THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case N o: JR699/202 1
In the matter between:
JOSEPH KEKGALEMILE LECOGO Applicant
and
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL First Respondent
P J GREYLING N. O Second Respondent
DEPARTMENT OF LOCAL GOVERNMENT
AND HUMAN SETTLEMENTS: NORTH WEST Third Respondent
D MOKEKE Fourth Respondent
Heard: 21 January 2025
Summary: variation application – third respondent was ordered to pay the
applicant an amount equal to eight months remuneration calculated at the rate of his remuneration at the end of the month before 20 October 2022. Applicant not satisfied with the amount he received from his employer – applicant
seeking variation and clarification in respect of ambiguous interpretation of
2
the order adopted by parties – courts decide real disputes between the parties
and do not give gratuitous legal advice - application dismissed.
Delivered: This judgment is handed down electronically by circulation to the
parties’ legal representatives by email and publication on the Labour Court’s
website. The date for hand- down is deemed to be 27 January 2025 .
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PHAKEDI , AJ
Introduction
[1] The applicant approached this court seeking an order in the following terms:
1. That the late filing of this application be condoned in terms of Rule
42(1)
1 of the Labour Court Rules as amended.
2. That Order 32.3 of the judgment of the Honourable Court per Snider AJ
delivered on 20 October 20222 be varied and clarified in terms of Rule 41
(1)(b) read with Rule 16A(1)(a)(ii)3 with regards ambiguity.
[2] The applicant filed a review application under the above- mentioned case
number and the matter was considered and decided by Snider AJ on 20
October
2022. The applicant ’s claim of unfair labour practice was successful and the award
was reviewed and set aside. His employer, the Third Respondent was then ordered
to pay him an amount equal to eight months remuneration calculated at the rate of
his remuneration at the end of the month before 20 October 2022. The third
1 This subrule provides that “the court may extend or abridge any period prescribed by these rules on
application, and on good cause shown, unless the court is precluded from doing so by an Act ”.
2 Paragraph 32.3 of the order reads “the third respondent is ordered to pay the applicant, within 14
days of the date of this judgment, an amount equal to eight months remuneration calculated at the
rate of his remuneration at the end of the month before the handing down of this judgment” .
3 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
3
respondent implemented the court order on 28 November 2022 and paid the
applicant his basic salary of R38 075.50 prior to deductions. The third respondent
does not oppose this application.
[3] The applicant contends that the third respondent remunerated him on the
wrong scale instead of R41 103.87 which includes incentives and allowances.
[4] The order was implemented in November 2022 and the applicant only brought
this application two years later on 23 October 2024. No explanation has been provided for his failure to comply with the time periods prescribed in the Rules discussed hereunder.
Variation applications
[5] Applications for variation are governed by section 165 of the Labour Relations
Act
4 (LRA) which provides that the Labour Court, acting of its own accord or on the
application of any affected party may vary or rescind a decision, judgment or order —
‘(a) erroneously sought or erroneously granted in the absence of any party
affected by that judgment or order;
(b) in which there is an ambiguity, or an obvious error or omission, but only
to the extent of that ambiguity, error or omission; or
(c) granted as a result of a mistake common to the parties to the
proceedings. ’
[6] Rule 46 (1)(a) of the Labour Court Rules regulates rescission and variation
applications and provides that the court may, in addition to any other powers it may have, of its own motion or on application of any party affected, rescind or vary any
order or judgment:
‘(i) erroneously sought or erroneously granted in the absence of any party
affected by it;
4 Act 66 of 1995, as amended.
4
(ii) in which there is an ambiguity or a patent error or omission, but only to
the extent of such ambiguity, error or omission;
(iii) granted as the result of a mistake common to the parties. ’
[7] Rule 46 (2) prescribes that any application for rescission or variation must be
filed within 15 days of the applicant’s acquiring knowledge of the defect, order or
judgment and the court may, on good cause shown, set aside the order or judgment on such terms as it deems fit.
[8] The primary ground relied upon in this application is that the dispute between
the parties relates to their ambiguous interpretation of paragraph 32.3 of the order
dated 20 October 2022. I am not convinced that section 165 read with Rule 46 finds application in the circumstances mentioned herein. The ambiguity mentioned in
these prescripts does not include the parties’ ambiguous interpretation of the order.
Evaluation
[9] It is trite that the moment the final judgment is granted, the court’s authority
and jurisdiction over the subject matter ceases. However, in labour matters, this is subject to specific exceptions outlined in section 165 of the LRA and Rule 46 of the
Labour Court rules. Section 165(b) read with Rule 46 (1)(ii) provides that the court has an inherent power to vary a judgment containing an obvious error or omission only to the extent of that error or omission. In First Consolidated Leasing Corporation Ltd v McMullin,
5 the court held that a “ patent error or omission meant”…. “A result of
which the judgement or order granted does not reflect the intention of the judicial officer pronouncing it ”.
[10] In Minister for Correctional Services and Another; In R e: Van Vuuren v
Minister for Correctional Services and Others
6 the Constitutional Court considered
Rule 42 of the Uniform Rules (which is identical to section 165 of the LRA) and held that:
5 1975 (3) SA 606 (T) at 608.
6 2011 (10) BCLR 1051 (CC) at para 8.
5
‘A court may clarify its order or judgment to give effect to its true intention
which is to be ascertained from the language used without altering the sense
and substance of the judgment if, on its proper interpretation, the meaning remains unclear. But once a court has pronounced a final judgment or order, it has, itself, no authority to correct, alter or supplement it. The rationale for this
principle is delineated by Ngcobo J in Zondi v MEC Traditional and Local
Government Affairs that:
“In the first place a Judge who has given a final order is functus officio . Once
a Judge has fully exercised his or her jurisdiction, his or her authority over the
subject matter ceases. The other equally important consideration is the public
interest in bringing litigation to finality. The parties must be assured that once
an order of C ourt has been made, it is final and they can arrange their affairs
in accordance with that order.”
[11] In First National Bank of South Africa Ltd v Jurgens and Others ,
7 the court
held that the error or the omission must be attributable to the court itself, and relief will only be accorded where the terms of the judgment do not reflect the true intention of the presiding judge. In this matter, it is not the applicant’s case that the
ambiguity arises from the judgment itself but that both parties have adopted an
ambiguous interpretation. In essence, what the applicant is seeking before this court is a gratuitous legal advice and the Labour Court is a creature of statute and can only do what is within its powers as envisaged in section 158 read with 165 of the LRA. The order dated 20 October is clear and unambiguous in respect of the obligations i mposed on the third respondent.
[12] In Radio Pretoria v Chairman, Independent Communications Authority of
South Africa, and Another
8 the Supreme Court of Appeal held that:
‘Courts of appeal (including courts of first instance) often have to deal with congested court rolls. They do not give advice gratuitously. They decide real disputes and do not speculate or theorise… Furthermore, statutory
7 1993 (1) SA 245 (W) at 246 E – G.
8 2005 (1) SA 47 (SCA) at para 41.
6
enactments are to be applied to or interpreted against particular facts and
disputes and not in isolation. ’
[13] The last hurdle faced by the applicant in this matter is that he failed to take the
court into confidence and provide an explanation as to why it took him two years to
bring this application. In the absence of any condonation application explaining why
he could not bring this application within the prescribed period of fifteen days from
the date he became aware of the existence of the order , I am not satisfied that he
has shown good cause that he is entitled to the order sought in his notice of motion.
[14] The application was unopposed as such the issue of costs does not arise.
[15] In the premises, t he following order is made:
Order
1. The application is dismissed.
2. There is no order as to costs.
G.C. Phakedi
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: TJ Matsimela
Instructed by: Tau Matsimela Attorneys Inc.
For the Respondent: No appearance