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[2018] ZALCD 23
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Ntombela and Others v United National Transport Union and Others (D 1724 / 2018) [2018] ZALCD 23; (2019) 40 ILJ 874 (LC) (6 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
REASONS
Reportable
Case
no:
D 1724 / 2018
In
the matter between:
MFANO PHILEMON
NTOMBELA & 49 OTHERS
Applicants
and
UNITED NATIONAL
TRANSPORT UNION First
Respondent
PASSENGER RAIL AGENCY
OF SOUTH AFRICA
Second Respondent
COMMISSIONER A
DEYSEL
Third Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Fourth Respondent
Heard: 12 October 2018
Delivered: 6 November
2018
Summary:
Jurisdiction –
Labour Court does have jurisdiction to consider urgent applications
to intervene in the case of incomplete
arbitration proceedings –
exceptional and compelling reasons however required –
exceptional circumstances not shown
Urgency
– applicant must establish compelling considerations of urgency
– proper urgency not shown – substantial
redress in due
course available – matter not urgent
Section
158(1B) – principles considered – principles applicable
to bringing review applications in incomplete arbitration
proceedings
considered – when it would be appropriate to bring such
proceedings
Interdict
– interdicting further arbitration pending review –
interdict requirements considered – no prospects
of success on
review – no right to relief exists – alternative remedies
available
Functus
officio
–
principles
considered – ruling by commissioner one of jurisdiction –
can be revisited under section 144(b) of the LRA
– commissioner
not
functus
officio
Costs
– proceedings an abuse of process – costs ordered
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This
judgment concerns a matter that should never have burdened this
Court. It was a dispute that could have been properly dealt
with and
concluded at the Commission for Conciliation, Mediation and
Arbitration (‘CCMA’), where the dispute was actually
still pending with only arbitration to follow. In the end, and for
the reasons elaborated on below, the applicants were acting
pursuant
to what I believe to be ulterior purposes, and to retain an advantage
resulting from a disputed promotion for as long
as possible.
[2]
I feel
compelled to make certain policy statements about applications such
as these, especially where parties were at all times
legally
represented. It is simply untenable for litigants to continue to
pursue applications that are simply hopeless and have
no substance.
In
Mashishi
v
Mdladla NO and Others
[1]
the Court held:
‘
Judge
Owen Rogers recently suggested that it is improper for counsel to act
for a client in respect of claim or defence which is
hopeless in law
or on the facts. (Rogers ‘The Ethics of the Hopeless Case’
December 2017 30(3)
Advocate
46.) Although these assertions are directed primarily at counsel (the
article having been published in the South African Bar Journal),
the
same principles apply to attorneys, and indeed all those who have the
right of audience before a court.) By this he means that
counsel must
be able to formulate a coherent argument comprising a series of
logical propositions which have a reasonable foundation
in law or on
the facts and which, if they are all accepted by the court, will
result in a favourable outcome, even if counsel believes
that one or
more of the essential links are likely to fail. But counsel acts
improperly when she is ‘quite satisfied’
that one or more
of them will fail. In particular, there is an ethical obligation on
counsel to ensure that only ‘genuine
and arguable’ cases
are ventilated, and that this be achieved without delay (at 51).
’
[3]
This case
is a matter in point. It was persisted with as an urgent application,
when urgency had long since dissipated due to complete
lack of
diligence on the part of the applicants in prosecuting the matter. It
was an application that on the merits, as I will
elaborate on
hereunder, was completely hopeless. There was simply no basis or
reason for the applicants to have stood in the way
of this matter
simply being determined by the CCMA, which is far more in line with
the primary objective of the expeditious resolution
of employment
disputes.
[2]
[4]
The above
being said, I now turn to the matter at hand. In the notice of
motion, the applicants ask that the matter be considered
as one of
urgency. The applicants also pray for an order that pending the
outcome of a review application, all further arbitration
proceedings
currently pending before the CCMA between the applicants and the
first and second respondents be interdicted and prevented
from
proceeding.
[5]
The matter
came before me for argument on 12 October 2018. It was opposed by
both the first and second respondents. After hearing
argument by all
parties and on the same day, I granted the following order:
‘
1.
The applicants’ application is dismissed with costs.
2.
Written reasons will be handed down on 6 November 2018.’
[6]
This
judgment now constitutes the written reasons referred to in paragraph
2 of my order,
supra
.
I will commence by setting out the background facts.
The
relevant background
[7]
The
relevant background facts relevant to deciding this matter are in
essence undisputed. For ease of reference, I will refer to
the first
respondent as ‘UNTU’ and the second respondent as ‘PRASA’
in this judgment.
[8]
The
applicants were all members of a representative trade union in PRASA,
being SATAWU. UNTU is also a representative trade union
in PRASA.
[9]
This matter
arose as far back as October 2014, when PRASA made a number of
appointments and issued appointment letters, to various
employees,
which included the current applicants. As far as the applicants were
concerned, these appointments constituted a promotion,
and as such,
they should have received an increase in remuneration and benefits.
When this did not happened, SATAWU pursued an
unfair labour practice
dispute against PRASA to the CCMA on 8 December 2015, under case
number KNDB 15998 – 15. UNTU was
not joined to this dispute.
The dispute was specifically about the applicants being promoted, but
not being paid accordingly, as
the basis for the unfair labour
practice.
[10]
This unfair
labour practice dispute between the applicants, SATAWU and PRASA
ultimately proceeded to arbitration at the CCMA on
19 February 2016.
The matter was however never arbitrated, but a settlement agreement
was concluded. The salient terms of this
settlement agreement were as
follows:
‘
1.
The respondent shall do computations of what the individual
applicants are owed in terms of salary adjustments that are
outstanding
and that shall be done by the respondent no later than 29
February 2016.
2.
The respondent shall thereafter table the proposal to the applicants
detailing how much they will be paid and when they
will be paid. That
shall be done no later than 15 March 2016.
3.
Once the parties have agreed on clause 2 above then the outstanding
payment shall be commenced by no later than 27 April 2016.
’
This
agreement was only binding between PRASA, SATAWU, and the membership
of SATAWU (which included the applicants).
[11]
Not to be
outdone, UNTU referred a dispute to the CCMA on 3 September 2016
against PRASA, in which it challenged the very appointments
of the
applicants referred to above. According to UNTU, these appointments
were contrary to the Recruitment and Selection policy
of PRASA. This
dispute was allocated case number KNDB 11030 – 16. It was also
an unfair labour practice dispute.
[12]
The dispute
by UNTU had a rocky start. On 26 September 2016, commissioner Ngwane
ruled because the dispute was an unfair labour
practice dispute, it
had to be referred in 90 days, was referred out of time, and required
a condonation application. UNTU then
did apply for condonation, but
also contended that there was no need for condonation, as the dispute
was referred in time. Commissioner
Paul ruled on 9 November 2016 that
the dispute was referred in time, and no condonation was necessary.
[13]
The unfair
labour practice dispute by UNTU under case number KNDB 11030 –
16 proceeded to arbitration and came before commissioner
Sullivan on
30 January 2017. On that day, it became apparent that other parties
would be affected by the dispute brought by UNTU,
in particular the
applicants under case number KNDB 15998 – 15. Commissioner
Sullivan made a ruling to the effect that all
these parties had to be
joined to the proceedings, as co-respondents with PRASA, and that the
matter proceed as an unfair labour
practice to arbitration.
[14]
The
arbitration proceedings in case number KNDB 11030 – 16 brought
by UNTU ultimately was set down for arbitration on 30 June
2017. Yet
again, it was not arbitrated, but only UNTU and PRASA concluded a
settlement agreement. The salient terms of the settlement
agreement
were:
‘
1.
The promotion of SATAWU members by PARSA was not in accordance with
PRASA’s Recruitment and Selection policy.
2.
UNTU’s claim of an unfair labour practice arising from the
promotion of the SATAWU members was upheld.
3.
The promotions of the SATAWU members are set aside
.’
The
settlement agreement concluded between UNTU and PRASA as aforesaid
was only binding between these two parties, and was not extended
to
the applicants or SATAWU.
[15]
The above
situation was an entirely unsatisfactory state of affairs. On the one
hand, there was a settlement agreement pursuant
to an unfair labour
practice dispute between SATAWU, the applicants and PRASA, in which
it was in effect agreed that the applicants
were promoted, and that
their increase in remuneration pursuant to such promotion would be
calculated. On the other hand, there
was an agreement in an unfair
labour practice dispute between UNTU and PRASA, in which it was
agreed that the appointment of the
applicants were contrary to
PRASA’s own recruitment and selection policy and were set
aside.
[16]
In an
attempt to resolve this conundrum, UNTU caused the unfair labour
practice dispute under case number KNDB 11030 – 16,
to which
the applicants were in any event joined as co-respondents, to be set
down for arbitration. This dispute then came before
the third
respondent as arbitrator, on 28 February 2018. In a ruling handed
down on 6 March 2018, the third respondent expressed
his reservations
about whether the dispute was in fact an unfair labour practice
dispute, and whether the applicants and SATAWU
were properly parties
to the matter. He concluded that the CCMA did not have jurisdiction
to arbitrate an unfair labour practice
dispute under case number KNDB
11030 – 16 as it appeared to be a dispute about the
interpretation and application of a collective
agreement, and
directed that the matter be set down for argument to decide whether
the CCMA had jurisdiction to arbitrate a dispute
about the
interpretation of application of a collective agreement.
[17]
The matter
was then again set down before the third respondent on 3 July 2018
pursuant to the above ruling. In these proceedings,
UNTU proceeded to
move an application in terms of section 144(b) of the LRA,
[3]
because of the fact that the third respondent, in making his ruling,
appeared to omit most of the essential background referred
to above,
and erroneously decided that UNTU did not pursue an unfair labour
practice dispute, but in fact a dispute about the interpretation
or
application of a collective agreement. UNTU contended that it always
pursued an unfair labour practice dispute, and that it
would simply
be counter-productive to have a hearing and argument about whether
the CCMA can consider a dispute about the interpretation
or
application of a collective agreement, when that was never its case.
[18]
It appears
that UNTU must have put up a convincing argument, and considering the
facts as set out above, in my view justifiably
so. In a ruling dated
11 July 2018, the third respondent then proceeded to have proper
regard to all the referral documents, the
earlier engagements in the
proceedings, and the dispute as actually articulated by UNTU, and
concluded that the dispute actually
pursued by UNTU was an unfair
labour practice dispute based on the fact that because PRASA did not
follow its own recruitment and
selection policy, the UNTU members
stood no chance to complete for the promotions. It is on this basis
that UNTU sought to set
aside the appointments of the applicants as
part of the unfair labour practice dispute, according to the third
respondent.
[19]
The third
respondent also in his ruling of 11 July 2018 concluded that his
jurisdictional ruling of 6 March 2018 was issued in error,
because he
did not consider several of the referral documents submitted by UNTU.
The third respondent reasoned as follows:
‘
The
CCMA does not have a discretion when it comes to jurisdictional
issues. Jurisdiction is objectively established. An incorrect
jurisdictional ruling may be corrected.
’
[20]
The third
respondent then proceeded to rule that the CCAM had jurisdiction to
consider and arbitrate the unfair labour practice
dispute brought by
UNTU, and he proceeded to define what this unfair labour practice
dispute entailed, for the sake of clarity.
He directed that the
matter be set down for arbitration.
[21]
The
applicants were not satisfied with this ruling. They believed that
the third respondent was
functus
officio
and thus exceeded his powers in making the ruling of 11 July 2018. I
may add at this juncture that it appears the applicants only
became
aware of this ruling on 17 August 2018.
[22]
The
arbitration proceedings were set down for 5 September 2018. The
applicants indicated only on 31 August 2018 that they intended
to
challenge the ruling of the third respondent of 11 July 2018, by way
of a review application to this Court. At virtually the
last moment
before the arbitration on 5 September 2018, the applicants then
sought a postponement of the arbitration, on the basis
of the
intended review. UNTU and PRASA however made it clear that the
arbitration would proceed.
[23]
The
applicants then arranged with the registrar of this Court that the
current application now before me be heard on 5 September
2018. But
the actual application was only filed on 11 September 2018, with a
set down date of 12 October 2018. Nonetheless,
the applicants
attended at the arbitration on 5 September 2018 and applied for a
postponement.
[24]
UNTU and
PRASA were in the end willing to agree to a postponement of the
arbitration on 5 September 2018. There is some dispute
in the
affidavits as to the basis of this agreement to postpone, but I need
not concern myself with it. Suffice it to say, the
arbitration did
not proceed on 5 September 2018. And this application followed about
a week later with a set down date more than
a month later.
[25]
Even when
this matter was heard before me, Advocate Kuboni, representing the
applicants, conceded that the matter was not urgent.
But he
nonetheless insisted that fairness and justice required that I
nonetheless decide the matter. But that is not how urgent
applications work, as I will discuss below. Needless to say, this
matter was vigorously opposed by UNTU and PRASA on the basis
of a
lack of urgency, and it was in fact suggested that this matter should
not just be struck from the roll, but dismissed.
Urgency
[26]
Urgent
applications are governed by Rule 8 of the Labour Court Rules.
This Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[4]
applied Rule 8 as follows:
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and the
degree to which the ordinarily applicable rules should
be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency that
is self created
when seeking a deviation from the rules.’
[27]
Further,
and when considering whether urgency has been established, it must be
considered whether an applicant would not be afforded
substantial
redress in due course, and the applicant must provide proper reasons
in support of such a case.
[5]
As
succinctly described by the Court in
Maqubela
v SA Graduates Development Association and Others
[6]
:
‘
Whether a matter is urgent
involves two considerations. The first is whether the reasons that
make the matter urgent have been set
out and secondly whether
the applicant seeking relief will not obtain substantial relief at a
later stage. In all instances
where urgency is alleged, the applicant
must satisfy the court that indeed the application is urgent. Thus,
it is required of the
applicant adequately to set out in his or her
founding affidavit the reasons for urgency, and to give cogent
reasons why urgent
relief is necessary. …’
[28]
Where an
applicant in effect seeks final relief, the Court must be even more
circumspect when deciding whether or not urgency has
been
established.
[7]
In
Tshwaedi
v Greater Louis Trichardt Transitional Council
[8]
the Court said
‘…
An applicant who comes to court on an
urgent basis for final relief bears an even greater burden to
establish his right to urgent
relief than an applicant who comes to
court for interim relief. ….’
[29]
The Court
must also further consider the interests of the respondent party, and
in particular, the prejudice the respondent may
suffer if the matter
is urgently disposed of. In
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
[9]
the
Court held as follows:
‘
But
it is not just about the applicant. Another consideration is possible
prejudice the respondent might suffer as a result of the
abridgement
of the prescribed time periods and an early hearing.’
[30]
Finally,
urgency must not be self-created by an applicant, as a consequence of
the applicant not having brought the application
at the first
available opportunity.
[10]
As
the Court said in
Northam
Platinum
[11]
:
‘…
the more immediate the reaction by the
litigant to remedy the situation by way of instituting litigation,
the better it is for establishing
urgency. But the longer it
takes from the date of the event giving rise to the proceedings, the
more urgency is diminished.
In short, the applicant must come
to Court immediately, or risk failing on urgency. …’
[31]
One final,
if not the most critical, requirement for urgency applicable to the
kind of applications such as the one now before me,
remains to be set
out. As stated above, this is an application which at its core
is an intervention in incomplete arbitration
proceedings before the
CCMA. In such an instance, what would be central to any urgent
intervention in this respect is that the
applicant must show that
exceptional circumstances, justifying immediate intervention, exist.
Quite apposite is the following
dictum
in
Mmatli
and Others v Department of Infrastructure Development (Gauteng
Province)
[12]
:
‘
In exceptional circumstances
the Labour Court may intervene on an urgent basis to interdict an
unfair dismissal. Thus, there is
no inherent jurisdictional obstacle
to obtaining such relief. As the Labour Appeal Court observed in the
Booysen
decision there is no closed list of factors to consider, but in my
view employees should not even consider seeking this extraordinary
relief if the unfairness is not glaringly obvious and of a very
fundamental nature which can be easily redressed. …
’
[32]
Although
the judgment in
Mmatli
dealt with intervening in incomplete disciplinary proceedings in an
employer, I am satisfied that the same reasoning would equally
apply
to incomplete arbitration proceedings in the CCMA. This would be
especially true where the intervention is based on a pending
review
challenge of a ruling made by an arbitrator in the course of the
proceedings. In this regard, Section 158(1B) is instructive,
which
reads:
‘
The
Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under the auspices
of the Commission or any bargaining council in terms of the
provisions of this Act before the issue in dispute has been finally
determined by the Commission or the bargaining council, as the case
may be, except if the Labour Court is of the opinion that it
is just
and equitable to review the decision or ruling made before the issue
in dispute has been finally determined.’
[33]
When the
above considerations with regard to urgency are then applied to the
applicants’ application, together with the applicants’
own concession of lack of urgency when the matter was argued, I am
compelled to conclude that there simply exists no basis on which
to
urgently intervene in this matter. As a point of departure, the
applicant has made out no proper case why the normal statutory
dispute resolution processes under the LRA should be allowed to run
its natural course to conclusion and immediate intervention
is
needed. I will deal with this issue more fully when I deal with the
issue of the applicants’ right to the relief sought,
later in
this judgment.
[34]
The
applicants did not bring this application at the earliest available
opportunity. Even if it is accepted that the applicants
only became
aware of the ruling on 17 August 2018, it still took about two months
to bring this application before Court. Added
to that, it was brought
when a postponement of the arbitration on 5 September 2018 had
already been secured, which simply expunged
any possible pressing
urgent need to have this application decided before the matter is
heard. I was also informed at the hearing
of this matter that the
CCMA has not even set the matter down again for arbitration, which
exacerbates the complete lack of urgency.
[35]
I am
further satisfied that the applicants can obtain proper and full
redress in the ordinary course. All that happened, by way
of the
ruling, is that the third respondent directed that the unfair labour
practice dispute by UNTU, which has been in existence
since 2016, and
of which the applicants were always fully aware, be set down for
determination with the applicants fully involved.
In my view, and
considering the unsatisfactory manner in which the dispute had been
dealt with before, especially by way of the
ineffective settlement
agreements concluded instead of arbitration being conducted, it may
quite feasibly be in the interest of
the applicants to have this very
issue arbitrated, once and for all. The factual basis of both
disputes under case numbers KNDB
15589 – 15 and KNDB 11030 –
16 are identical. If the applicants’ case succeeds, they may
still receive a promotion
and commensurate payment. That in my view
is substantial redress in due course.
[36]
As part of
any case of urgency, the interests of PRASA and UNTU must also be
considered. This matter has been dragging on since
the end of 2014.
To have it interdicted until the applicants’ review is
concluded will, all considered, delay the matter
for a further two
years. In the interim, the applicants get their increases, to the
detriment of PRASA and the members of UNTU
that have been prejudiced
by what happened. The overwhelming interest in this matter has to
that of achieving finality in respect
of the unfair labour practice
proceedings in the CCMA relating to the appointment of the
applicants, one way or another. I also
consider that if there is no
substance to the case of UNTU, then there is simply no reason why the
applicants should not welcome
attending at arbitration to finally
dispose of the case and cement their position once and for all, which
all along has been in
contention. There is no case made out, nor any
indication, that the applicants would not receive a fair and proper
determination
of the unfair labour practice dispute in the CCMA.
[37]
Therefore,
the applicants have failed to make out a case of urgency. The
requirements of Rule 8 have thus not been satisfied.
This is
clearly a matter of self-created urgency. Exceptional
circumstances justifying urgent intervention have not been
shown to
exist. For this reason alone, the application falls to be
struck from the roll, or dismissed. The Court in
February
v Envirochem CC and Another
[13]
accepted that urgency was not established, but the Court nonetheless
proceeded to dismiss the matter. For the reasons to follow,
I believe
that this is a similar situation where the matter must be finally
disposed of, and dismissed.
The
merits
[38]
The
applicants’ application is founded on one single contention.
According to the applicants, and as touched on above, the
third
respondent was
functus
officio
when he decided to hand down his ruling of 11 July 2018 in terms of
which the current pending unfair labour practice dispute in
the CCMA
was to be set down for arbitration. This ruling is being challenged
on review by the applicants under case number D 1719
/ 2018, and the
contention is that pending this review, further arbitration at the
CCMA should be stopped.
[39]
In order to
determine whether this case of the applicants has any merit, two
questions must be answered. The first is whether this
would be a case
where it would be appropriate or justified to stop arbitration
proceedings at the CCMA pending a review application
in the Labour
Court, the second is whether, even if intervention is justified, the
applicants’ review application has at
least some prospects of
success.
[40]
I will
start with the question whether the intervention sought by the
applicant, pending the review, is appropriate and justified.
In this
regard, and as touched on above, section 158(1B) provides some
answer. It in effect prohibits a review application in the
case of
CCMA arbitration proceedings that have not yet been completed, unless
an applicant shows it is just and equitable to do
so. In other words,
the applicants need to show proper cause why such a review should be
allowed. I can find no trace in the application
that the applicants
ever did this. It is incumbent on a review applicant to make out a
proper case in the founding affidavit in
such a review application as
to why this Court should exercise its discretion in entertaining the
review application on the basis
that it is just and equitable to do
so. Ordinarily, this failure by the applicants would render the
pending review application
to be incompetent, because no case is made
out to provide a justified basis upon which this Court can decide
whether the preliminary
review application is competent, which in
itself must dispose of the review based on the provisions of section
158(1B).
[41]
In any
event, and as a general proposition, this Court should be extremely
loathe to intervene in arbitration proceedings before
the CCMA that
have not been completed. This was recognized about a decade ago in
Trustees
for the time being of the National Bioinformatics Network Trust v
Jacobson and Others
[14]
where the Court held:
‘
There
are at least two reasons why the limited basis for intervention in
criminal and civil proceedings ought to extend to uncompleted
arbitration proceedings conducted under the auspices of the CCMA, and
why this court ought to be slow to intervene in those proceedings.
The first is a policy related reason — for this court routinely
to intervene in uncompleted arbitration proceedings would
undermine
the informal nature of the system of dispute resolution established
by the Act. The second (related) reason is that to
permit
applications for review on a piecemeal basis would frustrate the
expeditious resolution of labour disputes. In other words,
in general
terms, justice would be advanced rather than frustrated by permitting
CCMA arbitration proceedings to run their course
without intervention
by this court.
'
[42]
But even when
applying the general proposition as set out above, it is still
necessary to consider the nature of and reason for
the review
challenge, as this is certainly a relevant consideration in deciding
whether justice will be best served by allowing
the matter to
proceed. In the review application at stake in this instance, it
concerns a simple point of law. Was it permissible
for the third
respondent to issue a ruling on 11 July 2018 finding that the CCMA
does have jurisdiction to decide the unfair labour
practice dispute
by UNTU, when he has issued a ruling on 6 March 2018 deciding that
the CCMA does not have this jurisdiction? According
to the
applicants, this is not permissible, and the third respondent was
functus
officio
.
In my view, this is the kind of legal question that would justify the
bringing of a review application despite the arbitration
proceedings
at the CCMA not being concluded. The simple reason for this is that
it is the kind of issue that causes uncertainty,
and involves a legal
issue that would in fact dispose of a matter on the merits thereof if
successful, no matter what may happen
if the dispute is ultimately
arbitrated. This is what is contemplated by ‘just and
equitable’ in section 158(1B). This
was recognized in
Minister
of the Department of Correctional Services v Mpiko NO and Others
[15]
where the Court said:
‘
In a case
where there is uncertainty or confusion as to what are live issues
before the arbitrator, it must be clarified before
the arbitration
commences. In this case, although the review application concerns a
ruling made during the arbitration, is it apparent
from its reading
that there is uncertainty as to precisely what issues are live before
the arbitrator and whether the findings
of the Labour Court on the
issue of Mr Vos’ reinstatement are binding on the arbitrator.
Given the protracted nature of this
dispute, it is clearly in the
interests of justice to avoid confusion and protracted argument by
determining whether the ruling
should be set aside or not …’
[43]
I am
therefore satisfied that it was justified for the applicants to have
brought their review application, and that it would be
just and
equitable for this Court to consider such a review application
despite the existence of pending and incomplete arbitration
proceedings in the CCMA. So at least on this basis, the applicants
may have cause for the relief they sought.
[44]
But this is
not the end of the enquiry where it comes to whether the applicants
would be entitled to the relief of in effect interdicting
further
arbitration until this question is answered in the Labour Court.
Whether or not the interdict is sought in the form of
interim relief
or as final relief, the fact remains that the applicants have to
still satisfy certain interdict requirements. Considering
that the
applicants have brought this matter on the basis of seeking interim
relief, this would mean that the applicants have to
at the very least
show the following, as articulated in
National
Council of SPCA v Openshaw
:
[16]
‘…
(a)
A
prima
facie
right. What is
required is proof of facts that establish the existence of a right in
terms of substantive law;
(b)
A well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually granted;
(c)
The balance of convenience favours the granting of an interim
interdict;
(d)
The applicant has no other satisfactory remedy.’
[45]
In
Workforce
Group (Pty) Ltd v National Textile Bargaining Council and Another
[17]
it was held:
‘
In
order to establish a prima facie right for the urgent interim relief
sought, the applicant has to show that this is one of those
exceptional circumstances where the court should intervene in
uncompleted arbitration proceedings.’
[46]
The above
situation thus necessitates the answering of the second question I
have referred to above, being whether the review application
has some
prospect of success. It is in this respect that the applicants’
application falls far short. What is undoubtedly
true is that there
was initially a ruling issued by the third respondent, first
declining jurisdiction in respect of UNTU’s
unfair labour
practice dispute, followed by a later ruling in which the third
respondent found that the first ruling was in error
and that the CCMA
indeed had jurisdiction to entertain that dispute. The simple
question now is whether this conduct of the third
respondent was not
permissible, based on the fact that he was in fact
functus
officio
.
[47]
It must
firstly be considered how the ruling of 11 July 2018 came about. The
undisputed evidence was that UNTU had moved an application
in terms
of section 144(b) of the LRA before the third respondent on 6 July
2018 to correct / vary the initial ruling. It is further
clear from
the first five paragraphs of the ruling of 11 July 2018 that the
third respondent records that there were a number of
critical factual
considerations that never came to his attention when the first ruling
was issued. But more importantly, the third
respondent recognized
that whether or not the CCMA would have jurisdiction is a question of
objective fact, and if these facts
show that the CCMA indeed has
jurisdiction, he is duty bound to correct an error.
[48]
I find no
fault in the approach adopted by the third respondent. The reasoning
that jurisdiction is determined based on the existence
of objective
facts establishing this is undoubtedly correct.
[18]
The simple reality is that the third respondent issued his ruling of
6 March 2018 based on the assumption that UNTU had pursued
a dispute
relating to the interpretation or application of a collective
agreement to the CCMA. In so deciding, he had no regard
to the
amended referral document and the process that followed it.
[49]
The third
respondent always had a duty to decide the true nature of the dispute
before him for arbitration. This was authoritatively
decided in
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others
[19]
as follows:
‘
A
commissioner must,
as
the LRA requires, "deal with the substantial merits of the
dispute". This can only be done by ascertaining the real
dispute
between the parties. In deciding what the real dispute between the
parties is, a commissioner is not necessarily bound
by what the legal
representatives say the dispute is. The labels that parties attach to
a dispute cannot change its underlying
nature. A commissioner is
required to take all the facts into consideration including the
description of the nature of the dispute,
the outcome requested by
the union and the evidence presented during the arbitration. What
must be borne in mind is that there
is no provision for pleadings in
the arbitration process which helps to define disputes in civil
litigation. Indeed, the material
that a commissioner will have prior
to a hearing will consist of standard forms which record the nature
of the dispute and the
desired outcome. The informal nature of the
arbitration process permits a commissioner to determine what the real
dispute between
the parties is on a consideration of all the facts.
The dispute between the parties may only emerge once all the evidence
is in
.
'
[50]
The same
approach has recently again been confirmed by the Constitutional
Court where it comes to arbitration proceedings conducted
under the
auspices of the CCMA. In
September
and Others
v
CMI
Business
Enterprise CC
[20]
it was said:
‘
In
my view, the commissioner is not bound by a party’s
categorisation of the nature of the dispute. Rule 15 clearly intended
the commissioner to have the right and power to investigate and
identify the true nature of the dispute. …’
The
Court concluded:
[21]
‘
It
would therefore be wrong to adopt the Labour Appeal Court’s
approach, which essentially precludes the courts from referring
to
evidence outside of the certificate of outcome and referral form, to
determine the nature of the dispute conciliated. The general
rule is
that the referral form and certificate of outcome constitute prima
facie evidence of the nature of the dispute conciliated.
However, if
it is alleged that the nature of the dispute is in fact different
from that reflected on such documents, the parties
may adduce
evidence as to the nature of the dispute. …’
[51]
Once the
third respondent ascertained that the dispute actually referred to
the CCMA for arbitration by UNTU was an unfair labour
practice
dispute, as he was duty bound to do, despite his earlier ruling, did
this now mean that the third respondent was in effect
stumped and was
unable to correct this? Especially considering that ultimately his
findings in this regard as contained in his
ruling of 11 July 2018,
all considered, was actually correct? I cannot accept this to be the
case. In
PT
Operational Services (Pty) Ltd v Retail and Allied Workers Union on
behalf of Ngweletsana
[22]
the Court summarized the
functus
officio
doctrine as follows:
‘
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
cognisable
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. …
’’
[52]
Also, and
in
Solidarity
on behalf of Smook v Department of Transport, Roads and Public
Works
[23]
the Court described the doctrine as follows:
‘…
The
rationale of the doctrine is founded on the principle of the rule of
law which holds that individuals should be entitled to
rely on
governmental decisions, and to be able to plan their lives around
such decisions, insulated from the injustice that would
result from a
sudden change of mind on the part of the functionary. An official who
has discharged his official function by making
a decision is unable
to change his mind and revoke, withdraw or revisit the decision,
unless it is vitiated on acceptable grounds
such as fraud or want of
jurisdiction. The doctrine applies only to final decisions. And
'finality is a point arrived at when the
decision is published,
announced or otherwise conveyed to those affected by it'. In order
for the decision to be regarded as final,
it must have been passed
into the public domain in some manner.’
[53]
Certain
central considerations thus emerge in deciding whether the third
respondent was entitled to in effect revisit his initial
jurisdictional ruling. Firstly, it must be considered whether the
decision on jurisdiction made by the third respondent was a final
decision that would equally dispose of the substance (merits) of the
matter. Secondly, it must be considered whether the decision
was
conveyed to the affected parties. And finally, it has to be evaluated
whether the intervention would be permitted by the provisions
of the
LRA from which the third respondent derives his power.
[54]
From the
outset, it had to be emphasized that jurisdictional rulings by CCMA
arbitrators, other than condonation rulings, are not
final rulings.
It is trite that jurisdictional rulings of CCMA arbitrators are
rulings of convenience.
As
held in
SA Rugby Players
Association and Others v SA Rugby (Pty) Ltd and Others
[24]
:
‘
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. …’
[55]
Condonation
rulings are different, because these rulings arise from the fact that
the CCMA already had no jurisdiction for want
of compliance with the
time periods under the LRA, and deciding a condonation application
then requires that a commissioner exercise
a discretion as to whether
the CCMA would nonetheless entertain the matter. If condonation is
refused, the matter is finally disposed
of, and this would include
the merits of the case. In
Mlambo
v Safety and Security Sectoral Bargaining Council and Others
[25]
the Court held:
‘
In
regard to rulings, it follows that this doctrine would find
application in similar circumstances to those identified by Conradie
AJ above. Thus, rulings on an application for condonation in respect
of a late referral of a dispute or rescission for example,
are
ordinarily in the nature of being complete in all respects and
dispose of all matters that were in dispute. These rulings are
irrevocable and arbitrators cannot at their whim revisit them unless
under special circumstances as envisaged under s 144 of the
Labour
Relations Act. However, a ruling as to whether an employee was
dismissed as contemplated in s 186 of the Labour Relations
Act, or
whether one was an employee as contemplated in s 213 of the same Act
for all intents and purposes remains provisional until
such time that
the arbitrator is satisfied that the objective facts placed before
him have satisfied jurisdictional requirements
to enable him to issue
a competent award …
’
[56]
All said,
the subject matter of the jurisdictional ruling of the third
respondent did not finally dispose of the merits of the case.
It only
was a determination as to the nature of the dispute that was placed
before the CCMA for arbitration. In making this ruling,
the actual
merits of the matter need not be considered or decided. Ultimately,
the true or real nature of the actual dispute may
only be determined
once all the evidence was in, at arbitration, and even at that point
it would be competent for the third respondent
to decline
jurisdiction. In simple terms, the third respondent had not yet
discharged all the duties and functions bestowed upon
him by the LRA
in finally bringing this matter to an end. As held in
Mlambo
:
[26]
‘
Where,
having assumed jurisdiction, it later transpires that those facts do
not satisfy jurisdictional requirements, nothing in
my view prevents
an arbitrator from changing his mind provided that the initial ruling
is not one of those referred to as being
irrevocable. It might be
argued that this approach could encourage vacillation by arbitrators
when issuing provisional rulings,
thus resulting in parties sitting
in arbitration proceedings that might as well turn out to be an
expensive academic exercise.
Inasmuch as there might be merit in
these arguments, one would rather be sitting with a final outcome
that is valid, fair, legally
sound, competent and enforceable than
one that is a nullity.
’
[57]
Next, it
must be considered that the power of the third respondent to
intervene arises from section 144 of the LRA.
[27]
In
PT
Operational Services
[28]
the Court said:
‘
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 s 144 of the LRA. They may not do so whenever they
like, but may do so if the jurisdictional facts in s 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.
’
[58]
In this
instance, section 144(a) and (d) would not apply, because the ruling
of 6 March 2018 was made after attendance by all the
parties at
arbitration and did not come about in the absence of a party.
[29]
Next, no case was made out of a mistake common to the parties, and
thus section 144(c) does not apply. This leaves only section
144(b),
relating to a variation of the jurisdictional ruling due an obvious
error, and then only to the extent of correcting that
error. In
Ekurhuleni
Metropolitan Municipality v Spies and Others
[30]
the Court dealt with section 144(b) as follows:
‘…
the rule
is a procedural step designed to correct quickly or expeditiously an
obvious wrong, a mistake or ambiguity in the judgment.
Where an
arbitration award expresses the true intention and the decision of
the commissioner, ordinarily, there would be no mistake,
inadvertent
omission or any oversight on the part of the commissioner or in the
award that was made. In the ordinary course of
things, an application
for variation of the order is limited to a clarification of or the
removal of any ambiguous language, patent
error or omission in the
award. …
’
[59]
In my view,
section 144(b) can competently apply in this instance. An excellent
example of this is the reasoning of the Court in
PT
Operational Services
.
[31]
The Court used an example of a judgment in
Ex
parte Koster
,
which concerned the rehabilitation of an insolvent in terms of the
Insolvency Act, where the master had indicated in writing that
he
would not object to the application, but when the application was
brought, it turned out that not only did it concern the issue
of
rehabilitation, but also included a prayer that certain immovable
property should vest in the applicant and that he be entitled
to deal
therewith as he deemed fit, without his curator having any right or
interest in this property. The master then refused
to recommend the
application for rehabilitation, because of the facts relating to the
property were only revealed in the application.
The applicant argued
that the master was
functus
officio
and should be held to his indication that he would not object to the
application. The Court referred the ultimate conclusion of
Erasmus J
in that judgment, who held that the master was not
functus
officio
because it was not a final decision and the application itself was
not before the master when he made his initial recommendation.
The
Court in
PT
Operational Services
then concluded as follows with reference to this judgment in
Ex
Parte Koster
:
[32]
‘
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 …
’
[60]
Similar
considerations apply
in
casu
.
When initially seized with this matter, the third respondent did not
have all the process in the CCMA proceedings brought by UNTU
before
him. He in error only had regard to an initial referral document
which was amended and had no regard to all the process
that followed
after that. This led to a wrong characterization of the dispute,
which could in any event only be properly determined
once regard was
had to all this evidence.
[61]
The third
respondent in my view in fact explained in his award that the ruling
of 6 March 2018 did not reflect his true intention,
as he would never
have made the ruling had it not been for the obvious error discussed
above. As it did not reflect his true intention,
it was open for
variation under section 144(b).
[33]
[62]
Further
examples bear mention. In
Central
Technical Services (Pty) Ltd v Metal & Engineering Industries
Bargaining Council and Others
[34]
the Court held that where an arbitrator in his award considered the
remuneration of all employees to be the same when it was not,
that
error needed to be rectified through an application for variation,
and not by way of review to the Labour Court.
[63]
In
Benicon
Earthworks and Mining Services (Pty) Ltd v Dreyer NO and Another
[35]
the
Court dealt with a situation where a commissioner made a final award
on the merits and awarded the employee re-employment coupled
with a
final written warning. But then having done so, the commissioner did
what the Court described as a ‘complete about
turn’, and
awarded fully retrospective reinstatement of the employee, relying on
section 144(b) to do this. The Court concluded:
[36]
‘…
the
commissioner (the first respondent) was not competent to do so in
terms of the powers given under s
144
(b
)
of the Act. The commissioner namely gave a completely new award by
granting unconditional reinstatement. The commissioner thus
exceeded
her powers as she was clearly functus officio after issuing the
'first award', having decided that the second respondent
should
merely be re-employed with a demotion and on a final warning
’
I
refer to this example to illustrate when it can be legitimately
contended that an arbitrator is
functus officio
. In
Benicon
,
the arbitrator considered the merits of the case, and finally
disposed of it. She made an award as to consequential relied, and
provided it to the parties. The matter was for all intents and
purposes finally over. There was no error on the part of the
commissioner
– she simply changed her mind. It should be
obvious that it then cannot be revisited by the commissioner under
section 144(b).
The matter
in casu
is nothing like this.
[64]
An
example contrary to the judgment in
Benicon
can be found in
SA
Municipal Workers Union v SA Local Government Bargaining Council and
Others
[37]
.
In that matter, the commissioner conveyed a preliminary view to the
parties about making his award retrospective, but when he
issued his
final award, the changed his mind, and did not. In this regard, the
Court said:
[38]
‘
As
already pointed out, the commissioner held a particular view with
regard to making his award retrospective and changed that view
when
he issued the final award. In my view nothing prevented him from
changing his view for as long as it was not what he presented
as his
final view. Of course it may not be advisable to do as the
commissioner did in this case as an expectation was or could
be
created in the minds of those who stood to benefit from his view, if
it finally became his decision. However, it cannot be said
on the
facts of this case that the
commissioner
was functus officio. The views expressed in his email cannot be said
to be his intended final and determinative view
of the matter. For
the functus officio doctrine to apply it is a requirement that there
be a final judgment or order. In
that
situation the commissioner would have no power to correct, alter, or
supplement the order because his jurisdiction in the case
has been
fully and finally exercised, unless he/she acts in terms of s 144 of
the Act. …
’
[65]
In
point however is the judgment in
Mlambo
.
[39]
The Court, in specifically considering whether a similar
jurisdictional ruling by an arbitrator, as the one now in issue
before
this Court, reasoned as follows:
[40]
‘…
it
follows that the ruling issued by the second respondent was not in
the nature of a final decision on the merits of the case.
The ruling
was not complete in all respects to dispose of the matters that were
in dispute, which was whether the applicant was
dismissed, and if so,
whether the dismissal was substantively and procedurally fair. This
ruling was provisional and issued for
the purposes of convenience.
This much can be gleaned from the second respondent's analysis in his
award where he states that in
dealing with the jurisdictional issues
for the purposes of his ruling, he had only dealt with procedural
fairness of the termination.
Thus the doctrine
of
functus officio
cannot
find application in the ruling. The mere fact that a ruling on
jurisdiction was issued and communicated to the parties does
not
imply that it is binding for all intents and purposes. …
’
The
Court ultimately concluded:
[41]
‘
To
this end, by coming to a different conclusion on the issue of
jurisdiction in his subsequent final award after having had regard
to
objective factors, it cannot be said that the second respondent
committed a gross irregularity in relation to his duties as
arbitrator …’
[66]
Considering
all of the above, I thus conclude that the applicant’s pending
review application relating to the fact that the
third respondent was
functus
officio
when issuing the ruling of 11 July 2018 has no substance. The third
respondent was ultimately well within his rights to have acted
as he
did, and his decision is ultimately correct and unassailable. The
applicants have thus failed to even establish a
prima
facie
right for the relief of interdicting further arbitration proceedings,
to be granted.
[67]
But there
is a further consideration that works against the applicants being
entitled to the relief they ask for. This is the consideration
of an
alternative remedy, which is similar to the issue of substantial
redress being available in due course discussed under the
heading of
urgency above. The arbitration proceedings have not even been set
down. The applicants have never actually engaged with
the third
respondent by way of a proper postponement application before him, in
terms of which he could then exercise his own discretion
as to
whether the matter should be postponed pending the review before this
Court being decided. Or the applicants could have simply
participated
in the arbitration, and if they not satisfied with the outcome, then
take all the determinations made in the proceedings
on review to this
Court. This situation was aptly described in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[42]
as follows:
‘
As
I have stated above, the applicant could have attended the part-heard
arbitration in order to finalize the matter and, had it
been
dissatisfied, taken it on review. Alternatively, it could have
applied to the arbitrator already hearing the matter to postpone
the
hearing pending the outcome of a review against his jurisdictional
ruling. Had the arbitrator refused, the CCMA would have
been functus
officio. The applicant could then have applied to the Labour Court to
review and set aside the arbitrator's refusal
to postpone. Instead,
the applicant launched an urgent application in this court - and
sought costs against the CCMA - in circumstances
where it had not
followed the procedure prescribed by the CCMA Rules …’
[68]
In
the end, one can hardly do any better than quote the following
applicable
dictum
in
EOH
Abantu (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[43]
:
‘
The
applicant will suffer no prejudice should the matter proceed to
arbitration. It will be able to raise the jurisdictional issue
it
would like to, and a commissioner will be able to weigh evidence on
the issue (after hearing all the evidence as this is an
issue which
is linked to the merits) and give a binding award. At that stage,
would any party be dissatisfied, it will be able
to seek to review
the award in accordance with the LRA. This will mean the Labour Court
will have the benefit of the CCMA's decision
and will not become
involved prematurely in matters. This will prevent a flood of similar
applications.
The
third respondent and the first respondent however do suffer
prejudice. The third respondent's dispute has been delayed due to
these applications despite having the right in terms of the LRA to
refer the matter to the first respondent for arbitration. Should
this
precedent be confirmed then the first respondent's efficient
resolution of disputes will be compromised …
’
[69]
In
sum, the applicants have thus failed to make out a case for the
relief they sought. They have failed to establish a
prima
facie
right to the relief sought, because the underlying review application
forming the basis of the relief sought in my view has little
prospects of success. The applicants have alternative remedies
available to them, all of which would provide them with the necessary
redress in due course once the arbitration proceedings have concluded
in the CCMA. Any finally, considerations of prejudice clearly
favour
UNTU and PRASA. The application must therefore be dismissed, and not
just struck from the roll for want of urgency.
[70]
This then
only leaves the issue of costs. The applicants were legally assisted
throughout these proceedings. The applicants should
thus have known,
from the outset that the current application, especially brought on
the basis of urgency, was doomed to fail.
As touched on above, I get
the distinct impression from the applicants’ conduct that they
are trying to stop the unfair labour
practice dispute from being
arbitrated so that they can enjoy the fruits of their possibly unfair
appointments for as long as possible.
There was nothing standing in
the way of the applicants simply participating in the arbitration,
where they were free to raise
all the defences they wanted. The kind
of approach adopted by the applicants in this case is not conducive
to the fundamental requirement
of the expeditious resolution of
employment disputes, and should be frowned upon. And finally,
the continuous failure by
litigants to heed the numerous warnings by
this Court where it comes to these kind of applications must be
visited with adverse
consequence. In terms of the broad discretion I
have with regards to costs, in terms of section 162 of the LRA, I
believe this
is a situation where a costs order against the
applicants was certainly earned, and justified.
[71]
It is for
all the reasons set out above that I made the order that I did, as
reflected in paragraph 5 of this judgment,
supra
.
S
Snyman
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants:
Advocate W S Kuboni
Instructed
by:
Hedder Attorneys
On
behalf of the First Respondent:
Advocate Z Ploos Van Amstel
Instructed
by: Fluxmans
Inc Attorneys
On
behalf of the Second Respondent: Advocate D J Sacks
Instructed
by:
Woodhead Bigby Inc
Attorneys
[1]
(2018) 39 ILJ
1607 (LC) at para 14.
[2]
See
Food
and Allied Workers Union on behalf of Gaoshubelwe v Pieman’s
Pantry (Pty) Ltd
(2018) 39 ILJ 1213 (CC) at para 187.
[3]
This provision is dealt with later in
this judgment.
[4]
(2010) 31 ILJ 112 (LC) at para 18.
[5]
Mojaki v Ngaka Modiri
Molema District Municipality and Others
(2015) 36 ILJ 1331 (LC) at para 17;
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others
[2012] JOL 28244
(GSJ) at para 6.
[6]
(2014) 35 ILJ 2479 (LC)
at para 32. See also
Transport
and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others
(2015) 36 ILJ 2148 (LC) at para 11.
[7]
[2002] JOL 9452
(LC) at
para 8.
[8]
[2000] 4 BLLR 469
(LC)
at para 11.
[9]
(2016)
37 ILJ 2840 (LC) at para 26. See also
IL
& B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another
1981(4) SA 108 (C) at 113D-114C.
[10]
See
Golding
v HCI Managerial Services (Pty) Ltd and others
[2015] 1 BLLR 91
(LC) at para 24;
National
Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum
Ltd and Western Platinum Ltd and Another
(2014) 35
ILJ
486 (LC) at para 50.
[11]
(
supra
)
at para 26. See also
Sihlali
and Others v City of Tshwane Metropolitan Municipality and Another
(2017) 38 ILJ 1692 (LC) at para 18.
[12]
(2015) 36 ILJ 464 (LC)
at para 13.
[13]
(2013) 34 ILJ 135 (LC) at para 17.
See also
National
Union of Metalworkers of SA and Others v Bumatech Calcium Aluminates
(2016) 37 ILJ 2862 (LC)
at
para 33;
Bethape v Public
Servants Association and Others
[2016]
ZALCJHB 573 (9 September 2016) at para 53.
[14]
(2009) 30 ILJ
2513 (LC) at para 4. See also
Jiba
(
supra
)
at para 11;
EOH
Abantu (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2010) 31 ILJ 937 (LC) at para 16.
[15]
(2018) 39 ILJ
2038 (LC) at para 20.
[16]
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 354.
See also
Pikitup (SOC) Ltd
v SA Municipal Workers Union on behalf of Members and Others (1)
(2014) 35 ILJ 201 (LC) at para 26.
[17]
(2011) 32 ILJ 3042 (LC) at para 18.
[18]
See
G4S
Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of SA
and Others
(2016)
37
ILJ
1832 (LAC)
at
para
18
.
[19]
(2008)
29
ILJ
2461 (CC)
at
para
66
.
See also
Health
and Other Services Personnel Trade Union of SA on behalf of Tshambi
v Department of Health, Kwazulu-Natal
(2016)
37 ILJ 1839 (LAC) at para 16;
Pikitup
(SOC) Ltd v SA Municipal Workers Union on behalf of Members and
Others
(2014)
35
ILJ
983 (LAC) at para 47;
National
Union of Metalworkers of SA on behalf of Sinuko v Powertech
Transformers (DPM) & others
(2014)
35 ILJ 954 (LAC)
at
paras
16-21
;
Coin
Security Group (Pty) Ltd v Adams and Others
(2000)
21
ILJ
925 (LAC) at paras 15-16;
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union and
Others (1)
(1998)
19
ILJ
260 (LAC)
at 269G-H;
Kroukam
v SA Airlink (Pty) Ltd
(2005)
26 ILJ 2153 (LAC)
at 2162F;
SA
Chemical Workers Union and Others v Afrox Ltd
(1999)
20 ILJ 1718 (LAC)
at 1726.
[20]
(2018) 39 ILJ 987 (CC) at para 43.
[21]
Id at para 52.
[22]
(2013) 34 ILJ
1138 (LAC) at para 24.
[23]
(2016) 37 ILJ
2626 (LAC) at para 13.
[24]
(2008)
29
ILJ
2218
(LAC) at para
40. See also
Qibe v Joy
Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration
and Others
(2015) 36 ILJ 1283 (LAC) at para 5;
Universal
Church of the Kingdom of God v Myeni and Others
(2015) 36 ILJ 2832 (LAC) at para 27
[25]
(2012) 33 ILJ 2427 (LC) at para 54.
The Court was referring to the judgment in
Independent
Municipal & Allied Trade Union v SA Local Government
Bargaining
Council and Others
(2010)
31 ILJ 1891 (LC)
at
paras
17-21
. See also
Gauteng Department of Local
Government v Mulima NO and Others
(2011) 32 ILJ 1095 (LC) at paras 10 and 14.
[26]
(
supra
)
at para 55.
[27]
The section reads: ‘
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-
(a) erroneously sought or erroneously made in the absence of
any party affected by that award; (b) in which there is
an
ambiguity, or an obvious error or omission, but only to the extent
of that ambiguity, error or omission; (c) granted
as a result
of a mistake common to the parties to the proceedings; or (d) made
in the absence of any party, on good
cause shown’.
[28]
(
supra
)
at para 28
[29]
Builders
Trade Depot v Commission for Conciliation, Mediation and Arbitration
and Others
(2012) 33 ILJ 1154 (LC) at para 11.
[30]
(2014) 35 ILJ
1283 (LC) at para 11.
[31]
See para 29 of the judgment.
[32]
Id at para 30.
[33]
See
Day
& Night Investigators CC v Ngoasheng and Others; Byrne v Day &
Night Investigators CC
(2000) 21 ILJ 1084 (LC) at para 9.
[34]
(2017) 38 ILJ
1651 (LC) at para 33.
[35]
(1999) 20 ILJ
118 (LC) at paras 11 – 12.
[36]
Id at para 13.
[37]
(2014) 35 ILJ
2824 (LAC).
[38]
Id at para 19. See also
Member
of The Executive Council, Free State Provincial Government: Tourism,
Economic and Environmental Affairs v Moeko and Others
(2013) 34 ILJ 2256 (LC) at para 28.
[39]
(
supra
)
fn 25.
[40]
Id at para 56.
[41]
Id at para 57.
[42]
(2011) 32 ILJ
2756 (LC) at para 38. See also
Workforce
Group
(
supra
)
at para 18.
[43]
(2010) 31 ILJ
937 (LC) at para 16.