Shoprite Checkers (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration and Others

The fourth respondent (employee) was employed by Shoprite Checkers at its OK Silverton store. In August 1998, she was dismissed following a disciplinary hearing for allegedly using her staff card dishonestly to purchase goods at a discounted price for a person who was not a close family member. An internal appeal on 14 September 1998 upheld the dismissal. On 15 September 1999, the employee referred the dismissal to the CCMA for conciliation, which failed. An arbitration hearing was scheduled for 24 March 1999, but when the employee and her union (SACCAWU) failed to appear, the arbitrator dismissed the claim. The union and employee became aware of this dismissal order in July 1999 but only filed a first rescission application on 30 September 1999 (6 months after the award). This application was defective as the applicant was not served with complete papers despite multiple requests. A second rescission application was filed on 6 June 2001 (27 months after the award). The applicant opposed this application, arguing it was late, prospects of success were weak, and the delay was inexcusable. On 29 November 2002, without an oral hearing, the CCMA Commissioner granted the rescission. Shoprite Checkers sought review of this decision.

• Whether the CCMA Commissioner properly exercised his discretion in granting rescission of the arbitration award under section 144 of the LRA
• Whether the Commissioner was obliged to consider the reasonableness of the delay in bringing the rescission application
• Whether the Commissioner properly applied his mind to the material and submissions before him
• Whether the rescission application was brought within a reasonable time
• Whether the Commissioner had jurisdiction to entertain the rescission application in the absence of a proper condonation application
• Whether the grounds for judicial review of administrative action were satisfied

The ruling of the Second Respondent (Commissioner) dated 29 November 2002 under case no. GA 45769 was reviewed and set aside. The application of the third and fourth respondents for rescission of the arbitration award of 24 March 1999 in terms of section 144 of the Labour Relations Act of 1995 was refused. There was no order as to costs.

Although section 144 of the LRA does not impose an express time limit for rescission applications, it is incumbent on a commissioner exercising the discretion bestowed by the section to have regard to the common law requirement that applications for rescission should be brought expeditiously within a reasonable time in the interests of legal certainty and finality in judicial pronouncements. A commissioner's failure to consider whether a rescission application has been brought within a reasonable time constitutes a failure to apply his mind properly to a highly relevant consideration, rendering the decision reviewable. Rescission applications are procedural steps designed to correct expeditiously an obviously wrong judgment or order, and what constitutes a reasonable time depends on the facts of each case.

The court made observations about the potential jurisdictional issue arising from the commissioner's failure to deal with a condonation application under the CCMA rules. The court noted that had the commissioner been obliged to entertain a condonation application complying with rule 31 requirements, his failure to do so may have resulted in absence of jurisdiction. However, the court did not decide this point as neither party addressed the scope and application of the rules. The court also commented on the deplorable conduct of the union in processing the employee's application, noting that had the union responded to correspondence in December 1999, the defect in the original application would likely have been corrected and rescission may have been granted on a proper basis. The court expressed sympathy for the employee being poorly served by her union but emphasized that good order in civil proceedings does not permit a litigant to hide behind the incompetence of a trade union representative, citing the principle from Mziya v Putco Ltd that there is a limit beyond which a litigant cannot escape the results of a representative's lack of diligence.

This case is significant in South African labour law for establishing important principles regarding rescission applications before the CCMA. It clarifies that although section 144 of the LRA contains no express time limit for rescission applications, commissioners exercising discretion under this section must have regard to the common law requirement that such applications be brought expeditiously within a reasonable time. The judgment emphasizes the importance of legal certainty and finality in judicial pronouncements. It also reinforces standards of rationality and proper application of mind required of CCMA commissioners when exercising administrative functions, confirming that CCMA decisions are subject to judicial review on administrative law grounds. The case demonstrates that litigants cannot indefinitely escape the consequences of their representatives' lack of diligence, balancing access to justice against procedural regularity and finality.