In applications of this nature the fundamental question is whether the party to whom the award was made, has made a case as contemplated in section 144 of the Labour Relations Act, 1995, which allows for a commissioner to rescind, where an award:

  1. Was erroneously sought or erroneously made in the absence of any party affected by it;
  2. Contains and ambiguity or an obvious error or omission, but only to the extent of that ambiguity, error or omission;
  3. Was granted as a result of a mistake common to the parties to the proceedings; or
  4. Was made in the absence of any party, on good cause shown.

 

In terms of the provisions of the Labour Relations Act,   a party should only refer and Arbitration Ruling or Award for rescission whereby the party to which the award or ruling was made was absent from the hearing and can show on “good cause” why they were absent or were not in willful default.

 

In Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration & Others (2007) 28 ILJ 2246 (LAC), the court held that good cause should be read into s144 of the LRA. The decision, in that case, confirmed what had already been decided in Northern Training Trust v Maake & Others (2006) 27 ILJ 828 (LC), where the test for rescission in terms of s144(a) of the LRA was said to be the following:

“The enquiry in an application for rescission on an arbitration award is consequently bipartite. The first leg is one which is concerned with whether or not the notice of set-down was sent, a probability then created that the notice sent was received. The second leg to the enquiry is one which concerns itself with the reasons proffered by the applicant who failed to attend the arbitration proceedings. Such applicant needs to prove that he or she was not wilful in defaulting and that he or she has reasonable prospects of being successful with his or her case, should the award be set aside. However, the applicant need not deal with the merits of the case.”

 

The issue of wilful default rests on the applicant to prove, and the applicant has failed to provide an adequate reason for being absent from the hearing.

 

The issue of “erroneously made” refers to the content of the award, and does not amount to replacing an award or ruling with an entirely new award. The party alleging an error in the award must show on good cause that;

  1. Any clerical or arithmetical error in the ruling so as to correct the error.
  2. Supplement or exclude any other costs or interest on an award where it contains a clear error or omission.

 

In Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298(A), the court stated the principle of functus officio in the following terms:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject-matter has ceased.”

 

A Commissioner must in considering an Application for Rescission, not replace the award with a substantially new award.   Accordingly, a Commissioner may only correct errors on the award or ruling, or in the case of an ambiguity, give meaning so as to remove the ambiguity and give true effect and meaning to an award. In West Rand Estates Ltd v New Zealand Insurance Company 1926 AD, the court held that the interpretation itself does not alter the sense and substance of the judgment or order.

 

If a party is contending the conduct of the Commissioner or any issue relating to an Arbitration that was conducted and the substance of the ruling is in dispute.   In such instances, the party must refer a matter for review in accordance with the Rules in terms of Section 145 of the Labour Relations Act.

 

Article by: Wesley Lazarus

Dispute Resolution Official – George