Dlakana v Education Labour Relations Bargaining Council and Others

Citation: [2026] ZALCCT 41

Presiding Judge: De Kock AJ

Court: Labour Court of South Africa, Cape Town

Nature of the Application

[1] This matter came before the Court as a review application wherein the Applicant sought the Jurisdiction Ruling by the Second Respondent (Commissioner R Olivier), dated 2 March 2021, to be reviewed and set aside.

Factual Matrix and Jurisdictional Ruling

[4]–[5] Paragraphs 29 and 31 of the ruling stated:

"[4] Paragraph 31 of the ruling states the following: 'I find that the material and fraudulent misrepresentation in this matter where Mr Kwayiso, as the applicant's representative, acted as her representative without having locus standi vitiated the whole of the arbitration proceedings and the matter is therefore null and void.' [5] This Court was also referred to paragraph 29 of the ruling which states as follows: 'The applicant submitted that even should costs be considered it should only be considered when the arbitration is completed. I have already noted that this matter is null and void and from that point of view the matter is concluded...'"

Judicial Analysis

[8] The Court drew a critical distinction:

"The distinction between a defect going to the council's jurisdiction and a defect going to a representative's authority is a material one in law. Jurisdiction concerns the competence of the tribunal to hear the dispute at all. This is a matter that cannot be conferred or waived by the parties. The authority of a representative is an altogether different inquiry. It is a constraint operating on the representative alone and does not infect the underlying dispute or the party's entitlement to have it determined. Where a representative is found to lack authority, the proper legal consequence is that the unauthorised representation falls away and not that such representation should lead to a premature dismissal of a referral."

[9] Section 138(1) of the Labour Relations Act 66 of 1995 was invoked:

"Section 138(1) of the Labour Relations Act requires a commissioner to determine the dispute fairly and quickly. When an issue of locus standi in the representation arises during arbitration proceedings, the appropriate course is to deal with it as a procedural matter by excluding the unauthorised representative and by affording the employee an election to obtain proper representation before proceeding. A cost order against the offending party is available where prejudice has been caused. What is not permissible is to treat the representative's lack of authority as a basis for terminating the proceedings and leaving the dispute unresolved."

[10] The Court cited the Constitutional Court in AFGRI Animal Feeds (A Division of PhilAfrica Foods (Pty) Limited) v National Union of Metalworkers South Africa and Others [2024] ZACC 13:

"Even on the most adverse view of the Applicant's conduct, her right to have her dispute determined has not been forfeited. The right of access to dispute resolution entrenched in sections 23 and 34 of the Constitution is not extinguished by a representative's misconduct or the employee's complicity in it. The system provides for costs to be awarded as an instrument to address culpable conduct; costs are not a substitute for a hearing on the merits. This principle is now confirmed at the highest level. In AFGRI Animal Feeds... the Constitutional Court held that even where a union's authority to represent members was ultra vires its registered constitution and void, 'the dismissed employees themselves are entitled to continue with the Labour Court proceedings in their own names.' The invalidity attaches to the representative's act; it does not extinguish the party's substantive right to have the dispute heard."

Order

"1. The jurisdictional ruling is reviewed and set aside. 2. The First Respondent is directed to reschedule the dispute before a commissioner other than the Second Respondent and the arbitration proceedings are to be conducted de novo. 3. No order is made as to costs."