Late Rescission Applications - Functus Officio rule. A commissioner may only hear a late rescission application if it is accompanied or preceded by a condonation application and if the late application is condoned. In the absence of a condonation application the appropriate order is to struck the matter from the roll. PT Operational Service (Pty) Ltd v Retail and Allied Workers Union obo Ngweletsana (2013) 34 ILJ 1138 (LAC); [2013] 3 BLLR 225 (LAC) Appeal in terms of section 166 of the South African LRA: Commission for Conciliation, Mediation and Arbitration – Exercise of powers – When functus officio – Commissioner declining to rescind default award on basis that it was filed late, with no application for condonation, but later granting condonation and rescinding default award. Second decision not void on basis of functus officio rule as first decision did not deal with merits of rescission application. Commission for Conciliation, Mediation and Arbitration – Rescission – Commissioner declining to rescind default award on basis that it was filed late, with no application for condonation, but later granting condonation and rescinding default award – Second decision not void on basis of functus officio rule as first decision did not deal with merits of rescission application. Maxims – Functus officio – Functus officio doctrine applying only when administrative organ has exercised all statutory powers in particular matter – Commissioner’s decision to dismiss rescission application because applicant had not applied for condonation not precluding him from later granting condonation and rescinding default award.

1. PT OPERATIONAL SERVICES (PTY) Ltd v. RETAIL and
ALLIED WORKERS UNION obo NGWELETSANA (2013)
34 ILJ 1138 (LAC); [2013] BLLR 255 (LAC)
“A CLASSICAL CONCERTO IN THREE MOVEMENTS”
ALLEGRO – THE FIRST MOVEMENT (Fast)
ANDANTE – THE SECOND MOVEMENT (Slow)
SCHERZO – THE THIRD MOVEMENT (Very Fast)
FIN (The End)

2. Employee (EL) dismissed – intoxication & assault – dispute referral CCMA
ALLEGRO – THE FIRST MOVEMENT
BACKGROUND AND MATERIAL FACTS
Arbitration - Employer (ER) absent – default award by Commissioner D
ER notified default award - application rescission – served application on
the 14th day – Rule 32
CCMA notified ER condonation required – ER’s approach “Flocci non
facio” [“I don’t give a damn”] - no condonation filed – Rule 9
Rescission hearing set down – Commissioner C dismissed application –
“defective process” – 1st
ruling

3. ER application – “matter to be reinstated” and “application for condonation”
ALLEGRO – THE FIRST MOVEMENT
BACKGROUND AND MATERIAL FACTS (Cont.)
EL’s TU objects - Commissioner C makes 2nd
ruling – condonation granted
+ rescission of default award [made 3 years ago]
“Plot thickens” – Commissioner C makes 3rd ruling rescinding the 1st
ruling
“defective process” ruling – “it was obvious error” – section 144(b) LRA? –
“intended to grant ER opportunity apply for condonation”
Commissioner C “kicks for touch” – “cunning move” concludes –
Commissioner M should consider condonation application + rescission
application
Commissioner M - “without fear or hesitation” grants condonation + rescind
default award by Commissioner D

4. TU LODGED REVIEW APPLICATION – SET ASIDE 2ND RULING(S) BY
COMMISSIONER C + RULING BY COMMISSIONER M – SECTION 158
LRA
ANDANTE – THE SECOND MOVEMENT
THE REVIEW APPLICATION – LABOUR COURT JUDGMENT:
LC ADDRESSED THREE LEGAL QUESTIONS:
- Does doctrine of functus officio apply to rulings of CCMA?
- If functus officio applies, does LRA allow Commissioners to set aside
own decisions?
- Did the CCMA in issuing the 2nd ruling [the condonation ruling and
rescission ruling granted by Commissioner C – issued 3 years after default
award] exercise a judicial or administrative function?

5. ANDANTE – THE SECOND MOVEMENT
THE REVIEW APPLICATION – LABOUR COURT JUDGMENT:
- 3rd QUESTION – CCMA PERFORMS ADMINISTRATIVE FUNCTION
- 1ST QUESTION - COMMISSIONER C BECAME FUNCTUS OFFICIO
AFTER 1ST”DISMISSAL” RULING - ALL SUBSEQUENT RULINGS – SET
ASIDE.
- 2ND QUESTION – LRA DOES NOT ALLOW CCMA “TO REVISIT”
DESCISIONS OR RULINGS – CONTRARY TO SECTION 158(g) OF LRA
– SECTION 144 OF LRA MAKES PROVISION FOR RESCISSIONS OF
ARBITRATION AWARDS AND RULINGS – WITHIN CONFINES OF
SECTION 144(a) – (c)

6. PT OPERATIONAL SERVICES AT [11], “Functus officio means that once
an official had discharged its official function it would be unable to revoke
withdraw or revisit that decision”.
ANDANTE – THE SECOND MOVEMENT
WHAT DOES FUNCTUS OFFICIO MEAN?
Baxter L, “Administrative Law” (1989) Juta 372, “When an administrative
official has made a decision which bears directly upon an individual’s
intererest, it is said that the decision – maker has discharged his office or
is functus officio”.
In President of the Republic of South Africa 2000 (1) SA 1 (CC); also
reported at 1999 (10) BCLR 1059 (CC) – Ed, the Constitutional Court held
that in general the doctrine applies only to final decisions.
The Court held further that the functus officio doctrine was in tandem with
the principle of legality, which should apply to all administrative decisions.

7. ER ON APPEAL CONTENDED 1ST RULING BY COMMISSIONER C
BASED ON PROCEDURAL POINT – ABSENCE OF CONDONATION
APPLICATION
SCHERZO – THE THIRD MOVEMENT
THE EMPLOYER’S APPEAL TO THE LAC:
COMMISSIONER C DID NOT DEAL WITH MERITS OF RESCISSION IN
1ST RULING – COMMISSIONER C ENTITLED TO REVISIT THE
MATTER
THE JUDGMENT BY THE LAC:
- HELD FUNCTUS OFFICIO DOCTRINE APPLIES
- SECTION 144 ENTITLED COMMISSIONERS TO VARY DECISIONS IF
JURISDICTIONAL FACTS ARE PRESENT – 144(a) [erroneously
sought…made in absence]; (b) [ambiguity…obvious error…omission] & (c)
[mistake common to parties]

8. - FUNCTUS OFFICIO RULE INTENDED TO APPLY ONCE
COMMISSIONER HAS TAKEN A FINAL DECISION ON PARTICULAR
MATTER
SCHERZO – THE THIRD MOVEMENT
THE JUDGMENT BY THE LAC (Cont.):
- IF AN “ALLIED FUNCTION” HAVE BEEN PERFORMED – BUT
COMMISSIONER HAS NOT YET “EXERCISED THE MAIN POWER
BESTOWED BY LRA”… THEN “IT CANNOT BE SAID THAT ITS
STATUTORY POWERS ARE SPENT”
- CENTRAL ISSUE IS WHETHER MATTER HAS BEEN DIMISSED ON
THE MERITS!!!
- COMMISSIONER C SHOULD HAVE “STRUCK MATTER FROM THE
ROLL” …”RATHER THAN DIMISSED IT”

9. LAC CONCLUDED – “COMMISSIONER C… IN THE ABSENCE OF A
CONDONATION APPLICATION…COULD NOT CONSIDER THE
RESCISSION APPLICATION”
SCHERZO – THE THIRD MOVEMENT
THE JUDGMENT BY THE LAC (Cont.):
“COMMISSIONER C IN EFFECT FOUND THAT HE DID NOT HAVE
JURISDICTION TO HEAR RESCISSION WITHOUT AN
ACCOMPANYING CONDONATION APPLICATION”
THEREFORE, THE SUBSEQUENT RULING COULD NOT BE
IMPUGNED ON BASIS OF DOCTRINE OF FUNCTUS OFFICIO +
DEFAULT AWARD COULD BE MADE ORDER OF COURT – IT CEASED
TO EXIST!!!

11. FINE – THE END