Article 42/2024

LabourEdge

Is a commissioner empowered to proceed with an arbitration involving a dispute referred to in terms of s191(5)(a) of the LRA, despite an objection by the other party to the dispute, but in non-compliance with rule 17(2) of the CCMA rules?

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  • In terms of rule 17(2) of the CCMA rules, a party, that intends to object to a dispute being dealt with in terms of s191(5A), must deliver a written notice to the CCMA and the other party, at least seven days prior to the scheduled date of the con-arb hearing.
  • In terms of s191(5A) of the LRA, the CCMA, or the relevant bargaining council, must commence the arbitration immediately after certifying that the dispute remains unresolved if:
    • the dismissal relates to probation, or
    • the unfair labour practice relates to probation, or
    • there is no objection for the matter to proceed immediately to arbitration
  • The labour court, in Valinor Trading 133 CC t/a Kings Castle v CCMA and Others (2023) 44 ILJ 1106 (LC); (2023) 34 SALLR 13 (LC), adopted the following approach to the aforesaid issues:
    • s34 of the Constitution guarantees everyone to have any dispute, that can be resolved by application of law, decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum
    • it is wrong to interpret s191(5A)(c) of the LRA to mean that any objection raised outside the prescribed period in rule 17(2) of the CCMA rules ceases to be an objection
    • rule 35(1) of the CCMA rules provides the CCMA and the commissioner with a wide discretion to condone any failure to comply, on good cause shown, and this discretion is to be utilised when there is non-compliance with the seven-day time period as set out in rule 17(2) of the CCMA rules – it does not follow that non-compliance with the seven-day requirement in rule 17(2) renders defective an objection to the point that it can be ignored
  • In response to this judgment, the Director of the CCMA, on 6 April 2023, issued a directive indicating, inter alia, that rule 17(2) remains in force, but any failure with the seven-day time period can be condoned, on good cause shown.
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?