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

Shoprite Checkers dismissed the fourth respondent (Ms Makhubela) in August 1998 for alleged dishonest use of her staff discount card. After an internal appeal upheld the dismissal, the union (SACCAWU) referred the dispute to the CCMA. Conciliation failed and arbitration was set down for 24 March 1999. Neither the employee nor the union appeared, and the arbitrator dismissed the claim. The union first applied for rescission under s 144 of the LRA on 30 September 1999 but failed to file a complete set of papers; the applicant’s attorneys repeatedly requested the missing affidavit and documents between November 1999 and January 2000 without response. In June 2001—27 months after the award and roughly 25 months after the union became aware of it—the union and employee filed a second rescission application supported by the employee’s affidavit. The applicant opposed, raising, inter alia, the inordinate delay, the union’s failure to prosecute the earlier application, and the lack of provision for condonation under the then-applicable CCMA rules. After pleadings closed in October 2001, the CCMA took 13 months to issue a ruling. On 29 November 2002 Commissioner Maseko granted rescission in a terse ruling that found the employee was not in wilful default and had good prospects of success, but made no reference to the delay or to the applicant’s detailed submissions. Shoprite Checkers then launched this review proceedings under s 158(1)(g) of the LRA.

• Whether a commissioner exercising powers under s 144 of the LRA must consider whether the rescission application was brought within a reasonable time, despite the absence of an express statutory time limit.
• Whether the commissioner's failure to address the inordinate delay (and other relevant submissions) constituted a failure to apply his mind properly, rendering the decision reviewable on administrative-law grounds.
• Whether the CCMA commissioner had jurisdiction to grant rescission without first condoning the late filing under the applicable CCMA rules.
• Whether the employee was in wilful default and whether she could escape the consequences of her trade union representative's lack of diligence.

The ruling of the Second Respondent dated 29 November 2002 was reviewed and set aside. The application of the Third and Fourth Respondents for rescission of the arbitration award of 24 March 1999 under s 144 of the Labour Relations Act 66 of 1995 was refused. No order as to costs was made.

1. A commissioner’s power to rescind an arbitration award under s 144 of the LRA is a discretionary function reviewable under s 158(1)(g) on the ordinary grounds of judicial review, including rationality and failure to apply mind. 2. Although s 144 does not prescribe an express time limit, a rescission application must be brought expeditiously and within a reasonable time in the interests of legal certainty and finality, consistent with the common-law approach to Rule 42(1) of the Uniform Rules. 3. A commissioner’s failure to have regard to a highly relevant consideration—such as an inordinate delay of almost two years in bringing the rescission application—constitutes a failure to apply his or her mind properly, which renders the decision reviewable and liable to be set aside. 4. A litigant cannot escape the consequences of inordinate delay caused by a representative’s incompetence where the litigant knew or ought to have known of the award and failed to act timeously.

1. The court observed that, had the union responded to the applicant’s attorneys in late 1999 and filed a complete set of papers, the defect in the original rescission application would in all likelihood have been cured and rescission may well have been granted on a proper basis. 2. The court expressed the tentative view that, had the amended CCMA rules (with their condonation requirements) applied to the commissioner’s November 2002 ruling, the commissioner may have lacked jurisdiction to grant rescission without first condoning the late filing; however, the court expressly declined to decide this issue. 3. The court commented that the employee had been ‘less than well served’ by her union and that the union’s conduct in processing the rescission application was ‘deplorable’, but noted that good order in civil proceedings does not permit a litigant to hide behind the incompetence of a representative.

The judgment confirms that CCMA commissioners’ rescission decisions are subject to judicial review on ordinary administrative-law grounds (including rationality and proper application of mind). It establishes that, despite the lack of an express time limit in s 144 of the LRA, rescission applications must be brought within a reasonable time and expeditiously to promote finality in labour disputes. The case also reinforces that litigants in the CCMA cannot indefinitely shelter behind the negligence of their representatives or trade unions, and that a failure by a commissioner to consider inordinate delay may alone be fatal to a rescission ruling.