REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANESBURG
CASE NO. JR307/2003
In the matter between:
SHOPRITE CHECKERS (PTY) LTD Applicant
And
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER N MASEKO Second Respondent
SACCAWU obo A MAKHUBELA Third Respondent
A MAKHUBELA Fourth Respondent
JUDGMENT
MURPHY AJ:
1. The applicant seeks an order reviewing and setti ng aside the ruling of
the second respondent, a commissioner in the employ of the first
respondent (“the CCMA”), dated 29 November 2002, re scinding an
order of the CCMA dated 24 March 1999 dismissing th e claim for relief
arising out of the fourth respondent’s alleged unfair dismissal. It further
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seeks an order substituting the ruling of the CCMA with one in which
the fourth respondent’s application for rescission is refused.
2. The fourth respondent (“the employee”) was emplo yed by the
Applicant at its OK Silverton store. In August 1998 she was involved in
an incident in which she allegedly used her staff c ard dishonestly, and
contrary to staff rules and policy, to purchase goo ds at a discounted
price for a person who was not a close family member.
3. The alleged conduct was investigated at a discip linary hearing on 13
August 1998. On the basis of findings and admissions made during the
hearing, the chairperson found her guilty of the al leged misconduct.
Taking into account the seriousness of the offence, balanced against
mitigating factors, the chairperson imposed a sanction of dismissal.
4. The employee appealed internally against the cha irperson’s finding
that her dismissal was procedurally fair, alleging that the branch
manager was not entitled to impose a sanction of di smissal. On 14
September 1998 the internal appeal tribunal conclud ed that “the
enquiry did follow the correct procedural steps for a dismissal and that
the necessary authorisation was given". Consequent ly the dismissal
was upheld.
5. On the following day, 15 September 1999, the emp loyee with the
assistance of the first respondent (“the union”) referred her dismissal to
the CCMA for conciliation in terms of section 191 o f the LRA. When
conciliation failed the CCMA issued a Certificate o f Outcome to that
effect on 11 November 1998. On the same day the un ion made a
request for arbitration in terms of section 136 rea d with section
191(5)(a)(i) of the LRA.
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6. An arbitration hearing was scheduled for 24 Marc h 1999. When the
employee and the union failed to appear, the arbitr ator, presumably at
the request of the applicant, dismissed the claim.
7. Some three months later, in July 1999, the unio n and the employee
became aware of the arbitrator’s order dismissing t he claim. Yet, for
reasons not entirely clear, they delayed for two mo nths and only filed
an application for rescission of the award in terms of section 144 of the
LRA on 30 September 1999.
8. Section 144, as it then read, provided:
“Any commissioner who has issued an arbitration awa rd, acting of the
commissioners own accord or, on the application of any affected party,
may vary or rescind an arbitration award –
(a) erroneously sought or erroneously made in the a bsence of
any party affected by that award;
(b) in which there is an ambiguity, or an obvious e rror 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.
9. The application for rescission lodged with the C CMA and served on the
applicant averred that affidavits of the union and the employee would
be relied upon to obtain the relief sought. Howeve r, the applicant was
only served with the affidavit of the union represe ntative in which he
deposed that his absence at the arbitration hearing was the result of
his ill health and not receiving proper notificatio n of the arbitration. He
offered no explanation for why it had taken him 6 m onths to make
application for rescission of the award.
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10. It is not clear when the application for rescis sion was served upon the
applicant. However, on 24 November 1999 the applic ant’s attorneys
addressed a letter to the union advising that it ha d knowledge of the
application and stating the following:
“Unfortunately our client is not in possession of t he full documentation of
your application and we therefore cannot prepare an appropriate
response. We are not in possession of the supporti ng affidavit of Agnes
Makhubela, referred to in your application and we t herefore request that
you fax us a copy, urgently, in order to enable us to respond to your
application.”
11. When no response to this request was forthcomin g, the applicant’s
attorneys again wrote to the union on 6 December 19 99 referring to
their earlier correspondence and noting that they w ere unable to
formulate a response without the affidavit of the employee.
12. Because this letter too failed to yield a satis factory response, the
applicant’s attorneys wrote on 13 December 1999 to the Case
Management Officer of the CCMA in the following terms:
“ An application for rescission has been brought by SACCAWU in this
matter. Unfortunately a full set of papers has not been filed with Shoprite
Checkers. We have been trying to obtain the docume nts from
SACCAWU, but Mr. Lethole who is cited as the refere nce for SACCAWU,
does not seem to have any knowledge of the matter. We have also
attended at the officer of the CCMA to retrieve a c opy of the file, but the
file could not be traced.
It is our intention to oppose the Application for R escission in this matter,
but we cannot draft opposing papers until we are in possession of the full
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set of documents. In the circumstances, we request that you kindly
attempt to locate this file and advise of the status of this matter”.
13. When nothing came of these enquiries. The appl icant’s attorney wrote
on 13 January 2000 to the union and copied the CCMA again
requesting a full set of papers urgently.
14. Although the employee in her response to this a pplication claims to
have had no knowledge of this correspondence, neith er the union nor
the CCMA have put up any denial that the correspond ence was
despatched and received by them. Nor is there any denial of the
applicant’s averment that not a single response was received to any of
these letters or that the applicant was unable to r etrieve a copy of the
CCMA file.
15. The applicant heard nothing further regarding t he application for
rescission for a period of 21 months until late Jun e 2001 when the
applicant’s attorneys received a second application for rescission
dated 6 June 2001 seeking an order rescinding “the decision by the
commission to dismiss the matter on 24 March 1999” and for the
matter to be heard afresh.
16. It is be noted that this application was filed 27 months after the
arbitrator made his award, almost 3 years after the dismissal of the
employee and 25 months after the union became aware of the
arbitrator’s ruling.
17. On this occasion the application for rescission was supported by an
affidavit deposed to by the employee explaining tha t she had been
unaware of the arbitration proceedings and that fre quent attempts by
her to get her union representative to proceed with the matter had
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been fruitless. She further averred that her prospe cts of success were
good and that she first became aware of the arbitra tor’s ruling in June
2000.
18. In response, the applicant’s Regional Personal Manager filed an
opposing affidavit contending that the employee was required to show
an active interest in any proceedings instituted by her. She stated:
“They cannot sit back and leave the matter in the h ands of their
representatives. I submit that in this instance th e facts will clearly show
that the deponent did not take appropriate action a nd did not pay this
matter the necessary amount of attention and that t he CCMA should not
rescind the arbitration award”.
19. The deponent goes on to submit that the employe e’s reasons for not
prosecuting the application are vague and unsatisfa ctory, especially in
the light of the fact that the union had been aware of the arbitrator’s
dismissal of the claim in June 1999 and that the em ployee’s claim to
have only became aware of the ruling in June 2000 i s improbable.
With reference to the then existing CCMA rule 24.2, the applicant
further submitted that an application for rescissio n of an arbitration
award must be made within 10 days of the date on wh ich the applicant
became aware of the award and that the rules made n o provision for
the late filing of an application for rescission to be condoned. Even
had condonation been possible, it was contended tha t a 25 month
delay was extraordinary and that the CCMA should no t condone the
application. Finally, it was submitted that the em ployee’s prospects of
success on the merits of the unfair dismissal claim were weak.
20. In its replying affidavit the employee claimed to have only become
aware of the CCMA ruling of 24 March 1999 in mid 20 01. The
applicant contested this in replication drawing attention to the averment
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in the union affidavit of 30 September 1999 in whic h the deponent
stated that “the employee is not working up to this stage”, suggesting
strongly that the union and the employee were in co ntact at a time
when the union knew about the ruling of 24 March 1999.
21. After the close of pleadings in the second appl ication for rescission
before the CCMA, in October 2001, the applicant rec eived no further
communication from the union, the employee or the C CMA with regard
to the application for rescission. The applicant’s attorneys attended at
the CCMA in August 2002 to enquire about the matter . They were
informed that “this was a very old matter and was ‘ out of jurisdiction’
and no longer on the system”.
22. On 10 January 2003, some 15 months after the fi ling of the replication
in the second rescission application, without havin g been afforded the
benefit of an oral hearing to canvass the issues in dispute on the
papers, the applicant received a ruling of the CCMA dated 29
November 2002 granting an order rescinding the arbi tration award of
24 March 1999.
23. The Commissioner’s ruling is cryptic and sparse in its reasoning. It can
be quoted in full:
“The applicant asserts in her application that she was not notified to
attend the arbitration hearing. As a result, she c ould not attend the
arbitration hearing. On the prospects of success, she asserts her
dismissal was unfair.
Ruling
The application must succeed for the following reasons:
1. The applicant was not in wilful default;
2. The applicant has good prospects of success.”
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24. It is a notable feature of the ruling that it c ontains no reference
whatsoever to of the extensive submissions made by the applicant in
its opposing and replicating affidavits. Moreover, it is not evident from
the ruling, which, if any, of the several documents filed with the CCMA
in the four year period between September 1998 and November 2002,
were taken into account by the Commissioner before he made the
ruling.
25. The applicant seeks review of the rescission ru ling in terms of section
158(1)(g) of the LRA, which empowers this court to review the
performance or purported performance of any functio n provided for in
the Act on any grounds that are permissible in law.
26. The commissioner’s discretion to rescind an awa rd erroneously sought
or made in the absence of any party is a function p rovided for on the
Act and hence is reviewable on the ordinary grounds recognized within
the scope of judicial review of administrative acti on. Thus, a decision
should not be capriciously or arbitrarily arrived a t, should observe the
tenets of natural justice, should take account of a ll relevant
considerations and ignore irrelevant ones, requiring the decision maker
to properly apply his mind, and should not be gross ly unreasonable,
mala fides or for an improper purpose. Moreover, the action should be
within jurisdiction. Since Carephone (Pty) Ltd v Marcus and others
(1998) 19 ILJ 1425 (LAC), labour law decisions are also expected to
meet the test of rationality. The decision must be rationally justified in
terms of the reasons given for the decision and be based on the
material properly before the decision-maker. There must be a rational,
objective basis justifying the connection made by t he decision-maker
between the material properly available to him and the conclusion
eventually arrived at.
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27. The applicant has raised a number of grounds up on which the decision
of the commissioner to rescind the award of 24 Marc h 1999 is
reviewable. The employee re-asserts that the commis sioner’s ruling
was justified on the material before him, that there was no wilful default
and that the commissioner had properly applied his mind to the
application. To my mind it is unnecessary to canvas s all the grounds of
review, as one ground in particular is fatal. The c ommissioner’s
apparent failure to give proper consideration to th e time-frame in this
matter is a strong indication that he failed to app ly his mind properly to
the application, the material and the submissions b efore him. Despite
the applicant clearly placing the lateness of the a pplication for
rescission in issue, the eventual ruling fails comp letely to address the
question. The commissioner’s unexplained assumption that he was
entitled without elaboration to set aside an award, made three and a
half years previously, evinces a complete disregard for the
submissions made by the applicant and the policy th at labour disputes
should be finalized expeditiously.
28. The first defective rescission application was made on 3 September
1999, six months after the award dismissing the cla im. The applicant
makes something of the fact that this application w as not accompanied
by an application for condonation for the late fili ng. For reasons which
will become apparent an application for condonation may not have
been necessary. In any event, I am persuaded that this application was
defective in that the applicant was never afforded a proper opportunity
to respond to it and indeed was never served with a complete
application. The fact that the union and the employee served a second
application for rescission more than two years afte r the award was
made is an indication that the first defective appl ication was
abandoned. Hence, it was the application for rescis sion filed in June
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2001 with which the CCMA was properly seised and in respect of
which it was obliged to render a decision. Litis contestatio was
reached in this matter in early October 2001 and th e CCMA took
another 13 months to render a decision. The second application for
rescission included a prayer for condonation.
29. The rules of the CCMA prior to late 2002 did no t provide for
condonation and rule 24.2 of the then existing rule s required a
rescission application to be made within 10 days of knowledge of the
judgment. Rule 32 of the amended rules requires an application for
rescission to be made within 14 days of the date in which the applicant
became aware of the ruling and rule 9 requires appl ications for
condonation to be made in accordance with a detaile d notice of motion
procedure provided for in rule 31. Had the commiss ioner been obliged
to entertain a condonation application and had such an application
complied with the requirements of the existing rule 31, it is arguable
that any failure by the commissioner to deal with t he condonation
application and to render a decision in relation to it would have resulted
in an absence of jurisdiction on his part to make a ruling on the
rescission application. On the assumption that the current CCMA rules
applied to his decision of 23 November 2002 he may have been
obliged to ensure that there was proper condonation application before
him in terms of Rule 9 and rule 31 and either to co ndone or reject the
late filing of the second rescission application. F rom his ruling it is
apparent that he did not do this and thus arguably lacked jurisdiction.
30. Unfortunately, neither party has addressed me o n the scope and
application of the rules and their impact on the qu estion of the
commissioner’s jurisdiction. However, for the reas ons which follow, it
is unnecessary to decide the point.
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31. Rescission applications before the CCMA need no t be brought in terms
of its rules on account of section 144 of the LRA b estowing a statutory
right upon litigants to seek rescission in appropriate cases falling within
its terms. Section 144 imports no express time lim it within which a
rescission application must be made and the use of the word “may” in
section 144 to delineate a commissioner’s powers to grant rescission
indicates that the power is discretionary. Moreove r, the statutory
power is founded on and borrows almost verbatim fro m Uniform Rule
of Court 42(1). In interpreting rule 42(1) our cou rts have held
consistently that rescission applications are: “a p rocedural step
designed to correct expeditiously an obviously wrong judgment or
order”- Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E) @
47IE-F. Thus even though rule 42(1), like section 144 of the LRA,
imposes no specific time limit within which a resci ssion application
should be brought, it is incumbent on a party bringing the application to
do so as expeditiously as possible, and, in any eve nt, within a
reasonable time. What is a reasonable time depends on the facts of
each individual case – (see Firestone South Africa (Pty) Ltd v
Genticuro AG 1977 (4) SA 298 (A) @ 306H; Promedia Drukkers en
Uitgewers (Edms) Bpk v Karmowitz and other 1996 (4) SA 411 (C) @
421G.)
32. Put in another way, although there in no expres s time limit provided for
in section 144 of the LRA it is incumbent on a comm issioner exercising
the discretion bestowed by the section to have rega rd to the common
law requirement that applications for rescission sh ould be brought
expeditiously within a reasonable time in the inter ests of legal certainty
and finality in judicial pronouncements. It appears from the
Commissioner’s ruling in this instance that he paid no heed at all to the
fact that the application before him was made almos t 2 years after the
fact that the application before him was made almos t 2 years after the
applicant obtained knowledge of the award, an inord inately long period
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when compared with the standard of 14 days provided in CCMA rule
32.
33. Hence, I am satisfied that the commissioner fai led to apply his mind
properly to the highly relevant consideration that the application for
rescission had not been brought within a reasonable time.
Accordingly, his ruling fails to be set aside and c orrected on that
ground alone.
34. In all of this I am mindful that the employee h as been less than well
served by the union. The union’s conduct in processing her application
for rescission, a relatively simple matter, has been deplorable. Had the
union responded to the applicant’s attorneys corres pondence
addressed to it in December 1999 the defect in the original application
would in all likelihood have been corrected and res cission may well
have been granted on a proper basis. Unfortunately , good order in the
conduct of civil proceedings does not permit the em ployee to hide
behind the incompetence of her trade union represen tative. I am in
any event persuaded that she must have known of the award in late
September 1999 and ought to have acted sooner than June 2001. On
this aspect I align myself with the remarks of Mybu rgh JP in Mziya v
Putco Ltd (1999) 2 BLLR 103 (LAC):
“The courts have traditionally demonstrated their r eluctance to penalize a
`litigant on account of the conduct of is represent ative but have
emphasized that there is a limit beyond which a litigant cannot escape the
results of his representatives lack of diligence or the insufficiency of the
explanation tendered”.
35. In the premises, I make the following order:
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35.1 The ruling of the Second Respondent dated 29 N ovember
2002 under case no. GA 45769 is hereby reviewed and set
aside.
35.2 The application of the third and fourth respon dents for
rescission of the arbitration award of 24 March 1999 in terms
of section 144 of the Labour Relations Act of 1995 is
refused.
35.3 There will be no order as to costs.
_________________
MURPHY AJ
ACTING JUDGE OF THE LABOUR COURT
Appearances:
For the Applicant: Perrot, van Niekerk and Woodhous e
Inc.
For the Fourth Respondent: Mr. Knoza, Retail and Al lied Workers
Union.
Date of Judgment: