IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C937/00
DATE: 29-10-2001
In the matter between:
C F MEYER Applicant
and
COMMISSION FOR CONCILIATION, First Respondent
MEDIATION AND ARBITRATION
ALEX TWIGG Second Respondent
J U D G M E N T
PILLERMER, AJ:
1. The applicant launched an application to review and set aside an unsigned
document purporting to be the arbitration award of the second respondent, Alex Twigg,
a Commissioner who heard the arbitration between the applicant and the third
respondent under the auspices of the Commission for Conciliation, Mediation and
Arbitration (the "CCMA"). The dispute related to the applicant's dismissal which he
alleged was unfair.
2. The review papers raise crisply as the first irregularity giving rise to the review
the fact that the copy of the award given to the applicant was unsigned and was
delivered beyond the 14 day limit set by section 138(7) of the Labour Relations Act of
1995. Section 138(7) reads as follows:
"Within 14 days of the conclusion of the arbitration
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proceedings:
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(a)the commissioner must issue an arbitration award, with brief reasons, signed by that
commissioner;
(b)the commissioner must serve a copy of that award on each party to the dispute or the
person who represented the party in the arbitration proceedings, and
(c)the Commission must file the original of that award with the Registrar of the Labour
Court."
Section 138(8) provides:
"That on good cause shown the director may extend the period within which the
arbitration award and reasons are to be served and filed."
3. When the matter was argued I was informed from the Bar by Mr George, who
represented the third respondent, that he too had made enquiries and only had an
unsigned copy of what was otherwise an award and that it did not appear ever to have
been signed. The Commissioner, I was told, had apparently emigrated and could not
be contacted. In the light of section 138(7)(c), namely that the original of the award
has to be filed with the Registrar of the Labour Court, I made enquiries from the
Registrar after the matter was argued, and he ascertained that the section had not
been complied with and no award, signed or unsigned, had been filed as required by the
section. Further enquiries were made of the CCMA and following upon that a
communication was addressed to me by the first respondent (that is the
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CCMA) under the hand of a person by the name of Shahieda Mohamed. In that
communication the following was said:
"This is to confirm that Mr Meyer, the applicant in the above matter, was here to check the
contents of the file and it was confirmed that there was only one copy of an unsigned
and undated arbitration award. I have been in touch with Vikele Shabangu(?) at the
Director's office who has confirmed that the commissioner did not apply for an
extension."
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That letter is signed.
4. In the circumstances it is plain that section 138(7) has not been complied with
and that no extension was sought or granted under section 138(8) and that there is no
reasonable prospect, it seems, that the section will ever be complied with.
5. It has been held that it is possible in a given case for there to be substantial
compliance with section 138(7) which will not vitiate the award. I refer in this regard to
the judgment of Landman, J in Free State Mining Association Ltd t/a Alpha Farm v
SACCAWU & Another 1999(3) BLLR 223 (LC). In that case, an award signed within the
14 days was served on the parties outside the 14 day limit and it was contended that it
was therefore invalid. The Court found that it was not a nullity and, in particular, said
the following at page 226E-G:
"It is quite clear that having regard to human nature, a commissioner may not always be
able to sign and issue an award within the 14 day period. If a commissioner were to
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sign or to issue the award after that period, it would not be in accordance with the aims of
this Act to visit such an omission with invalidity. If that were to be done it would simply
mean that the dispute had not reached finality and the arbitration proceedings would
have to take place de novo. This could not have been intended. There may, of
course, be circumstances where an award is issued so late that different consequences
may follow."
The judge in that case found that the delay was not such as would have the effect in the
case before him.
5. In this case, there is no signed award and there is never likely to be one. The
requirement in the Act that a commissioner take responsibility for his or her award by
signing it and doing so within the stipulated time is, in my view, not so onerous a task
that the failure should simply be excused. While a short delay does not render the
award invalid, an extended delay, in my view, may well have that effect, but a total
award invalid, an extended delay, in my view, may well have that effect, but a total
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failure to comply must have that effect. Indeed, until it is signed or there is proof that it
is in the form decided by the arbitrator, if there is some good reason why the arbitrator
was unable to sign, there is, in my view, no award at all.
6. In the circumstances I am of the opinion that what has been produced in this
matter is a nullity and unless and until it is signed, can have no legal effect. There
seems little likelihood that it can or will be rectified and, in my view, it is in any event,
too late to attempt to do so now. I therefore consider that the matter should be heard
by the CCMA
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de novo.
7. In all those circumstances I believe that it is not appropriate to deal with the other
matters raised in the review in this judgment and I do not propose to do so. The
parties, it seems to me, have been let down by the first respondent and the second
respondent. I am of the opinion that the second respondent should be more vigilant
and do the best it can do to ensure that section 138(7) is complied with by its
commissioners and that the awards issued by it are signed and that they are lodged
with the Registrar of the Labour Court, as required by the Statute.
8. Although it is extremely unusual for an award of costs to be made against the
CCMA, in my view, this is an unusual case and as a mark of displeasure in relation to the
manner in which it was handled I believe that an extraordinary award in relation to
costs is appropriate.
9. In all the circumstances I make the following order:
1. The unsigned document purporting to be an award of the second respondent is
declared to be a nullity.
2. The matter is referred back to the first respondent to be heard de novo.
3. The first respondent is ordered to pay the costs of the application.
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PILLERMER, AJ
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