Shoprite Checkers (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others (PA5/05) [2007] ZALAC 7; [2007] 10 BLLR 917 (LAC); (2007) 28 ILJ 2246 (LAC) (29 June 2007)

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[2007] ZALAC 7
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Shoprite Checkers (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others (PA5/05) [2007] ZALAC 7; [2007] 10 BLLR 917 (LAC); (2007) 28 ILJ 2246 (LAC) (29 June 2007)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: PA5/05
In
the matter between
SHOPRITE
CHECKERS (PTY) LIMITED APPELLANT
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION FIRST RESPONDENT
COMMISSIONER
JOHN ROBERTSON SECOND RESPONDENT
NYAMEKO
WYCLIFFE YENGENI THIRD RESPONDENT
JUDGMENT
Jappie
AJA
[1] This is an appeal against a
judgment of the Labour Court in which the Court upheld a ruling by a
commissioner declining to rescind
an arbitration award handed down in
the absence of the appellant.
[2] The appellant, Shoprite Checkers
(Pty) Ltd trades inter alia at Grahamstown, in the Eastern Cape
Province. The first respondent
is the Commission for Conciliation,
Mediation and Arbitration (“the CCMA”) and its offices situated,
inter alia, at East London.
The second respondent, a commissioner, is
in the employment of the CCMA and it is his ruling that formed the
subject matter of the
decision of the Labour Court now appealed
against. The third respondent, Nyameko Wycliffe Nengeni, was employed
by the appellant
as a sales manager at its store in Grahamstown. He
was appointed to that position on the 1
st
December 2002.
[3] The facts and circumstances which
gave rise to the application for the rescission of the arbitration
award may be summarized
as follows: During October 2003, whilst the
third respondent was on duty, two persons were apprehended by the
security guards at
the appellant’s store in Grahamstown for having
allegedly stolen electrical appliances. The police were called in
and the two
persons were arrested. The following day the third
respondent was approached by a Miss Pumla Gamana who informed him
that a syndicate
was involved in stealing goods from the appellant’s
store. She gave him the name of two security guards both of whom
were in
the employ of a company known as Magnum Security. This
security company provided security services at the appellant’s
store. The
third respondent informed his supervisor, a Mr. Classen,
as to what Gamana told him. Classen in turn informed Magnum Security
who
then installed a camera to monitor the area in the appellant’s
store from where stock was being stolen.
[4] Towards the end of October 2003,
stock was again stolen from the basement of the appellant’s store.
At the time of the theft
one of the security guards who had been
implicated by Pumla Gamana was on duty. The appellant caused the
matter to be investigated
and in the course of the investigation
Pumla Gamana was approached for further information. On information
supplied by her some
of the appellant’s goods were recovered. A
week after this incident, the third respondent was asked to take a
polygraph test.
Did she take it and if so, what were the results?
Thereafter, the third respondent was requested to undergo further
questioning
at the offices of the appellant in East London. Further
investigation by the appellant led to the third respondent being
charged
with misconduct.
[5] At a subsequent disciplinary
inquiry the charges faced by the third respondent were set out in the
“charge sheet” read as
follows:-
Charge:
“1) Gross misconduct
and dishonesty for withholding or not disclosing
to management of the
store or regional team about the syndicate and/or shoplifters of
which you acknowledge of which also included
the whereabouts of
stolen property.
2) Gross misconduct and
dishonesty for breaking the trust relationship
between the company and
yourself.
3) Gross misconduct and
dishonesty for breaking and breeching company rules.”
[6] The third respondent pleaded not
guilty to all the charges. Nevertheless, the chairman of the
disciplinary inquiry found him
guilty and the sanction that was
imposed was that the third respondent be dismissed from the
appellant’s employment with effect
from the 5th December 2003. The
third respondent felt aggrieved by this dismissal, which he regarded
as unfair. A dispute then arose
between the appellant and the third
respondent on the fairness or otherwise of the dismissal.
[7] The third respondent referred the
dispute (of his dismissal) to the CCMA. At conciliation the matter
remained unresolved and
it was then referred to arbitration.
[8] The arbitration was set down for
the 5
th
May 2004 and was to be held at the offices of the Department of
Labour in Grahamstown. The second respondent was assigned to conduct.
Notices of set down of the arbitration were served on both the third
respondent and the appellant. The appellant had been notified
of the
arbitration proceedings by registered mail and had collected the
notice of set down on the 16
th
April 2004. The second respondent was assigned to conduct the
arbitration.
[9] Jacobus Federik Booysen, a human
resources manager in the employ of the appellant, was appointed to
represent the appellant at
the arbitration proceedings. At the
hearing on the 5
th
May 2004 the third respondent was in attendance. No-one appeared for
or on behalf of the appellant. The second respondent, having
satisfied himself that the appellant had been properly notified of
the date, time and venue of the proceedings and in the absence
of any
explanation from the appellant for its failure to attend, proceeded
with the arbitration. It later transpired that Booysen
had
mis-diarised the date of the hearing
[10] The following day, the 6
th
May 2004, Booysen went to the offices of the Department of Labour
and it was then that he was informed that the arbitration proceedings
had been concluded on the previous day and in the absence of any
representative of the appellant. Booysen contacted the appellant’s
attorney and informed them of the situation. He was advised to wait
for the commissioner to hand down his award.
[11] On the 8
th
May 2004 the second respondent handed down his award. The effect of
the award was that he found the dismissal of the third respondent
to
have been substantively unfair. The appellant was ordered to
re-instate the third respondent into his position as sales manager
at
the Grahamstown store retrospectively from 6 December 2003. This
means that the reinstatement order was to operate for the entire
period from the day after the dismissal.
[12] On the 11
th
May 2004 the appellant’s attorneys were notified of the award. The
appellant then instructed its attorneys make an application
to have
the award rescinded. On the 17
th
June 2004 the appellant filed an application with the CCMA to have
the second respondent’s award rescinded. The same was served
on the
third respondent. The rescission application was brought in terms of
section 144 of the Labour Relations Act, 1995 (Act 66
of 1995)(“the
Act”).
Section 144 reads as follows-:
“
Variation and
rescission of arbitration awards and ruling.
Any commissioner who has
issued an arbitration award or ruling, or any other commissioner
appointed by the director for purpose, may
on that commissioner’s
own accord or, on the application of any affected, vary or rescind an
arbitration award or ruling-
erroneously sought or
made in the absence of any party affected by that award;
in which there is an
ambiguity, or an obvious error or omission, but only to the extent
of that ambuity, error or omission; or
granted as a result of a
mistake common to the parties to the proceedings.”
[13] The application for the
rescission of the arbitration award came before the second
respondent. On the 4
th
August 2004 he handed down his ruling. The second respondent
dismissed the application for rescission. In doing so the second

respondent concluded that the material facts and circumstances of the
application for rescission did not fall within the provisions
of s
144 of the Act.
The second respondent stated his
reasons as follows:-
“
In the circumstances
it cannot be said that the award was erroneously sought or
erroneously made in the absence of any party affected
by the award in
that the notice given to the applicant complied in all respects with
the rules in question. The fact that the applicant’s
employee made
an incorrect diary reference does not affect the question of proper
notice and therefore does not make the ward erroneously
sought or
erroneously made.
The fact that the entry
was incorrectly diarized did not amount to good cause for rescission.
If this was so then any person could
claim that the matter be
rescinded under s 144 by virtue of the fact that he either forgot or
made an incorrect diary reference regarding
an arbitration hearing.
This obviously defeats the purpose of s 144, which was enacted to
address the three categories listed there
under only.”
[14] The appellant, thereafter,
brought a review application in the Labour Court and sought to have
the second respondent’s ruling
reviewed and set aside. The
application was heard by Pillay J in the Labour Court who dismissed
the application. In its judgment,
the Labour Court stated its
conclusions as follows:-
“
[4] The
application for rescission was brought in terms of all the sub
sections of s 144 of the Labour Relations Act No. 66 of 1995
(the
“LRA”). As it turned out, submissions in this review were made
only in terms of ss (a). Nevertheless the commissioner’s
ruling
comprehensively covered ss (b) and (c). …
[6] Neither s 144, nor
Rule 32 of the CCMA requires an applicant for rescission to show good
cause. I am in respectful disagreement
with judgments and awards
that require it in applications for rescissions of a CCMA decision.
(Goodyear South Africa (Pty) Ltd
v CCMA and Others
- P117/01 unreported at paragraph 15, per Gering A J.) …
[
11] In
the circumstances I hold that good cause is not a requirement in an
application for the rescission of the decision of the CCMA,
and the
commissioner was not required to take it into account. However, I
also find that to the extent that he did take it into
account, he
justifiably rejected the explanation as not amounting to good cause.”
[15] The appellant subsequently
sought and obtained the leave of the
court
a quo
to appeal to the
Court, which leave was granted.
The appeal
[16] Before this Court, counsel for
the appellant, submitted that the main question raised in the appeal
is whether s 144 of the Act
permits the rescission of a CCMA
arbitration award on the ground of good cause. He submitted that a
finding in favour of the appellant
on this issue would result in the
appeal being upheld as it would follow that the
court
a quo
had erred in law in
concluding that good cause was an insufficient basis for the
rescission of an arbitration award. Moreover, he
submitted that
there can be no dispute that the appellant had in fact demonstrated
good cause for its non- attendance at the CCMA
on the date when the
arbitration proceedings were held.
[17] It was argued that the approach
adopted by the second respondent and the Labour Court in regard to
whether or not an arbitration
award is to be rescinded on the basis
that an applicant (for rescission) has shown good cause is predicated
on the approach that
s 144 of the Act does not contemplate good cause
to be shown. Counsel for the appellant submitted that, as the text of
s 144 mirrors
the wording of Rule 42 of the Uniform Rules of Court,
this approach stems from placing reliance on the interpretation of
Rule 42
in various decisions of the High Court. (
See
Colyn v Tiger Foods Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA)).
[18] It is apparent from the judgment
of the
court a quo
that it applied s 144 as if it was applying the provisions of Rule 42
of the Uniform Rules of Court. This approach, it was argued,
effectively amounted to a reliance on the principle of statutory
interpretation referred to as “
in
pari materia”
. The
effect of this principle is that, where the meaning of a statute is
unclear, then that statute should be afforded the same
meaning given
to an earlier statute if couched in the same language. It was
submitted that this principle is inapplicable because
it only applies
to corresponding statutory provisions and not to provisions in
statutes and corresponding rules of Court. It was
argued that, that
interpretation of Rule 42 arises in circumstances which are entirely
different to the circumstances under consideration
in relation to
section 144 of the Act. In the High Court, a party bringing an
application for rescission has available to him, in
addition to the
provisions of Rule 42, other remedies. He may obtain rescission under
the common law or under the provisions of Rule
31(2) of the Uniform
Rules which permits rescission on good cause shown. There is no
similar rule which is applicable to arbitration
proceedings before
the CCMA.
[19] Counsel for the appellant
submitted that this Court could interpret section 144 in such a way
as to include “good cause”.
He said that this Court has
previously interpreted provisions of the Act to include words that
were not expressly part of such provisions.
In this regard he
referred to the decision of this Court in Carephone. In Carephone
this Court held that the ground of review of
exceeding powers in
section 145 of the Act had to be read to also include
unjustifiability of an arbitration award as a ground of
review. He
also relied on the judgment of this Court in Queenstown Fuel
Distributors CC v Labuschagne NO and Others (2000) 21 ILJ
166 (LAC).
In that case this Court decided that, although there was no express
provision in section 145 of the Act giving the Labour
Court the power
to condone non-compliance with the six weeks time-limit set out
therein, section 145 had to be read to be directory
and, therefore,
not to exclude this Court’s power to condone non-compliance with
time-limits relating to access to Court.
[20] An additional reason why the “in
pari materia
”
principle is inapplicable is that in interpreting Rule 42 the civil
courts do not have to contend with the provisions of section
3 of the
Act. This section provides:-
“
Any
person applying this Act must interpret its provisions –
To
give effect to its primary objects;
In
compliance with the constitution, and
In
compliance with the public international obligations of the
Republic.”
[21] As one of the primary objects of
the Act is the effective resolution of labour disputes, applying the
“
in pari materia
”
principle would defeat this object of the Act as it would in effect
deprive the appellant in these circumstances of the opportunity
of
being heard and thus the dispute between the parties would not
effectively be resolved.
[22]
In response to the appellant’s argument, the third respondent
contended that, as the appellant had sought to raise on appeal
a
single issue which was whether or not s 144(a) of the Act permitted
the rescission of a CCMA arbitration award on good cause shown,
the
appeal must fail as the sub-section makes no mention of good cause as
a ground for rescission. It was submitted that, as section
144 of
the Act mirrors
verbatim
the
provisions of Rule 42 of the Uniform Rules of the High Court and
the civil courts have ruled that the correct interpretation
of Rule
42 is that it does not contemplate rescission of a default judgment
on good cause, section 144 of the Act can also not be
said to
contemplate rescission of a CCMA award on good cause shown. Moreover,
the civil courts have consistently refused to rescind
default
judgments under Rule 42(1)(a) where there was no irregularity in the
proceedings and the party in default relied on the negligence
or
physical incapacity of his attorney. (See:
Bristo
v Hill 1975(2) SA 505 N; Tshabala v Peer
1979 (4) SA 27T
).
It was submitted that section 144(a) of the Act is of limited
application and can only be invoked in circumstances where an award
was erroneously sought or erroneously made.
[23] In any event, counsel for the
third respondent urged that this Court should be slow to “read in”
or to construe s 144 (a)
of the Act to include good cause as a ground
for the rescission of an arbitration award since a court does not
have power to create
substantive law and rules which seek to make
substantive law are
ultra
vires
.
[24] In the affidavit in support of
the application for rescission of the arbitration award Jacobus
Federick Booysen stated:-
“
I now wish to make the
following submissions, which is material to the legal aspects
pertaining to this rescission application:
6.1 It is respectfully
submitted that it is trite that in order to succeed in an application
for rescission of an award, the affected
party (hereinafter referred
to as the “applicant”) must show good cause justifying the
rescission of the award under attack.
In establishing good cause,
the applicant bears the onus of not only proving that it has a
reasonable explanation for its default
but also that it has a bona
fide case to pursue before this Honourable Commission.”
[25] Even though the appellant relied
on the provisions of s 144, counsel argued that on the facts as set
out in Booysen’s affidavit
good cause was demonstrated and that the
second respondent ought to have rescinded the award solely on that
ground.
Section 144 of the Act reads as
follows:-
“
144. Variation and
rescission of arbitration awards and rulings
.
- Any commissioner who has issued an arbitration award or ruling,
or any other commissioner appointed by the
director
for
that purpose, may on that commissioner’s own accord or, on the
application of any affected party, vary or rescind an arbitration
award or ruling –
erroneously sought or
erroneously made in the absence of any party affected by that award;
in which there is an
ambiguity, error or omission, but only to the extent of that
ambiguity, error or omission; or
granted as a result of a
mistake common to the parties to the proceedings.”
[26] It is so that s 144 of the Act
makes no mention of good cause shown. Moreover s 144 of the Act
mirrors the text of Rule 42
of the Uniform Rules of Court. Rule 42
(1) reads as follows:-
“
42
(1) the
court may, in addition to any other powers it may have
mero
motu
or
upon the application of any party affected, rescind or vary:
an order or judgment
erroneously sought or erroneously granted in the absence of any
party affected thereby;
An order or judgment in
which there is an ambiguity , or a patent error or omission, but
only to the extent of such ambiguity, error
or omission;
An order or judgment
granted as the result of a mistake common to the parties.”
[27]
In
Colyn v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape)
2003 (6) SA 1(SCA)
,
Jones
AJA with regard to Rule 42 stated the position as follows:-
“
[5]
It
is against this common law background which imparts finality to
judgment in the interest of certainty, that Rule 42 was introduced.

The Rule caters for mistakes. Rescission or variation does not
follow automatically upon proof of a mistake. The Rule gives the
Court a discretion to order it, which must be exercised judicially
(
Theron
NO v United Democratic Front (Western Cape Region) and others and
Tshivhase Royal Counsel and another v Tshivhase and Another;
Tshivhase and Another v Tshovahase and Another.).
[6]
Not
every mistake or irregularity may be corrected in terms of the Rule.
It is, for the most part at any rate, a restatement of the
common
law. It does not purport to amend or extend the common law. That is
why the common law is the proper context for its interpretation.

Because it is a Rule of court it ambit is entirely procedural.
[7]
Rule
42 is confined by its wording and context to the rescission or
variation of an ambiguous order or an order containing a patent
error
or omission (Rule 42(1)(b)); or an order resulting from a mistake
common to the parties (Rule 42 (1)(c)); or ‘an order erroneously
sought or erroneously granted in the absence of a party affected
thereby’ Rule 42(1)(a)). In the present case the application
was,
a far as the Rule is concerned only based on Rule 42 (1)(a) and the
crisp question is whether the judgment was erroneously granted.”
[28] In the civil courts, Rule 42 is
confined by its wording and context to limited application. However
it is clear that the rule
do not deprive the court of its discretion
which must be exercised judicially.
The civil courts had always retained
discretion to grant rescission of a judgment on good cause shown.
In
De Wet and Other v
Western Bank Limited
1979 (2) SA 1031
[AD]
at 1024 F Trengrove AJA explained the position as follows:-
“
Thus, under the common
law, the Courts of Holland were, generally speaking, empowered to
rescind judgments obtained on default of
appearance, on sufficient
cause shown. This power was entrusted to the discretion of the
Courts. Although no rigid limits were
set as to the circumstances
which constituted sufficient cause (cf examples quoted by Kersteman
(
op cit
sv
defaillant) the Courts nevertheless laid down certain general
principles, for themselves, to guide them in the exercise of their
discretion. Broadly speaking, the exercise of the Courts
discretionary power appears to have been influenced by considerations
of
justice and fairness, having regard to all the facts and
circumstances of the particular case. The onus of showing the
existence
of sufficient cause for relief was on the applicant in each
case, and he had to satisfy the court,
inter
alia,
that there was some reasonably satisfactory explanation why the
judgment was allowed to go by default. It follows from what I have
said that the Court’s discretion under the common law extended
beyond , and was not limited to, the grounds provided for in Rules
31
and 42 (1), and those specifically mentioned in the
Childerley
case. Those grounds do not, for example, cover the case for a
litigant, or his legal representative, whose default is due to
unforeseen
circumstances beyond his control, such as sudden
illness,
or some other misadventure, one can envisage many situations in which
both logic and common sense would dictate that a defaulting
party
should, as a matter of justice and fairness, be afforded relief.”
[29] It seems to me that in applying
s 144 of the Act a commissioner is in the same position as a judicial
officer in the civil courts
when considering an application for
rescission.
[30] Moreover, s 3 of the Act directs
any person applying the Act to interpret its provisions in such a way
that it gives effect
to the primary objects of the Act and for the
interpretation to comply with the Constitution.
[31] This is what occurred in
Carephone (Pty) Ltd v Marcus
NO and Others
(1998) 11 BLLR 1093
(LAC)
.
In this case this Court had to interpret and give effect to section
145(2)(a)(iii) of the Act. The court held that section 145(2)(a)(iii)
had to be interpreted in the manner consistent with the Constitution.
Even though section 145(2)(a)(iii) was the exact equivalent
of
section 33(1)(b)
of the
Arbitration Act 42 of 1965
, which had
traditionally been interpreted narrowly, this Court decided or chose
a wider interpretation of
section 145(2)(b)(iii)
by effectively
reading into it the provisions of item 23(b) of Schedule to the
Constitution. This then gave rise to wider grounds
of review then the
ordinary language reflects.
[32] In
Queenstown
Fuel Distributors CC v Labuschange NO and Other (2000) 21 ILJ 166
this Court found that the Act did not expressly confer authority on
the Labour Court to condone non-compliance with the time-limit
set
out in section145 of the Act. This Court inquired into the question
whether there was anything in the Constitution which suggested
that
the legislature did not, despite what it may have said or omitted to
say, intend the time-bar to be immune from adjustment
by the court.
It considered the injunction in section 3 of the Act and the
provisions of s23(1) and of the Constitution and concluded
at 174G,
“that considerations of justice and convenience dictate that
acceptance of the proposition that the legislature intended
the
time-limit for bringing review proceedings in section 145(1)(a) to be
directory. In principle, therefore, it is possible to condone
non-compliance with the time-limit”.
[33] As there are circumstances which
can be envisaged, such as in the present case, and which fall outside
the circumstances referred
to section 144 of the Act in such cases
both logic and common sense would dictate that a defaulting party
should, as a matter of
justice and fairness be afforded relief. It
follows, that if one was to hold that section144 of the Act does not
allow for the rescission
of an arbitration award in circumstances
where good cause is shown and that an applicant who seeks rescission
of an arbitration award
was compelled to bring the application within
the limited circumstances allowed by the wording of the section it
could lead to unfairness
and injustice. In my view this would be
inconsistent with the spirit and the primary object of the Act
referred to above. Furthermore,
I am of the view that to interpret
section 144 of the Act so as to include “good cause” as a ground
for rescission is to give
the Act an interpretation that is in line
with the right provided for in section 34 of the Constitution
because, if section 144 is
not interpreted in that way, a party who
can show good cause for his default would be denied an opportunity to
exercise his right
provided for in section 34 of the Constitution
despite the fact that he may not have been at fault for his default.
That could be
a grave injustice.
[34] It would appear that the second
respondent was of the view that good cause could be considered as a
ground for rescinding the
award. In his reasons for refusing the
application for rescission he made the following remarks:-
“
The fact that the
entry was incorrectly diarized did not amount to
good
cause
for rescission
.”
[35] The test for good cause in an
application for rescission normally involves the consideration of at
least two factors. Firstly,
the explanation for the default and
secondly whether the applicant has a
prima
facie defence
. In
Northern
Province Local Government Association v CCMA and Other
[2001] 5 BLLR
539
(LC)
at 545 at para 16
it was stated:
“
An application for the
rescission of a default judgment must show good cause and prove that
he at no time denounced his defence, and
that he has a serious
intention of proceeding with the case. In order to show good cause
an applicant must give a reasonable explanation
for his default, his
explanation must be made bona fide and he must show that he has a
bone fide defence to the plaintiff’s claims.”
[36] In
MM
Steel Construction CC v Steel Engineering and Allied Workers Union of
SA and Others (1994) 1 5 ILJ 1310 (LAC) at 1311 I – 132a
Nugent
J had this to say:-
“
These two essential
elements ought nevertheless not to be assessed mechanistically and in
isolation. While the absence of one of
them would usually be fatal,
where they are present they are to be weighed together with relevant
factors in determining whether
it should be fair and just to grant
the indulgence.”
[37] In considering good cause, the
second respondent took into account only one aspect of the test.
That is to say he only considered
the fact that Booysen had
mis-diarized the date of the arbitration hearing. He clearly did not
consider the appellant’s defence
to the third respondent’s claim
as he made no mention of it in his decision. In my view, the second
respondent, failed to weigh
together all the relevant factors in
determining whether it was just and fair and therefore, whether good
cause had been shown for
the rescission of the arbitration award. It
follows that the second respondent did not apply his mind to all the
issues before him
and if he did, he ought to, in the circumstances of
this case, to have rescinded his earlier default award.
[38] When the matter came before the
Labour Court, Pillay J adopted the approach that good cause is not a
requirement in an application
for the rescission of a decision of the
CCMA and a commissioner was obliged not to take it into account. As
already shown above,
I take a different view. Section 144 must be
interpreted so as to also include good cause as a ground for the
rescission of a default
arbitration award. Accordingly, a
commissioner may rescind an arbitration award under section 144 where
a party shows good cause
for its default. In my view this approach of
interpreting the Act is in line with the approach adopted by this
Court in the Queenstown
case referred to above, particularly at
paragraph 17-24 thereof. It, therefore, follows that the decision of
the Labour Court is
to be set aside.
[39] In light of all of the above the
Court a quo
should have set aside the ruling of the CCMA. The next question that
arises is whether the
Court
a quo
would then have had
to remit the matter to the CCMA to be dealt with afresh or whether it
could itself have effectively made the
decision that the CCMA ought
to have made in the rescission application. One of the primary
objects of the Act is the effective resolution
of disputes. This
includes an expeditious resolution of disputes. In this case the
dismissal occurred in December 2003. Accordingly,
there has already
been a delay of over three years. Furthermore, the employer had
missed the arbitration hearing date by one day.
The non-attendance by
the employer’s representative was due to an understandable mistake.
On the merits the employer’s case is
one which deserves an
opportunity to be heard at the arbitration. I am of the view that, if
I were to remit the matter back to the
CCMA for it to decide the
rescission application afresh, the granting of the rescission in this
matter would be a foregone conclusion
in the light of all the
circumstances of the case. I am of the view that the Labour Court,
and, therefore, this Court as well, has
power in cases such as this
to make the decision which the tribunal whose decision is on review
should have made (See Traub v Administrator
of the Transvaal and
another 1989 10 ILJ 9 at 21D-H)
[40] I do not propose to deal with the
facts relating to the rescission in any detail. The facts relating to
the background to the
dismissal dispute have been set out above.
Those show, in my view, that the employer has a case on the merits
that is triable. Indeed,
it cannot be said that the employer has no
reasonable prospects of success. The explanation of the failure by
the employer’s representative
to appear at the CCMA is
understandable. He misdiarised the matter. He thought it was to be on
the day after the day when it was
actually set down for arbitration.
In all of those circumstances the arbitration award given earlier
should be rescinded and the
employer be given an opportunity to
defend its decision to dismiss the employee. With regard to costs I
am of the view that each
party should pay its own costs.
[41] In the premises I make the
following order-:
1. The appeal is upheld.
2. Each
party is to pay its own costs.
3. The order of the Labour Court is
set aside and replaced with the
following order-:
“(a). the application for review
succeeds.
(b). No order is made as to costs.
(c). The
ruling issued by the CCMA dismissing the rescission
application
is hereby set aside and is replaced with the
following
decision-:
(i) the
arbitration award previously issued in this matter
Is
hereby rescinded and the dispute can be set down
for
arbitration with notice to all parties.”
_____________________
Jappie
AJA
I
Agree.
______________________
Zondo
JP
I
Agree.
______________________
Khampepe
AJA
On
behalf of the appellants: Adv. AT Myburgh
Instructed
by
Van
Zyl incorporated
Port
Elizabeth
On
behalf of the respondent: Adv Quinn Sc
Instructed
by
Mili
attorneys
Grahamstown
Judgment
handed down on the 29
th
June 2007