for the conduct of proceedings before the CCMA was made to the first respondent in case reference WE509/04."
 
8. 	Insofar as the first order prayed is framed as a declarator, it will emerge from the facts discussed below that it is really a review of an act by the CCMA.  Consequently, the six week time limit for claiming such relief applies to that prayer as much as to the rest of the relief sought.  
 
9.	The application for review is brought out of time. It falls to be dismissed on this ground alone. I nevertheless proceed to deal with the merits of the application.
 
10.	The applicant submits that the referral was invalid, firstly because it was not accompanied by an application for condonation and secondly, there was no proof of service submitted to the CCMA.  In support of these grounds of invalidity Mr Kantor submitted that Rules 9 and 10 of the Rules of the CCMA relating to the procedure for seeking condonation and referring a dispute to the CCMA respectively are peremptory. They must be enforced strictly otherwise it would impair the administration of disputes by the CCMA. Furthermore, the respondents would be prejudiced by not being afforded a hearing.
 
11.	Mr Nieuwoudt for the second respondent countered, firstly, that the rules were not peremptory.  Secondly, by the time the condonation ruling was made on 10 August 2004, both the application for condonation and proof of service of the referral had been lodged. In the alternative, he submitted that sub-sections (1) and (3) of section 191 do not envisage such a technical interpretation of the rules and that they distinguish clearly between a referral and proof of service.
 
12.	In support of his submission that the Court should not be overly technical, Mr Nieuwoudt referred to Kruger & Another v MacGregor N.O. & Another [1999] 9 BLLR 935 LC paras 14-16 and 23-30; Queenstown Fuel Distributors CC v Labuschagne N.O. & Others [2001] BLLR 45 NAC; Standard Bank of South Africa Ltd v Fogg & Others [2002] 9 BLLR 900 LC paras 6-7; Rustenberg Platinum Mines Ltd v Monnapula  [2003] 9 BLLR 909 LC at para 13.  
 
13.	I agree with Mr Nieuwoudt that section 191(2) allows an employee to apply for condonation at any time. Rule 10(2)(c) read with Rule 9(2) merely directs an employee as to when and how to file an application for condonation.  Section 191(3) requires an employee to satisfy the CCMA that the referral has been served on the employer. Rule 10(2)(b) merely directs the employee as to how it can satisfy the CCMA.
 
14.	The rules are designed firstly to assist lay-people to prosecute and defend cases in the CCMA in a logical and predictable way.  Secondly, the rules enable the CCMA to administer disputes. In essence they exist  for the convenience and guidance for the litigants and the CCMA.  If Mr Kantor's submission is accepted, the rules will be an obstacle course fraught with procedural traps aimed at barring litigants at the slightest. That could never be the purpose of the power to make rules entrusted to the CCMA under section 115(2)A of the LRA.  As an elementary principle of administrative law, rules cannot take away rights which the statute confers.  Rules 9 and 10 are manifestly more restrictive than the corresponding section 191(2) and (3). To withstand the test for validity, therefore the rules must  be directory, not peremptory.
	
15.	On the facts, it is common cause that the applicant was served with the referral.  The commissioner must have satisfied himself in some way that the referral was served before he proceeded to make a ruling.  The principal ground of review, which was dispositive of all other grounds, must fail.  
 
16.	The second prayer sought is the review and setting aside of the condonation ruling.  The commissioner calculated the period of delay to be two days, i.e. from 28 April to 30 April, and concluded that it was negligible.  He rejected the applicant’s contention that the referral was 63 days late.  The applicant’s explanation for this calculation, which was not offered to the commissioner, is that the delay must be calculated up to the time when the condonation application was made.  The contention, as I understand it, is that a late referral is no referral until it is accompanied by an application for condonation.
 
17.              In my opinion, such a construction is contrived. The standard application for condonation form is worded thus under the heading: 
	"Degree of lateness.
2.1	The referral is.....days late
...
2.3	Applicant signed the referral form on..."
The commissioner's mind is directed to the degree of lateness of the referral, not the condonation application. The referral and the condonation application are distinct documents and processes.  The timing of the application for condonation could be relevant. However, that must also be weighed against section 191(2) of the LRA permitting condonation applications to be brought at any time.

 
18.	Section 191(3) provides:
"The employee must satisfy the Council or the Commission that a copy of the referral has been served on the employer."
 
Similar wording is used in section 134(2) of the LRA.  The meaning of "referral" that I distill  from these sections is that it is the document that initiates the process.  In this instance it is the LRA form 7.11. A referral is distinct from service. "Referral" does not have a similar meaning as “deliver”  used in the Magistrate's Court and High Court to mean “file and serve”. The commissioner therefore correctly calculated the period of delay to be two days. That, for him, was decisive of the condonation application as it might well be in the circumstances.
 
19.	It is evident from the referral that it was signed on 19 April 2004, i.e. eight days before the 30 days expired. The commissioner might also have been aware that the CCMA had delayed in retrieving its mail from the post office. In any case, it is a discretion that the Commissioner exercised well within the bounds of reasonableness and justifiability.  The commissioner found that the applicant did not address the issue of delay.  The delay the commissioner was referring to was the two day delay, not the 11 days which the second respondent had had in mind.  The second respondent did give an explanation for the 11 day delay, i.e. he mistakenly believed that the date of service was relevant for calculating the date of the referral. In the circumstances, the commissioner's finding that there was no explanation for the delay does not assist the applicant.
 
20.	His ruling discloses no findings on the prospects of success on the merits other than to indicate that it warrants further scrutiny.  This point can be taken no further for, as in many applications of this kind, the prospects of success are inconclusive.  The condonation ruling is sound and this application to set it aside fails.
 
21.	The third order prayed is for the review and the setting aside of the CCMA's decision to set down the dispute for arbitration. This relief is claimed because it is alleged that the certificate of outcome had not been issued.  The primary purpose of a certificate is to provide prima facie proof of the facts contained therein.  Section 136(1)(a) stipulates the requirement of a certificate as proof that the dispute remains unresolved.  It is common cause that the dispute was unresolved when it was referred for arbitration.  That being so, this ground of review must also fail. The provisions of section 136(1)(a) are peremptory. Consequently, the CCMA had to set the matter down for arbitration.  
 
22.	The fourth order prayed for was to review and set aside the certificate of outcome of the dispute referred to conciliation.  As stated above, the certificate was not issued within 30 days as prescribed in section 135(5)(a) of the LRA.  As Mr Nieuwoudt points out, this was not specifically pleaded but raised in the heads of argument for the first time.  Nevertheless, I will deal with it. The issuing of a certificate is not a ritual which, if not performed  on the due date, would operate to bar a litigant from prosecuting its claim.  As stated above it is purely to facilitate proof of the facts contained therein. If those facts are common cause, the certificate can be dispensed with.
	
23.	Moreover, the omission to issue the certificate is not the fault of the second respondent. There is no reason why he should be prejudiced by the CCMA's omission.  
 
24.	The applicant has also not established that any of the circumstances outlined in its four grounds of review have caused it to suffer any material prejudice.  All the grounds of review are obviously aimed at obstructing the second respondent from dealing with the dispute substantively on its merits. The Court takes a dim view of litigants who adopt this stance in labour disputes. The applicant should be mindful that if it persists in this mindset it could attract an adverse order of costs somewhere down the line.  However, such an order was not sought in this application and no punitive order for costs is therefore made.
 
25.	The order that I grant therefore is in the following terms:
The application is dismissed with costs.

 
_________
Pillay D, J
1 August 2005

FOR THE APPLICANT:		Adv. P. Kantor
INSTRUCTED BY:			Craig Schneider & Associates
 
FOR THE RESPONDENT:	Adv. H. Nieuwoudt
INSTRUCTED BY:			Deneys Reitz Attorneys