Bidvest TMS Group Industrial Services (Pty) Limited and Another v Commission for Conciliation, Mediation and Arbitration and Others (P07/18) [2020] ZALCPE 1; [2020] 4 BLLR 381 (LC) (23 January 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

Case No: P07/18

In the matter between:

BIDVEST TMS GROUP INDUSTRIAL SERVICES

(PTY) LIMITED

First Applicant

CLOVER SA (PTY) LIMITED

Second Applicant

and

THE COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First Respondent

A NYONDO N.O

Second Respondent

PAULSEN N.O

Third Respondent

MASIXOLE KAFILE AND 28 OTHERS Fourth – Further Respondents

Heard: 14 August 2019

Delivered: 23 January 2020

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] In their amended Notice of Motion, the first and second applicants (Applicants) seek various orders including;

a) That the third respondent (Commissioner Paulsen) be joined as an interested party to the proceedings;

b) That the late referral of the review of the rescission ruling dated 24 May 2017 issued by Commissioner Paulsen be condoned in terms of section 158(B) of the Labour Relations Act (LRA).[1]

c) That the rescission ruling of Commissioner Paulsen dated 24 May 2017

and the arbitration award of the second respondent (Commissioner Nyondo) issued on 4 December 2017, be reviewed and set

aside, and that the matter be remitted back to the CCMA to be heard de novo.

[2] Other than the above orders, the applicants also seek an order that the review application archived by virtue of the provisions of clause 11.2.7 of this Court’s Practice Manual be revived. The application is opposed by the Fourth – Further Respondents (The Employees).

Background:

[3] The Employees are all employed by the first applicant (Bidvest) in terms of fixed term contracts. They comprise of Pickers and General workers, and are deployed at the Port Elizabeth warehouse of the second applicant (Clover), to provide picking, packing, loading and palletising services.

[4] In 2013, Clover decided to double the size of its warehouse, which had resulted in the in-house resource for picking and packing being insufficient to deal with the increase in the workload. Clover then

decided to outsource its business of picking, loading and packing at the warehouse to Vericon, a division of Bidvest. The agreement with Vericon was based on a ‘fee per load picked’ by employees. Vericon undertook to provide partial outsourcing to Clover of various services, including picking of stock, palletising of stock, wrapping and load preparation. The relationship agreement

between Bidvest (trading as Vericon) and Clover that was entered into in September 2015 was renewed in a second Master Service

Agreement which came into effect on 1 January 2016.

[5] On 15 November 2016, the Employees referred a dispute in terms of the provisions of section 198B of the LRA. A conciliation meeting held on 12 December 2016 could not resolve the dispute, and it was then referred for arbitration. Central to the Employees’ dispute was that they had worked for two years on contract basis at Clover, and that since Bidvest was a labour broker, they ought to have been transferred to permanent employment by Clover as the client under the provisions of section 198B of the LRA.

[6] Bidvest then launched an application for a misjoinder of Clover on 26 January 2017. The Employees had opposed the application. The arbitration proceedings were scheduled for 9 February 2017 before Commissioner Paulsen, who had issued a ‘Misjoinder Ruling’ on 6 March 2017. The net effect of this ruling was that Clover should not have been joined as a party to the dispute, as it did not have a direct and substantial interest in the matter.

[7] It is common cause that subsequent to the ruling of 6 March 2017,

Bidvest had then employed the Employees on a permanent basis, and on terms and conditions that it deemed to be no less favourable than those enjoyed by its other employees doing the same or similar work. The appointments were confirmed in letters dated 13 March 2017.

[8] According to Bidvest, the permanent employment of the Employees effectively resolved the dispute (related to section 198B of the LRA) between itself and the Employees. Upon being offered permanent employment by Bidvest, the Employees had however refused to sign contracts in that regard, and had nonetheless continued to render their services. Bidvest’s contention is that the Employees by rendering their services, have tacitly accepted permanent employment with Bidvest since 13 March 2017.

[9] The Employees subsequently brought an application for a rescission of the ‘Misjoinder Ruling’ in April 2017, on the basis that ;

9.1 Their dispute was in terms of section 198A of the LRA, and that Bidvest was a labour broker as evident from its registration with the Compensation Commission of the Department of Labour, and a Letter of Good Standing issued in that regard;

9.2 There was an error following a misrepresentation by Bidvest that it was not a labour broker, and that Clover had an interest in the proceedings by virtue of the fact that Bidvest was rendering a labour brokering service to it.

[10] Commissioner Paulsen had then rescinded the initial ‘Misjoinder Ruling’ in a further ruling issued on 24 May 2017. The matter was then set down for arbitration before Commissioner Nyondo. On 31 October 2017, Bidvest and Clover launched yet another misjoinder application and raised other points pertaining to the jurisdiction of the Commission for Conciliation Mediation and Arbitration (CCMA).

[11] The application for misjoinder was heard on 21 November 2017 together with the merits of the dispute. The Employees had not filed any opposing papers to the misjoinder application or a response to the jurisdictional points raised, but had argued the matter on the applicants’ papers.

[12] In an arbitration award issued on 4 December 2017, Commissioner Nyondo inter alia found that the CCMA had jurisdiction to determine the dispute in terms of section 198D(1) of the LRA, since sections 198A and 198B of the LRA were applicable to the Employees. He then issued an order in the following terms;

‘The Applicants that were represented by N.E Mbewana Attorneys and Victor Ngumla, Matthews Silani, Courtney Miller, Mzontsundu Tswewu are deemed employees of Clover SA (Pty) Ltd with effect from 1 April 2015 in the case of those Applicants who were in the service of the First Respondent for three months or longer as of that date; and that all other Applicants that are covered by the award from their respective dates of finishing three months from their respective dates of engagements.’

The application to revive:

[13] The applicants instituted these review proceedings on 12 January 2018 and the only issue that necessitated the application for revival was that the Employees had for the first time in their written heads of argument, raised concerns regarding the non-compliance with the provisions of clause 11.2.7 of the Practice Manual of this Court[2]. In this regard, the Employees’ contention was that other than filing heads of argument on 15 April 2019, the applicants had not done anything to inform the Registrar of the Court that the matter was ready for a hearing. To this end, it was submitted on behalf of the Employees that the review application was treated as archived, unless the applicants could show good cause why it should be removed from the archives.

[14] In the founding affidavit in support of the application for revival, the applicants’ attorneys of record (Ms Johanette Rheeder) had proffered a substantial explanation as to the reason a request for a set-down date from the Registrar was not requested timeously. It is not necessary to outline that explanation in this judgment. Having had regard to several factors, including the reasonableness of the explanation proffered on behalf of the applicants, the fact that the matter was clearly ripe for a hearing upon it being timeously prosecuted, and further in the light of no discernible prejudice to the Employees, I am satisfied that good cause was shown, and there is no reason why the review application ought not be revived.

The review of the rescission ruling:

[15] The applicants seek to review the rescission ruling issued by Commissioner Paulsen on 24 May 2017. The original Notice of Motion was filed and delivered on 12 January 2018, whilst the amended version was filed and delivered on 17 April 2018. To the extent that the application for rescission and the ruling in that regard were interlocutory, the provisions of section 158(1B) of the LRA clearly precludes a party from instituting review proceedings in respect of such rulings until the dispute is finally determined, unless this Court would be of the opinion that it would be just and equitable to review that decision or ruling before the main dispute is determined.

[16] In my view, there was therefore no need to seek condonation in respect of the review of the rescission ruling. Even if it could be argued that there was a need for condonation to the extent that it was common cause that the issue of the review of the rescission ruling was raised by the applicants in the amended pleadings, I am satisfied that they have demonstrated good cause for such condonation to be granted.

[17] In seeking to have the initial ‘Misjoinder Ruling’ issued on 6 March 2017 to be rescinded, the Employees’ case before Commissioner Paulsen was that;

17.1 They had referred a dispute in terms of section 198D(1) of the LRA, pertaining to the interpretation or application of sections 198A – C of the LRA.

17.2 A rescission was sought on the basis that Bidvest was a labour broker registered with Workmens Compensation Fund as could be gleaned from a copy of its Letter of Good Standing issued by the Fund. The initial ‘Misjoinder ruling’ was therefore issued in error following a misrepresentation by Bidvest that it was not a labour broker but an outsourcing company.

17.3 The Letter of Good Standing from the Fund was obtained on 10 April 2017, and it indicated the nature of Bidvest’s business as being that of a labour broker. Thus, had the Commissioner been made aware of that fact, he would not have granted the ruling.

17.4 The misjoinder ruling was prejudicial to them as they could not be employed by Clover and enjoy the same terms and conditions of employment like its other employees.

[18] Bidvest in opposing the rescission application had submitted that;

18.1 There was a Service Level Agreement between it and Clover in terms of which the latter as a client was provided with outsourcing services;

18.2 The rescission application based on new evidence was ill-founded and misguided, and that the Commissioner was functus officio.

18.3 There was no prejudice to the Employees since they were subsequently offered permanent contracts of employment with effect from March 2017, which provided them with job security;

18.4 There was no substance to the allegation that the Commissioner was misled as the Letter of Good Standing relied upon by the Employees was outdated, and a new letter submitted by Bidvest incorporating its four other entities demonstrated that they were not involved in the business of labour brokering.

[19] Commissioner Paulsen had condoned the late filing of the rescission application and rescinded the ‘Misjoinder Ruling’ on the grounds that;

19.1 The Letter of Good Standing, which Bidvest did not dispute, was due to expire on 30 April 2015. Thus, since the Employees had been employed for more than two years, it was possible that they were employed by Bidvest at the time that it was operating as a labour broker, and there could not have been an outsourcing arrangement with Clover at the time.

19.2 Bidvest operated as a labour broker up until at least 21 April 2015, which was something that would have influenced his decision in the ‘Misjoinder Ruling’.

19.3 It could not be said that Bidvest had fraudulently suppressed the Letter of Good Standing, but it had nonetheless withheld such information, when it was expected of it that it should have mentioned that it operated as a labour broker

[20] In seeking to have the rescission ruling reviewed and set aside, it was submitted on behalf of the applicants that;

20.1 Commissioner Paulsen had exceeded his powers and committed a material error of law, as none of the statutory requirements for a valid rescission as contained in section 144 of the LRA were met, and that the irregularity tainted the remainder of the arbitration proceedings.

20.2 Commissioners did not have a licence to reopen enquiries or to reconsider matters where binding rulings have already been made on the basis of additional new evidence, as this would contravene the fundamental principles of res judicata and functus officio.

20.3 The new evidence produced by the Employees in support of the rescission application did not contain information that would have precluded the arbitrator from issuing the first ‘Misjoinder Ruling’, and was produced simply to bolster their argument that Bidvest was in fact a labour broker.

20.4 Since Commissioner Paulsen had correctly found that the Letter of Good Standing produced by the Employees was not fraudulently concealed by Bidvest, the subsequent discovery thereof did not entitle them to a re-hearing of the misjoinder issue.

20.5 The proper cause of action for the Employees after the initial ‘Misjoinder Ruling’ was issued was to either take that ruling on review or in the alternative, to withdraw the dispute before the CCMA and refer it afresh, and seek direct relief against Clover.

[21] In opposing the application, it was submitted on behalf of the Employees that the review of the Commissioner Paulsen’s rescission ruling was an afterthought on the part of the applicants, and should not be granted on the grounds that;

21.1 Even though it could be accepted as a general rule that a judgment or order cannot be rescinded on the basis of new evidence unless the evidence was suppressed for fraudulent reasons, and that the CCMA is bound by the general rules relating to rescission, the Court should however not overlook the context in which the particular ruling occurred. In this regard, it was submitted that since the matter involved a labour dispute processed under an Act that permits a degree of informality in arbitration proceedings, the basis of the review of the rescission ruling was not whether the ruling was right or wrong, but whether it was reasonable in the circumstances.

21.2 Even if Commissioner Paulsen had exonerated the applicants from fraudulently suppressing the Letter of Good Standing, he did so mainly in respect to whether a costs order was warranted. He had however left the decision in the next phase of the proceedings to be dealt with on the merits. There was nothing wrong with this approach as it was not uncommon for commissioners when deciding interlocutory points, to leave certain issues for determination during the arbitration. The applicants on the other hand had appreciated the Commissioner’s approach, as they had similarly raised the issue of misjoinder at the arbitration proceedings before Commissioner Nyondo based on the fresh evidence.

21.3 If the applicants’ failure to produce the relevant documents was innocent as they had claimed, and Commissioner Paulsen was prepared to accept that, this was a mistake within the meaning of section 144(c) of the LRA, which was shared by the Employees.

21.4 The rescission ruling merely had the effect of re-joining Clover as an interested party, and did not deprive the applicants of an opportunity to satisfy Commissioner Nyondo that the relationship between them was not one covered by section 189A of the LRA.

The legal framework and evaluation:

[22] It is trite that once a court has ruled finally on a matter, it is functus officio, and it may not revisit its decision. It has been held that this principle favours relative certainty and finality as soon as possible concerning the scope and effect of orders[3]. A rescission application is therefore an exception to the general rule that judgments are final, and that a court may not alter or reverse its own judgments once they are granted. These principles are equally applicable to CCMA proceedings.

[23] The rescission of CCMA arbitration awards and rulings is governed by section 144 of the LRA[4]. To the extent that Commissioner Paulsen appears to have relied on the provisions of section 144(a) of the LRA, it is trite that a judgment is erroneously granted if there was an irregularity in the proceedings[5], or there existed at the time of its issue, a fact of which the Court was unaware, which would have precluded the granting of the judgment, and which would have induced the Court, if aware of it, not to grant the judgment. Commissioner Paulsen relied on this principle in reference to Cash Paymaster Services (Pty) Ltd v Mogwe and others[6]. Thus, once a court holds that an order or judgment was erroneously sought or granted, it should, without further enquiry rescind the order or judgment [7].

[24] Commissioner Paulsen had further accepted the proposition that a party cannot have a judgment set aside on the basis of evidence that was or ought to have been available before the judgment, and that the late discovery of a document which disproves the correctness of a judgment, will only be a ground for setting a final judgment aside if the successful litigant fraudulently suppressed the document and the other party only became aware of it after the judgment[8].

[25] Having accepted the above principles, and further having concluded that it could not be said that Bidvest in particular had fraudulently suppressed the Letter of Good Standing, Commissioner Paulsen inexplicably then held the view that Bidvest was in any event, a labour broker as could be gleaned from the Letter of Good Standing, and that it ought to previously have at least, mentioned that it operated as a labour broker. He further held that even though it could not be said that Bidvest had committed fraud or fraudulently misrepresented information with the intention to mislead, Bidvest had nonetheless withheld that information. The Commissioner again took into account that the Employees had brought the application for

rescission on the basis of new evidence that was subsequently obtained, which they had correctly believed that if he (Commissioner)

had it before, it could have played a role in him deciding the matter differently.

[26] It was submitted on behalf of the Employees that even if there was no evidence to suggest that the Letter of Good Standing was fraudulently suppressed, the Court should however not overlook the context in which the particular ruling occurred. In this regard, it was submitted that since the matter involved a labour dispute processed under an Act that permits a degree of informality in arbitration proceedings, the basis of the review of the rescission ruling was not whether the ruling was right or wrong, but whether it was reasonable in the circumstances.

[27] Inasmuch as it can be accepted that this Court being that of equity exercises some measure of flexibility, and that arbitration proceedings ordinarily involves some form of informality, the ultimate enquiry is whether it can be said that the decision of the Commissioner falls within a band of reasonableness in the light of the material placed before him or her[9].

[28] Taking into account what was placed before Commissioner Paulsen, and his conclusions as indicated above insofar as he had exonerated the applicants of any fraudulent conduct in regards to the discovery of the Letter of Good Standing, his overall conclusions are therefore extraordinary and clearly fall outside the band of reasonableness. Inasmuch as the Commissioner found that there was no fraudulent concealment of the Letter of Good Standing, he still proceeded to have regard to it in making his determination.

[29] It is further not correct as submitted on behalf of the Employees, that Commissioner Paulsen had exonerated the applicants from fraudulently suppressing the Letter of Good Standing mainly in relation to whether a costs order was warranted. Prior to dealing with the issue of costs, Commissioner Paulsen had specifically stated that; ‘In the matter at hand it cannot be said that the TMS (Bidvest) fraudulently suppressed the Letter of Good Standing. I am however of the view that it should at least have mentioned that it operated as a labour broker previously’.

[30] A second consideration is that once Commissioner Paulsen had formed the view that that Bidvest had not wilfully or fraudulently suppressed the Letter of Good Standing, that ought to have been the end of the matter in the light of the legal principles he had appreciated. To therefore have made such a conclusion, and to thereafter find that Bidvest was a labour broker on the strength of the same letter, and/or that it ought in any event have mentioned that it was a labour broker, or that it had withheld information is indeed perplexing, specifically when central to Bidvest’s defence was that it was not a labour broker at any stage.

[31] A further difficulty with the conclusions reached by the Commissioner is that even if he was inclined to accept the new evidence in rescinding his original ruling, it has been held that whatever the cause of action supporting the application for rescission is, it must have existed at the time the judgment sought to be rescinded was granted. This principle was laid down in Swadif (Pty) Ltd v Dyke N.O[10] where it was held that;

“... it is abundantly clear that at common law any cause of action, which is relied on as a ground for setting aside a final judgment, must have existed at the date of the final judgment. There must be some causal connection between the circumstances which give rise to the claim for rescission and the judgment and …”

[32] From the above principles, it is apparent that a rescission cannot be granted if the ground of rescission relied upon only came into existence subsequent to the judgment. In this case, Commissioner Paulsen had merely accepted that the Employees had obtained the Letter of Good Standing on 10 April 2017 even though no enquiry was made as to the reason it was only discovered when the application for rescission was launched. To the extent that the Commissioner had not found any fraudulent concealment and further to the extent that it was not established as to the reason that the Employees had discovered the letter after the initial ruling, the it (the letter) ought to have been ignored. The mere fact that the letter was placed before the Commissioner was not sufficient for it to be accepted and considered in making any finding.

[33] A further consideration was that Bidvest’s case before the Commissioner was that the letter was in any event outdated, and a new letter was produced by Bidvest which indicated that it did not operate as a labour broker. The Commissioner however had not even considered this argument to determine whether there was merit in it. Clearly ignoring such material placed before him constituted an irregularity, which had a distorting effect on the overall outcome.

[34] As it was correctly pointed out on behalf of the applicants, the provisions of section 144(a) of the LRA are not a licence for commissioners to reconsider matters were binding rulings were made, particularly on the basis of additional evidence having been produced, as this would contravene the fundamental principles of res judicata and functus officio. Again, and as was correctly pointed out on behalf of the applicants, the phrase; ‘if at the time there existed facts of which the judge was unaware of..’, does not imply if further evidence exists which was not placed before the judge and which might prove persuasive. It instead referred to facts which would have precluded default judgment being granted, such as for example, that the respondent not aware that matter was set down or any such similar reasonable explanation. To hold otherwise would clearly imply that following a final judgment, the unsuccessful party may ex post facto, seek evidence that would bolster its case, for the purposes of a reconsideration of the matter.

[35] In the absence of any evidence or suggestion that the ‘new evidence’ was fraudulently suppressed by the other party, the Courts, and commissioners, should be hard-pressed to accept that new evidence and reconsider their decisions. To this end, and to the extent that Commissioner Paulsen had relied on the provisions of section 144(a) of the LRA, there was nothing placed before him, that suggested that there was an irregularity in the proceedings leading to the initial ‘Misjoinder ruling’, or there existed at the time of the issuing of that ruling, a fact of which the he was unaware, which could have precluded the granting of the ruling and/or which could have induced him, if aware of it, not to grant the ruling. To have held otherwise constituted a material error of law.

[36] It was submitted on behalf of the Employees that the provisions of section 144(c) of the LRA applied to the facts of this case because the ‘Misjoinder Ruling’ was granted as a result of a mistake common to the parties to the proceedings. This submission is however misplaced because from the reading of the rescission ruling, it is apparent that Commissioner Paulsen relied on the provisions of section 144(a) of the LRA in deciding to rescind his initial ruling.

[37] Even if there is any merit in the contention that the initial ‘Misjoinder ruling’ was issued as a result of a common mistake, in Tshivhase Royal Council & another v Tshivhase & another[11], it was held that a “mistake common to the parties” bears the same meaning as is accorded to the concept of common mistake in the law of contract. This occurs where both parties are of one mind and share the same mistake. Thus, were both parties had assumed a state of affairs that turned out to be wrong, the court was entitled to set aside an order made on the basis of their common mistake. This was clearly not the case in this matter, as there was no evidence to suggest that there was a shared common mistake between the parties. The provisions of section 144 (1)(c) of the LRA therefore found no application in this case.

[38] All that happened in this case is that in the face of a misjoinder application before Commissioner Paulsen, the Employees had not done their homework in establishing the true nature of Bidvest’s business and its relationship with Clover. The failure to properly prepare for a matter cannot amount to a justus error, nor can the results of subsequent investigations into the merits of a claim, form a basis for a rescission of a final ruling.

[39] A further consideration which makes the rescission ruling susceptible to a review is that there was clearly undisputed evidence placed before the Commissioner that the Employees were subsequent to the ‘Misjoinder Ruling’ of 6 March 2017, permanently employed by Bidvest. Despite not having accepted the contracts of employment, the Employees continue to render their services at Clover whilst employed by Bidvest.

[40] At the core of the Employees’ case is the desire to be employed by Clover despite being permanently employed by Bidvest. As was the case in Masoga and Another v Pick n Pay Retailers (Pty) Ltd and Others[12], once it was not disputed that the Employees were offered permanent employment, that resolved the dispute between the parties, and it should thus have been the end of the matter. This was particularly so since the Letter of Good Standing discovered by the Employees did not take the matter any further in demonstrating that Bidvest was a labour broker, as the Commissioner had not found fraud on the part of Bidvest in that regard for the purposes of a rescission. To this end, there was no dispute between the parties, and the application for rescission was merely an academic exercise.

[41] In the light of the above conclusions, it follows that the rescission ruling of Commissioner Paulsen ought to be reviewed and set aside on account of the Commissioner having exceeded his powers, having committed an irregularity and material error of law, particularly since there was no basis within the realm of section 144 of the LRA to grant the rescission of the Misjoinder ruling as sought by the Employees. In the end, the Commissioner lacked the authority or jurisdiction to rescind the Misjoinder ruling, and thus the rescission ruling is to be set aside. Equally so, it follows that the subsequent arbitration award of Commissioner Nyondo was a nullity, and ought therefore to be set aside without the need to consider the merits of its review.

[42] Further in the light of the conclusions reached, and the voluminous material before the Court, no purpose would be served by remitting the matter back to the CCMA, and I am of the firm view that the Court is in a position to substitute Commissioner Paulsen’s rescission ruling.

[43] I have also had regard to the requirements of law and fairness insofar as an award of costs was sought. Inasmuch as it is my view that this dispute ought not to have gone beyond 13 March 2017 when the Employees were offered permanent employment, the facts and circumstances of this case dictate that no costs order ought to be made.

[44] Accordingly, the following order is made;

Order:

1. The review application deemed to have been archived in terms of the provisions of Clause 11.2.7 of the Practice Manual of this Court is reinstated.

2. The late filing of the application to review the rescission ruling issued by the third respondent is condoned.

3. The rescission ruling issued by the third respondent dated 24 May 2017 is reviewed, set aside and substituted with an order that;

‘The application to rescind the Misjoinder Ruling issued on 6 March 2017 is dismissed.’

4. The arbitration award issued by the second respondent dated 4 December 2017 is set aside.

5. There is no order as to costs

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the First & Second Applicants: Adv. L Hollander, instructed by Johanette Rheeder Incorporated. (Heads of argument by GA Fourie SC)

For the Fourth – Further Respondents: Adv. J Grogan, instructed by Gray Moodliar INC

[1] Act 66 of 1995 (as amended)

[2] Clause 11.2.7 provides; ‘A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure

that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application

(excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing.

Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive’

[2] Clause 11.2.7 provides;

‘A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure

that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application

(excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing.

Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive’

[3] See First National Bank of Southern Africa Ltd v Van Rooyen N.O. & Others; In re First National Bank of Southern Africa Ltd v Jurgens & Others 1994 (1) SA 677 (T) at 681E

[4] Section 144. Variation and rescission of arbitration awards and rulings. 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; or (c) granted as a result of a mistake common to the parties to the proceedings. (d) Made in the absence of any party, on good cause shown.

[4] Section 144. Variation and rescission of arbitration awards and rulings.

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; or

(c) granted as a result of a mistake common to the parties to the proceedings.

(d) Made in the absence of any party, on good cause shown.

[5] Morudi and Others v NC Housing Services and Development Co Limited and Others 2019 (2) BCLR 261 (CC) at para 27

[6] (1999) 20 ILJ 610 (LC) at 615 A - D

[7] See Rossiter & Others v Nedbank Ltd (96/2014) ZASCA 196 (1 December 2015) at para 16; Nyingwa v Moolman NO 1993 (2) SA 508 (Tk) at 510D – G; Naidoo v Matlala NO 2012 (1) SA 143 (GNP) at 153C.)

[8] In reference to ‘Dr. Brian van Zyl’ , “CCMA RULES”’

[9] Sidumo and Another v Rustenburg Platinum Mine Limited and Others [2007] 12 BLLR 1097 CC

[10] 1978 (1) SA 928 (A) At 939

[11] [1992] ZASCA 185; 1992 (4) SA 852 (A) at 863A

[12] [2019] 12 BLLR 1311 (LAC); (2019) 40 ILJ 2707 (LAC) at para 44