[22] In so far as the second argument is concerned - which was upheld by the court in Lungameni - it is similarly obvious - that it cannot be said that the inference - to be drawn from the omission, to grant similar powers of condonation, legislature’s as provided for in cases of labour appeals, and as contained in section 89(3) and – which was to the effect that it had to be concluded that the court was not vested with the power to condone the non-compliance with section 89(4) - was palpably wrong, particularly as such reasoning would be in line with the case law cited in paragraph 7 of that judgment. [23] What is then to be made of the further arguments raised by counsel? [24] It is firstly clear that section 89(4) uses the word party to a dispute ‘may’: ‘a who alleges a defect in any arbitration apply to the Labour Court proceedings ‘may’ for an order reviewing and setting aside the (emphasis added) award’. [25] The language employed seems indeed to be directory only, also if one considers the absence of any sanctions or penalty in the Labour Act for not complying with that section. [26] By way of contrast it is also interesting to note that the same terminology is not utilised in section 89(2), which states that a party to a dispute, who wishes to appeal an award, note an appeal within 30 days after the award is arbitrator’s ‘must’ served. [27] While both the noting of an appeal and the launching of a review against an award are optional, the terminology utilised seems to indicate that arbitrator’s parliament intended to a party wishes to appeal it must do so within 30 days state ‘if and if such party fails to do so the Labour Court may condone such late noting on shown. If a party, on the other hand, opts to review an ‘good cause’ arbitrator’s decision, such party may do so, provided that such review is brought within the time limits set by section 89(4) i.e. within 30 days or within 6 weeks, after the discovery in a case of involving corruption, in which case no avenue for the condonation for the out of time bringing of an application for review is provided for or I will offered’. return to this aspect below.
[22] In so far as the second argument is concerned - which was upheld by the court in Lungameni - it is similarly obvious - that it cannot be said that the inference - to be drawn from the legislature’s omission, to grant similar powers of condonation, as provided for in cases of labour appeals, and as contained in section 89(3) – and which was to the effect that it had to be concluded that the court was not vested with the power to condone the non-compliance with section 89(4) - was palpably wrong, particularly as such reasoning would be in line with the case law cited in paragraph 7 of that judgment. [23] What is then to be made of the further arguments raised by counsel? [24] It is firstly clear that section 89(4) uses the word ‘may’: ‘a party to a dispute who alleges a defect in any arbitration proceedings ‘may’ apply to the Labour Court for an order reviewing and setting aside the award’. (emphasis added) [25] The language employed seems indeed to be directory only, also if one considers the absence of any sanctions or penalty in the Labour Act for not complying with that section. [26] By way of contrast it is also interesting to note that the same terminology is not utilised in section 89(2), which states that a party to a dispute, who wishes to appeal an arbitrator’s award, ‘must’ note an appeal within 30 days after the award is served. [27] While both the noting of an appeal and the launching of a review against an arbitrator’s award are optional, the terminology utilised seems to indicate that parliament intended to state ‘if a party wishes to appeal it must do so within 30 days and if such party fails to do so the Labour Court may condone such late noting on ‘good cause’ shown. If a party, on the other hand, opts to review an arbitrator’s decision, such party may do so, provided that such review is brought within the time limits set by section 89(4) i.e. within 30 days or within 6 weeks, after the discovery in a case of involving corruption, in which case no avenue for the condonation for the out of time bringing of an application for review is provided for or offered’. I will return to this aspect below.
Puma%20Chemicals%20v%20Labour%20Commissioner%20(LC%2090-2012)%20[2014]%20NALCMD%2009%20(10%20February%202014).docx