Solidarity obo Smook v Dept of Transport Roads and Public Works (JA68/15) [2016] ZALAC 42 [2016] 12 BLLR 1201 ; (2016) ILJ 2626 (LAC) (15 June 2016) per Murphy AJA [Tlaletsi AJP and Ndlovu JA concurring]

The LAC disallowed the appeal by refusing to reinstate a lapsed appeal.  An arbitrator had made two awards on the same day and both were issued to the parties in unexplained circumstances.  The first unsigned award only compensated the employee whereas the second signed award reinstated him.

It was decided that despite not being signed the first unsigned award was final and applied and the arbiter was functus officio thereafter.  So the second award was a nullity and invalid.

LCA summary

Reinstatement of the appeal – court considering only prospects of success of the appeal – two awards issued by the arbitrator – court finding that arbitrator functus officio when issuing the first unsigned award, which was final as, served on both parties – requirement of signing award is directory and not peremptory.  Labour Court correctly finding that employee entitled to relief in terms of the first unsigned award – no prospects of success – reinstatement of the appeal dismissed.

Excerpts without footnotes

[13]     Before dealing with the grounds of appeal, it will be useful to say something about the doctrine of functus officio.  The rationale of the doctrine is founded on the principle of the rule of law which holds that individuals should be entitled to rely on governmental decisions, and to be able to plan their lives around such decisions, insulated from the injustice that would result from a sudden change of mind on the part of the functionary.

An official who has discharged his official function by making a decision is unable to change his mind and revoke, withdraw or revisit the decision, unless it is vitiated on acceptable grounds such as fraud or want of jurisdiction.  The doctrine applies only to final decisions.  And “finality is a point arrived at when the decision is published, announced or otherwise conveyed to those affected by it”.  In order for the decision to be regarded as final, it must have been passed into the public domain in some manner.

. . . . .

[15]     It is trite that as a general rule, statutory requirements must be observed.  But it is not always the case that non-compliance will automatically result in invalidity.  The principles governing non-compliance with statutory requirements are well-established.

The crucial enquiry is whether the legislature contemplated that the relevant failure should be visited with nullity.  No universal rule can be laid down as to whether enactments shall be considered directory only or mandatory, with an implied nullification for disobedience. 

The courts must ascertain the real intention of the legislature by studying the context and scope of the statute to be construed.  Various factors must be considered, such as: the subject-matter of the prohibition, its purpose in the context of the legislation, the remedies provided in the event of breach, the nature of the mischief which it was designed to remedy or avoid, and any cognizable impropriety or inconvenience which may flow from invalidity.  Then the court must ask whether it was truly intended that anything done contrary to the provisions in question was necessarily to be visited with nullity.  An important consideration is whether a declaration of invalidity would have capricious, disproportionate or inequitable consequences.

. . . . .

[17]     To hold an award, which is valid in all other respects, to be invalid and a nullity on grounds of non-signature favours form above substance and would defeat the LRA’s aim of effective dispute resolution.  The purpose of the signature requirement is primarily to identify the arbitrator and secondarily to signify the completion of the award by him or her. 

The latter objective is achieved also by the issue of the award.  Once an award, indisputably authored by the relevant arbitrator, is conveyed to the affected parties and has passed into the public domain, that act signifies completion and supersedes the necessity for signature.

The seemingly contrary decision of the Labour Court in Meyer v CCMA and Another[2002] 2 BLLR 186 (LC) at paras 6 and 7 to the effect that an unsigned award would normally be a nullity was qualified by the judge in that case by his explicit recognition that such would not be the case if “there is proof that it is in the form decided by the arbitrator”.

[18]     Consequently, the unsigned first award issued by the arbitrator in this case was a final award made final by its service upon the parties with the result that the arbitrator became functus officio when it was issued.  Hence the Labour Court was correct to hold that the appellant was only entitled to the relief contained in that award and accordingly the application for condonation and the appeal must fail.  There is no reason why costs should not follow the result.