About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2012
>>
[2012] ZALAC 34
|
|
PT Operatioal Services (Pty) Ltd v RAWU obo Ngwetsana (JA7/11) [2012] ZALAC 34; [2013] 3 BLLR 225 (LAC); (2013) 34 ILJ 1138 (LAC) (27 November 2012)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Reportable
Case no: JA 7/11
In the matter between:
PT OPERATIONAL
SERVICES (PTY) LTD
.....................................................
Appellant
and
RAWU obo L NGWETSANA
.
......................................................................
Respondent
Heard:
19
SEPTEMBER 2012
Delivered: 27 NOVEMBER
2012
Coram: Waglay, AJP,
Ndlovu, JA and Musi, AJA
JUDGMENT
___________________________________________________________________
MUSI, AJA
[1] After hearing the
appellant and the respondent the Labour Court (Moshoana, AJ) made the
following order, in favour of the respondent:
“
1.
The three applications are consolidated for purpose of hearing.
The rulings of 26
February 2007, 10 May 2007, and 3 July 2007 are hereby reviewed and
set aside.
The award issued on 5
February 2004 is hereby made an order of this court.
The first respondent to
pay the costs of all the applications.”
[2] The appellant was
dissatisfied with the order and successfully applied for leave to
appeal against the entire judgment and order.
Mr Gerber, on behalf of
the appellant, however informed us that the appeal is only aimed
against the setting aside of the ruling
dated 26 February 2007
mentioned in paragraph 2 as well as paragraphs 3 and 4 of the order.
The setting aside of the rulings dated
10 May 2007 and 3 July 2007 is
not challenged. Likewise the order consolidating the matters is not
challenged.
[3] Three interrelated
applications were brought before the Labour Court on different
occasions. The first application was a request
to make an arbitration
award an order of court in terms of section 158(1) (c) of the Labour
Relations Act 66 of 1995 (the Act)
1
.
The second was an application to review and set aside two rulings
made by the arbitrator, Lance Cellier, on 26 February 2007 and
10 May
2007 respectively. The third was an application to review and set
aside a ruling made by another arbitrator, Frederick Matshaba,
on 3
July 2007. Both arbitrators acted under the auspices of the
Commission for Conciliation, Mediation and Arbitration (CCMA).
[4] Mr Lazarus Ngwetsana
was employed by the appellant. The appellant operates Toll Plazas and
maintains Highways in the Platinum
Corridor. Ngwetsana was employed
at the Stormvoël Toll Plaza. It was alleged that he reported for
duty, on 22 February 2003,
whilst under the influence of alcohol and
when his colleague refused to hand over the float and shift to him,
he assaulted her
with a telephone receiver. He was charged with being
under the influence of liquor while on duty and for conducting
himself in
a disgraceful, improper and unbecoming manner that was
detrimental for the company. He was convicted, after a disciplinary
hearing
was held, and dismissed. He referred an unfair dismissal
dispute to the CCMA.
[5] The matter was set
down for arbitration on 7 November 2003 on which date it was
postponed at the appellant’s request.
The appellant was
notified, by registered mail, posted on 18 December 2003 that the
matter is set down for hearing on 26 January
2004. There was no
appearance on its behalf on 26 January 2004. Commissioner Diale
Ntsoane proceeded with the matter in terms of
section 138(5)(b)(i) of
the Act.
2
Ngwetsana testified and
denied the allegations levelled against him. Ntsoane found that his
dismissal was unfair and ordered his
reinstatement with back pay
amounting to R29 150.00. Ntsoane’s award is dated 5 February
2004 (the default award).
[6] On 26 February 2004
the respondent notified the appellant about the arbitration award and
that Ngwetsana would be reporting
for duty on 1 March 2004. On 27
February 2004 the appellant informed the respondent that it is unable
to comply with the award
because it is in the process of applying for
its rescission.
[7] The appellant sent
its rescission application to the CCMA on 12 March 2004 by way of
registered mail. On 17 May 2004 the CCMA
informed the appellant that
its rescission application was defective and it could not receive any
further attention because an
application for condonation for the late
filing of the application was not submitted. On 21 May 2004 the
appellant wrote to the
CCMA and stated that the rescission
application was sent on 12 March 2004 to all parties that being the
14
th
day since it became aware
of the default award i.e. from 27 February 2004 when it was informed
by the respondent to 12 March 2004.
The appellant was of the view
that it need not, under the circumstances, apply for condonation.
[8] The rescission
application was set down and Commissioner Cellier (Cellier) dismissed
the application on 12 August 2004 (the
defective process ruling).
[9] The ruling of 12
August 2004 is pivotal to the adjudication of this appeal. I will
therefore set out Cellier’s reasoning
and ruling in full and
without emendation. Cellier correctly set out the gist of the
applicable rules and said the following:
“
The
award was brought to the respondent’s attention on 27 February
2004. The application was posted to the CCMA via registered
mail on
12 March 2004. Rule 32 of the Rules for the Conduct of Proceedings
before the CCMA (“the rules”) states that
an application
to rescind a ruling must be made within 14 days of the date on which
the applicant becomes aware of the ruling.
Rules 7 & 8 of the
rules state that a document is filed with the commission when the
office of the provincial Registrar receives
it, and that a document
sent by registered mail is presumed to have been received by the
person to whom it was sent 7 days after
mailing. This application was
therefore filed late with the CCMA and thus the respondent would need
to make application for condonation
for the late application.
2.
Ruling
Due to the defective
process referred to above, I herewith dismiss this application.”
[10] On 11 October 2004,
in a badly couched notice of motion, the appellant sought the
following relief:
“
1.
Reinstating the rescission application which have (sic) been
submitted on 12 March 2004 under case number GA 21236/03 and
dismissed
by Commissioner LH Cellier on 21 August 2004 (sic) on the
basis of the (sic) defective process.
Granting the prays (sic)
as contained therein.
Alternatively granting
condonation of the late filing of the rescission application.”
[11] On 5 November 2004,
before the applications for condonation and rescission were heard,
the respondent applied for the certification
of the default award in
terms of section143 (3) of the Act.
3
[12] On 19 November 2004
the appellant wrote to the CCMA informing it that it had applied for
the rescission of the default award
and requested the CCMA to stay
the section 143 application pending the outcome of the rescission
application. It received no reply.
On 8 December 2004 it enquired
about the outcome of its request and forwarded copies of the relevant
documents to the CCMA.
[13] On 9 October 2006
the respondent delivered an application in terms of section 158 (1)
(c) of the Act wherein it asked the Labour
Court to make the default
award an order of court. On 9 November 2006 the respondent withdrew
its section 143 application because
it desired to continue with the
section 158(1) (c) application instead. Needless to say, the section
158 (1) (c) application was
opposed by the appellant.
[14] On 26 February 2007,
after much water had flown under the bridge, and in spite of the
respondent’s objections, the applications
for condonation and
rescission of the default award were granted by Cellier (the
rescission ruling).
[15] Cellier issued
another ruling on 10 May 2007 (the obvious error ruling) wherein he
stated that his rescission ruling was erroneous
because he neglected
to set aside his ruling issued on 12 August 2004 (the defective
process ruling). He classified this as an
obvious error. He then set
aside his ruling dated 26 February 2007(rescission ruling)
purportedly in terms of section 144 of the
Act. Section 144 of the
Act reads as follows:
“
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
–
Erroneously sought or
erroneously 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 ambiguity, error or omission.
Granted as a result of
mistake common to the parties to the proceedings.”
[16] He further purported
to vary his defective process ruling by stating that the intent “
of
the ruling issued on 12 August 2004 was to draw the respondent’s
attention to a procedural defect in his application and
to afford him
(sic) a reasonable opportunity to remedy the defect, which he (sic)
did by applying for condonation for the late
application.”
He
then stated that another Commissioner should, in the interest of
justice and fairness, consider the applications for condonation
and
rescission afresh.
[17] The respondent
launched, on 5 June 2007, a review application to set aside Cellier’s
rulings issued on 26 February 2007(the
rescission ruling) and 10 May
2007(the obvious error ruling).
[18] On 3 July 2007,
Commissioner Matshaba granted the condonation and rescission
application and set aside the default award dated
5 February 2004.
The respondent launched a review application to set aside Matshaba’s
award issued on 3 July 2007.
[19] The Labour Court
found that the
functus officio
maxim or doctrine applies to
rulings made by commissioners acting under the auspices of the CCMA
and that CCMA commissioners may
not set aside their own decisions.
The Labour Court found that the ruling of 26 February 2007 (the
rescission ruling) is at odds
with the ruling of 12 August 2004
(defective process ruling). In the Labour Court’s view the
commissioner became
functus officio
when he issued the ruling
of 26 February 2007. According to the Labour Court, unless and until
the decision of 12 August 2004 is
reviewed and set aside no other
ruling, relating to this matter, can be valid.
[20] Mr Geber argued that
Cellier was called upon, on 12 August 2004, to act in terms of
section 144 of the Act. He did not do so
because there was no
application for condonation for the late filing of the rescission
application. The decision of 12 August 2004
was therefore not a final
decision as far as the rescission application is concerned. He argued
that the Court
a
quo
was
wrong to conclude that Cellier was
functus
officio
.
[21] Mr Khoza, for the
respondent,
argued
that the Court a
quo
was correct because
Cellier dismissed the application on 12 August 2004. The appellant
was supposed to take that decision on review.
Absent a review
application that decision is valid until set aside by the Labour
Court and Cellier had no power or authority to
revisit it because he
was
functus
officio
.
[22] Does the
functus
officio
doctrine
apply to CCMA commissioners? If so, was Cellier
functus
officio
after
the 12 August 2004 ruling?
[23] It is now settled
that commissioners conducting arbitrations under the auspices of the
CCMA are performing an administrative
function.
4
Although commissioners
perform an administrative function such function includes
adjudicative functions.
[24] Pretorius explains
the
functus
officio
doctrine
as follows:
“
The
functus officio doctrine is one of the mechanisms by means of which
the law gives expression to the principle of finality. According
to
this doctrine, a person who is vested with adjudicative or decision
making powers may, as a general rule, exercise those powers
only once
in relation to the same matter. This rule applies with particular
force, but not only, in circumstances where the exercise
of such
adjudicative or decision-making powers has the effect of determining
a person’s legal rights or of conferring rights
or benefits of
a legally cognizable nature on a person. The result is that once such
a decision has been given, it is (subject
to any right of appeal to a
superior body or functionary) final and conclusive. Such a decision
cannot be revoked or varied by
the decision-maker. However, this is
not an absolute rule. The instrument from which the decision-maker
derives his adjudicative
powers may empower him to interfere with his
own decision. Furthermore, it is permitted to make variations
necessary to explain
ambiguities or to correct errors of expression
in an order, or to deal with accessory matters which were
inadvertently overlooked
when the order was made, or to correct costs
orders made without having heard argument on costs. This list of
exceptions might
not be exhaustive and a court might have
discretionary power to vary its orders in other cases. However, this
power is exercised
very sparingly, for public policy demands that the
principle of finality in litigation should generally be preserved
rather than
eroded.
The same considerations
that require finality for the decisions of courts of law apply to the
decisions of administrative authorities.
Consequently, the functus
officio doctrine applies in administrative law as it does in relation
to curial proceedings. In elementary
terms, the effect of the functus
officio doctrine in administrative law is that an administrative
agency which has finally performed
all its statutory functions or
duties in relation to a particular matter subject to its
decision-making jurisdiction has exhausted
its powers and has
discharged its mandate in relation to that matter. Consequently, such
an agency is without further authority
as far as that matter is
concerned because it’s duties and functions have been fully
accomplished. Thus, an administrative
agency which is functus officio
is unable to retract or change its own earlier decision, unless it is
authorised by its enabling
legislation to do so.”
5
[25] The Court
a quo
,
in examining whether the
functus officio
doctrine applies to
CCMA commissioners firstly had regard to section 10 (1) of the
Interpretation Act 33 of 1957 which provides
that:
“
When
a law confers a power or imposes a duty then,
unless
the contrary intention appears, the power may be exercised and the
duty shall be performed from time to time as occasion
requires.”
[26] The Court
a
quo
agreed
with Professor Hoexter’s interpretation of section 10 (1) where
she says that the section merely enables administrators
to exercise
their powers anew in different situations, and not to revisit or
revoke their existing decisions whenever they like.
6
The Court
a
quo
added
that it seems to be against public policy for administrators to blow
hot and cold. The Court
a
quo
then
said:
“
The
LRA for instance has as one of its purposes, the resolution of labour
disputes. It cannot be said that allowing CCMA commissioners,
at the
alter of the provisions of section 144, authorising them to act at
own accord, to revisit their decisions is consistent
with effective
resolution of disputes.” (sic).
[27] Section 10 (1) of
the Interpretation Act must always be read in conjunction with the
empowering legislation, in this case the
LRA, in order to determine
whether the empowering statute contains a contrary intention. There
was no need for the Court
a
quo
and
there is no need for this Court given the clear provisions of the LRA
to embrace, in this matter, a restrictive or broad interpretation
of
section 10 (1).
7
Section 10 (1) must yield
to a contrary intention in the LRA. If there is a contrary intention
in the LRA then section 10 (1) is
displaced by the contrary intention
in the LRA. Section 144 of the LRA gives commissioners the right to
vary a decision under certain
limited circumstances. They therefore
have a limited right to revoke their decisions.
[28] In
Minister
for Immigration and Multicultural
Affairs
v Bhardwaj
,
Lehane J of the Federal Court of Australia suggests that one should
have regard to the statutory context in order to decide whether
there
is a contrary intention. He puts it thus:
“
Generally,
section 33 (1) of the Acts Interpretation Act will apply in relation
to a statutory power or duty. But the statutory
context may reveal a
contrary intention. In my opinion, the present statutory context does
so. It is one which plainly places a
high value on certainty. There
are strict time limits, detailed provisions governing the conduct of
review proceedings and precise
requirements as to the way in which
the Tribunal is to record its decisions and the reasons for it and is
to notify and publish
its decisions. There is then a limited form of
judicial review, for which applications may be made only within a
time limit of
twenty–eight days which cannot be extended. I
would, in my view, be incongruous with that scheme for the Tribunal
to have,
in relation to a particular application for review a power
from time to time as occasion requires to make (and revoke)
decisions.”
8
This statement applies,
in my view, with the necessary changes, to the detailed provisions in
the LRA pertaining to the conduct
of arbitrations and the review of
CCMA commissioners’ decisions. In my view the Court
a quo
was correct in its conclusion that the
functus officio
doctrine applies to CCMA commissioners. They may therefore only
revisit their decisions to the extent that it is permitted by the
provisions of section 144 of the LRA. They may not do so whenever
they like but may do so if the jurisdictional facts in section
144
are present. They may also do so, as I will show presently, when they
have performed an allied function but not yet performed
the power or
duty bestowed on them by the legislature.
[29] The veritable
question is whether a final decision was taken on 12 August 2004 by
Cellier. Mr Gerber argued that Cellier was
not
functus
officio
and
relied exclusively on
Ex
parte
Koster
.
9
The facts of that matter
are briefly as follows. The applicant was an unrehabilitated
insolvent. On 9 February 1965 the applicant’s
attorney wrote to
the Master of the Supreme Court and requested him to recommend the
applicant’s rehabilitation in terms
of section 124 (2) of the
Insolvency Act 24 of 1936
.
10
On 18 February 1965 the
Master responded in writing indicating that he will not object to the
application. The application was launched
on 22 April 1965. The
application not only contained a prayer for the rehabilitation of the
applicant but also a prayer that certain
immovable property should
vest in the applicant and that he be entitled to deal therewith as he
deems fit without his curator having
any right or interest in the
property. When the Master indicated that he will not object to the
application he was not aware of
the immovable property. After
perusing the application he refused to recommend the application,
because of the facts that were
only revealed in the application. The
applicant argued that the Master was
functus
officio
and
should be held to his indication that he will not object to the
application. Erasmus,
J
found that the assurance that the Master gave cannot be compared to a
final decision of a court and that the assurance was not
a
recommendation in terms of
section 124
(2) of the
Insolvency Act.
Erasmus
,
J
further found that the Master had to have the application before him
before making the recommendation. He found that the Master
was not
functus
officio
when
he refused to recommend the application.
[30] I fully agree with
Erasmus,
J’s
reasoning and conclusion. One can strengthen it by stating that it is
only after an administrative agency has finally
performed all its
statutory duties or functions in relation to a particular matter
which is subject to its jurisdiction that it
can be said that its
powers or functions were spent by its first exercise.
[31] It is unfortunate
that Cellier decided to dismiss the application instead of striking
it from the roll. I have seen many rulings
of a technical or a
formalistic nature where the correct order ought to be striking a
matter from the roll but the matter would
be dismissed instead.
[32] This also happens in
the High Courts and Labour Court especially when a finding is made
that a matter is not urgent and the
Judge refuses to enrol it. The
application is frequently dismissed for lack of urgency instead of
removed from the roll because
of lack of urgency.
11
[33] In
Commissioner
for SARS v Hawker Air Services (PTY) Ltd; In Re Commissioner for SARS
v Hawker Aviation Service Partnership and Others
,
Cameron JA, as he then
was, said the following about such orders:
“
One
of the grounds on which Patel, J dismissed the application was that
at their inception they had lacked urgency. This was erroneous.
Urgency is a reason that may justify deviation from the times and
forms the rules prescribe. It relates to form not substance,
and is
not a prerequisite to a claim for substantive relief. Where an
application is brought on the basis of urgency, the rules
of court
permit a court ( or a judge in chambers) to dispense with the forms
of service usually required and to dispose of it “as
it seems
meet’
(rule 6(12)
(a)). This in effect permits an urgent
applicant, subject to the court’s control, to forge its own
rules (which must as far
as practicable be in accordance with the
rules). Where the application lacks the requisite element or degree
of urgency, the court
can for that reason decline to exercise its
powers under
rule 6
(12) (a). The matter is then not properly on the
court’s roll, and it declines to hear it. The appropriate order
is ordinarily
to strike the application from the roll. Thus enables
the applicant to set the matter down again, on proper notice and
compliance,”
12
[34]
Hawker Air
Services
tells us what the appropriate order should be but it is
silent on what the consequences of such an erroneous order would be
where
the substantive merits were clearly not dealt with. In
Vena
v Vena
, Jones, J discusses
Hawker Air Services
and
correctly in my view says the following:
“
My
understanding of an order for the dismissal of a claim in
circumstances such as these is that, generally speaking, it is
equivalent
to an order for absolution from the instance, in which
event it is open to an applicant to set the matter down again. In a
given
set of circumstances, it may be that dismissal may amount to a
final judgment on an issue, with the consequence of res judicata.
But
that is not in the normal course where the case turns on a procedural
point, and, I believe, it is not the case here…”
[35] Although I agree
that the appropriate order in a matter where urgency has not been
shown should be striking the matter from
the roll, it seems to me
that even where the word dismissed is used it does not necessarily
mean that the dismissal amounts to
a final order. One will still have
to enquire, where there is doubt, whether the matter was dismissed on
the merits or not. If
it was dismissed on the merits then the order
is final. If not, then it is not final. A finding that a matter is
not urgent does
not mean that there are no merits in the applicant’s
case. Even if a matter is dismissed for lack of urgency it can and
should
be re-enrolled. To reason otherwise would be to allow form to
triumph over substance.
[36] The same applies in
my judgment to applications for rescission that are out of time and
not accompanied by an application for
condonation. Although the
appropriate order would be to strike it from the roll, dismissing it
does not mean that the merits of
the rescission application have been
considered. A commissioner may only hear the rescission application
if it is accompanied or
preceded by a proper application for
condonation.
[37] To sum up. The
commissioner could not consider the rescission application which was
out of time without an application for
condonation. He could
therefore not exercise his powers, duties or functions in terms of
section 144
because a condition precedent (condonation) has not been
fulfilled. His order dismissing the application was just another way
of
saying I cannot consider the application at this stage because
there is no application for condonation. Without such application
I
have no jurisdiction to exercise my powers in terms of
section 144
of
the LRA.
[38] I conclude that
Cellier did not finally perform his statutory function or duty in
relation to the merits of the rescission
application on 12 August
2004. It cannot therefore be said that he exhausted his powers and
discharged his mandate in relation
to the rescission application. The
Court
a quo
erred in coming to the conclusion that the ruling
of 12 August 2004 rendered Cellier
functus officio
and that he
could therefore not entertain the subsequent applications for
condonation and rescission on 26 February 2007. There
were proper
applications before him. He applied his mind and granted the
applications. It is not suggested that his ruling should
be reviewed
and set aside on any other ground other than him being
functus
officio
. The Court
a quo’s
order relating to the
ruling of 26 February 2007 ought to be set aside.
[39] The order of 26
February 2007 rescinded the award of 5 February 2004 (the default
award). The award of 5 February 2004 can
therefore not be made an
order of court because it does not exist anymore. That application
ought to have been dismissed because
there was no award to make an
order to court. The order of the Court
a quo
making it an
order of court should also be set aside.
[40] As stated above the
order of the Court
a quo,
pertaining to the rulings of 10 May
2007 and 3 July 2007, is not challenged. They were correctly set
aside by the Court
a quo.
[41] Taking all the
circumstances of this case into consideration, especially the
dilatoriness of the appellant, fairness and the
law dictate that no
order as to costs should be made in this matter.
[42] The Director of the
CCMA is requested, in the interest of justice, to ensure that the
arbitration proceedings are expedited.
[43] I accordingly make
the following order:
(a) The appeal is upheld
with no orders as to costs.
(b) The order of the
Court a quo is set aside and replaced with the following;
i. The three applications
are consolidated.
ii. The application to
set aside the ruling of Commissioner Cellier dated 26 February 2007
is dismissed .
iii. The rulings of
Commissioner Cellier, dated 10 May 2007, and Commissioner Matshaba,
dated 3 July 2007, are set aside.
iv. The application to
make the arbitration award dated 5 February 2004 an order of court is
dismissed.
v. There is no order as
to costs.
_____________
MUSI AJA
I agree,
_______________
WAGLAY AJP
I agree,
_______________
NDLOVU AJA
APPEARANCES:
FOR THE APPELLANT: Mr.
Botha
CORNEL BOTHA ATTORNEYS
FOR THE RESPONDENT: Mr.
Khoza
RAWU
1
Section
158
(1) (c) reads as follows:
“
(c) The Labour Court may make
any arbitration award or any settlement agreement an order of the
court.”
2
Section
138
(5) (b) (i) reads as follows:
“
If a party to the dispute
fails to appear in person or to be represented at the arbitration
proceedings, and that party had not
referred the dispute to the
Commission, the commissioner may
c
ontinue
with the arbitration proceeding in the absence of that party.”
3
The
relevant parts of
section 143
reads as follows:
“
(1) An arbitration award
issued by a commissioner is final and binding and it may be enforced
as if it
were an order of the Labour Court, unless it is an
advisory arbitration award.
…
An Arbitration award may only be enforced in terms of
subsection (1) if the director has certified that the arbitration
award
is an award contemplated in subsection (1)…”
4
See
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) at paragraph 88
5
D
M Pretorius: The Origin of the functus officio doctrine, with
specific reference to its application in Administrative Law 2005
SALJ vol 122 page 832 at832-833.
6
Cora
Hoexter: Administrative Law in South Africa 2
nd
Edition Juta 2012 at page 277.
7
In
my view neither the restrictive nor the broad approach should be
embraced or rejected in a matter like this, where the case
was not
properly canvassed and the empowering Act is clear. Prof Hoexter
seems to be in favour of the narrow approach. In other
jurisdictions
with identical provisions the broad approach has been followed.
Section 33(1) of the Australian Acts Interpretation
Act 1901 (C+L)
which is word for word the same as our section 10(1) has been found
to give administrative decision makers the
power to consider and
remake a decision, unless the statute, upon a proper construction,
indicated that the power was not to
be exercised from time to time,
but was spent by its first exercise. See
Minister
of Immigration, Local Government and Ethic Affairs v Kurtovic
(1990)
92 ALR 93
at 112 and 119-120; Pfeiffer v Stevens
[2001] HCA 71
(185
ALR 183)
. Brown and Evans in their
work Judicial Review of Administrative Action in Canada Canvasback
Publishing, 1998 at section 12:6100
state that the effect of a
provision similar to our section 10 (1) is that unless the
legislation precludes a further decision
or the decision is subject
to a form of estoppel, non-adjudicative decisions may be
reconsidered and varied from time to time.
See Kurukkal v Canada
(Minister of Citizenship and Immigation)(F.C.)
(2010) 3 F.C.R. 195.
8
[2000] FCA 789
;
(2000)
99 FCR 251
at paragraph 58
9
1965
(3) SA 709
(O.P.A)
10
Section
124 (2) reads as follows:
“
(2) An Insolvent who is not
entitled under subsection (1) to apply to the court for his
rehabilitation and who has previously
given to the Master and to the
trustees of his state I in writing and by advertisement in the
Gazette not less than six weeks’
notice of his intention to
apply to the court for his rehabilitation may so apply –
After twelve months have elapsed from the confirmation
by the Master, of the first trustee’s account in his estate,
unless
he fall within the provisions of paragraph (b) or (c); or
After three years have elapsed from such confirmation
if his estate has either under this Act or prior law been
sequestrated
prior to the sequestration to which he desires to put
an end and if he does not fall within the provisions of paragraph
(c);
or
After five years have elapsed from the date of his
conviction of any fraudulent act in relation to his existing or any
previous
insolvency or of any offence under section one hundred and
thirty-two, one hundred and thirty-three or one hundred and
thirty-four
of this Act or under any corresponding provision of the
Insolvency Act, 1916 (Act 32 of 1916):
Provided that no application for rehabilitation under
this subsection shall be granted before the expiration of a period
of four
years from the date of sequestration of the estate of the
applicant, except upon the recommendation of the Master.”
11
See
Mtirara v KSD Municipality
[2010] JOL 25037(TK)
Vena v Vena and
Another
2010 (2) SA 148
(ECP); POPCRU& Others v National
Commissioner of the SARS & Others
[2006] JOL 18047
(T); Ledimo &
Others v Minister of Safety and Security & Others
[2007] JOL
21032
(0).
12
[2006] ZASCA 51
;
2006
(4) SA 292
(SCA) at 299 F – 300A