A critical analysis of “absolution from the

instance” in South African labour law

with specific reference to the CCMA∗
D Smit
BIur LLB LLM LLD
Senior Lecturer, Mercantile Law, University of the Free State
S Madikizela
Secondary Teacher’s Diploma, BA, Bachelor of Education, Diploma Human
Resource Management, LLB, Post Graduate Diploma Labour Law, LLM

OPSOMMING
’n Kritiese ontleding van “absolusie van die instansie” in die Suid-Afrikaanse
arbeidsreg met spesifieke verwysing na die KVBA
Die vestiging van die Kommissie vir Versoening, Bemiddeling en Arbitrasie (KVBA) in
1996 is bekend as een van die innoverendste voorbeelde van institusionele ontwerp in die
heropbou van Suid-Afrika ná apartheid op die gebied van geskilbeslegting. Tog blyk van
die ideale met die skepping van die KVBA verydel te wees: In teenstelling met die ver-
wagte geleidelike afname in die getal geskille wat na die kommissie verwys word, beleef
die KVBA ’n jaarlikse toename in sy werklas. Gedurende die eerste ses jaar het die getal
sake wat die KVBA bereik feitlik verdubbel, met ’n verdere toename van 25% oor die
afgelope vyf jaar. Met die hoop om verdere debat te stimuleer, doen hierdie studie aan die
hand dat absolusie van die instansie as waardevolle hulpmiddel kan dien om die KVBA sy
werklas te help verlig en tyd én geld vir sowel die kommissie as partye in ’n geskil te
spaar. Ná ’n omskrywing van absolusie van die instansie soos dit tans in howe toegepas
word, oorweeg die artikel die toepassing daarvan in die KVBA. Weens die sterk ooreen-
komste tussen die prosedures van die KVBA en landdroshowe en die hof vir klein eise,
die toepassing van soortgelyke bewysreëls en die voortgesette toename in die KVBA se
werklas, kom die skrywers tot die gevolgtrekking dat daar geen ooglopende, geldige rede
bestaan waarom die kommissarisse van die KVBA nie ook oor die diskresionêre bevoegd-
heid behoort te beskik om absolusie van die instansie toe te pas, buiten dat Suid-
Afrikaanse arbeidswetgewing nie tans daarvoor voorsiening maak nie. Derhalwe word
aanbeveel dat die wetgewer in hierdie geval geregtigheid bo die wet stel en sekere wets-
wysigings aanbring om die KVBA in staat te stel om deur middel van absolusie van die
instansie onverdienstelike sake uit die weg te ruim en die karige hulpbronne tot sy beskik-
king eerder vir verdienstelike sake te benut.

1 INTRODUCTION
The establishment of the Commission for Conciliation, Mediation and Arbitra-
tion (CCMA) in 1996 1 is recognised as one of the most innovative examples of
________________________

∗ The article is largely based on Madikizela A critical analysis of “absolution from the
instance” in South African labour law, with specific reference to the CCMA (LLM
dissertation UFS 2014). The article reflects the legal position as at 1 September 2015.
1 Grogan Workplace law (2014) 382–383.

85
86 2016 (79) THRHR

institutional design in the post-apartheid reconstruction of South Africa as well

as internationally in the area of dispute resolution. 2 This commission has pro-
vided an unprecedented level of social justice for employees.
The establishment of the CCMA raised a number of expectations. Firstly, it
was envisaged that disputes would be resolved more efficiently, that the national
settlement rate would increase and that the number of disputes would be reduced.
The ambition of its creators was to establish an institution that could provide
accessible, cheap, quick and non-technical dispute resolution in the most com-
mon categories of labour disputes. 3 Secondly, by providing comprehensive
guidelines and training, it was hoped that both employees and employers would
learn the correct procedures and codes of conduct, which should ultimately result
in a lighter case-load for the CCMA. Unfortunately, these expectations have not
been met as the number of cases referred to the CCMA has increased substan-
tially since its establishment. 4
During the first six years of its existence, the number of cases referred to the
CCMA rose each year, virtually doubling during this period. Referrals increased
from 67 319 in 1997/8 to 127 715 in 2003. 5 After a slight stabilisation in 2004/5
to 2006/7, case referrals to the CCMA increased by some 8% in 2007/8 (132 868
cases), probably due to the economic downturn that commenced early in 2008,
which led to significantly higher levels of retrenchments. 6 Kahn remarked that
the case workload in 2012 had “escalated and reached an all-time high with
160 000 cases coming under spotlight. This figure translates to over 13 000 cases
per month or 3 333 cases per week or a total of 667 cases each working day”. 7
These figures are in stark contrast to the initial assumption upon the establish-
ment of the CCMA that some 40 000 cases would be referred to it each year. 8
According to Benjamin, 9 the CCMA has experienced a 25% rise in case-load
over the past five years. The CCMA is currently dealing with over 100 000 cases
________________________

2 Idem 382. The CCMA plays a central role in the statutory dispute resolution process. All
disputes not dealt with through private procedures or accredited bargaining councils or
agencies must be referred to the CCMA for conciliation before they can be referred for
arbitration or adjudication.
3 Benjamin Assessing South Africa’s Commission for Conciliation, Mediation and Arbitra-
tion (2013). The paper is undertaken on behalf of the ILO and forms part of a series of
national studies that examine how certain high-performing dispute resolution institutions
have responded to the changing nature of workplace disputes, with a view to informing
future developments in dispute resolution policy. In his paper Professor Paul Benjamin
examines the evolution of South Africa’s Commission for Conciliation, Mediation and
Arbitration (CCMA) with particular emphasis on challenges the CCMA faces since its
establishment in 1995.
4 Benjamin and Gruen “The regulatory efficiency of the CCMA: A statistical analysis of
the CCMA’s CMS database” (2006) 8 available at http://bit.ly/1LHnt3A (accessed on
21 April 2015); Ramutloa “2013 CCMA experiences huge case load” available at
http://bit.ly/1WMNpg0 and http://bit.ly/1WMNpg0 (accessed on 21 April 2015); and see
Bhorat et al “Understanding the efficiency and effectiveness of the dispute resolution
system in South Africa: An analysis of the CCMA Data” available at http://bit.ly/1LpgSJ6;
(accessed on 8 October 2015).
5 Benjamin and Gruen (fn 4 above) 8; Ramutloa fn 4 above.
6 Benjamin and Gruen (fn 4 above) 13.
7 Ramutloa fn 4 above.
8 Benjamin fn 3 above.
9 Idem 9–13.
ABSOLUTION FROM THE INSTANCE AND THE CCMA 87

every year, the majority of which are related to allegations of unfairness brought
by employees against employers. 10
The CCMA is in need of a time-efficient and cost-effective manner of dealing
with its increasing case-load. It is submitted that the application of absolution
from the instance in the CCMA might provide an effective mechanism for
alleviating the CCMA’s ever-increasing workload. The purpose of this article
is therefore to evaluate the possibility of implementing absolution from the
instance matters before the CCMA in a manner similar to that employed in South
African courts, more specifically, the civil courts, including the Small Claims
Court.

2 ABSOLUTION FROM THE INSTANCE: AN OVERVIEW

“Absolution” as defined is an act of freeing from blame and releasing from
consequences, obligations or penalties. 11 “Instance” refers to “a particular case”. 12
It then follows that absolution from the instance is a state of being released from
a particular case. In South African law, the decree of absolution from the
instance amounts to an order granted to dismiss the plaintiff’s claim on the basis
that no order can be made. 13
This article does not aim to address the historical origins or development of
absolution from the instance, but aims to discuss its current application across a
spectrum of forums, namely, South African civil courts, particularly the Small
Claims Court, criminal courts and the Labour and Labour Appeal Court. 14 The
purpose is to lay the foundation for stimulating debate on the possibility of using
absolution of the instance as a mechanism in the CCMA.
2 1 Civil courts
A finding of absolution from the instance in a civil matter may be made either
after the plaintiff has failed to prove his or her claim or after the defendant has
put his or her case in defence. In both cases, it would mean that the evidence was
insufficient for the court to make a finding for the defendant. 15 The defendant
would be absolved from the instance if, upon a holistic evaluation of the
evidence at the end of the proceedings, the plaintiff’s burden of proof has not
been discharged. 16 If, however, at the close of the plaintiff’s case already, there
is

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10 Israelstam “There is a significant number of referrals based on facts that are mis-
represented” in The South African labour guide 1 available at http://bit.ly/1MdTmQa
(accessed on 2 September 2015).
11 Collins English dictionary (2009) 17.
12 Oxford dictionary (2002) 256.
13 Where the burden of proof rests on the defendant, who then fails to discharge it, the proper
order is not absolution from the instance but judgment for the plaintiff.
14 Undoubtedly, further research on absolution from the instance as a legal mechanism for
justice will be invaluable to the contention raised in this article, but does not fall within the
scope of this article.
15 Schwikkard and Van der Merwe Principles of evidence (2002) 542. See s 48(c) of Act 32
of 1944. See also s 34(c) of Act 61 of 1984.
16 This means that the plaintiff has not proven his claim against the defendant. However, it
does in no way bar the plaintiff from reinstating the action, provided that the claim has not
continued on next page
88 2016 (79) THRHR

no evidence to support the plaintiff’s claim, or there is insufficient evidence upon

which a court, acting reasonably, might find for the plaintiff, the court is also
entitled to absolve the defendant from the instance. 17
The test for determining whether absolution from the instance should be
granted at the close of the plaintiff’s case was set out in Claude Neon Lights v
Daniel. 18 In Gordon Lloyd Page & Associates v Revira, 19 it was held that the test
requires the court to establish whether there is evidence relating to all the
elements of the claim. In its evaluation towards this end, it is not necessarily
correct for the court to require “evidence upon which a reasonable man might
find for the plaintiff”; the court ought to be concerned with its own judgment and
not that of a “reasonable” person or court. 20 In Supreme Service Station Pty Ltd v
Fox and Goodridge Pty Ltd, 21 the court noted that there was nothing inconsistent
in a court refusing absolution at the close of the plaintiff’s case, but granting it
when the defendant then closes his or her case without leading any further
evidence. The purpose and effect of an order for absolution from the instance is
to realise justice for a respondent or defendant against whom no prima facie case
has been established by the plaintiff or applicant.
As far as application procedures are concerned, it seems that absolution from
the instance is not a competent order because both parties have, by way of
written and oral evidence, given the court all the information it requires to decide
the dispute before it on the basis of merits. 22 There can, therefore, be no sug-
gestion that any party, at the time of hearing oral arguments, had not been given
a fair opportunity to place before the court all the evidence it believed it needed

________________________

yet prescribed. In that respect, it is to be distinguished from a positive finding of no claim

against the defendant.
17 Schwikkard and Van der Merwe 543.
18 1974 4 SA 403 (A). The court held: “When absolution from the instance is sought at the
close of the plaintiff’s case, the test to be applied is not whether the evidence led by the
plaintiff establishes what would finally be required to be established, but whether there is
evidence upon which a court, applying its mind reasonably to such evidence, could or
might find for the plaintiff” (409G–H). The test for absolution from the instance where a
plaintiff sued two defendants in the alternative is applied somewhat differently. In
Mazibuko v Santam Co Limited 1982 3 SA 125 (A) 135D–E, Corbett JA held that, in these
circumstances, “if at the end of the plaintiff’s case there is evidence upon which a court,
applying its mind reasonably, could hold that it had been established that either one
defendant or the other defendant or both of them were legally liable (it being nevertheless
uncertain as to which of the alternatives was the correct one), the Court should not grant an
application for absolution at the suit of either defendant. In such a case, which is in effect a
tripartite suit between three adversaries, it is, in my opinion, in the interest of justice that
the case should be decided on the evidence which all the parties might choose to place
before the Court, provided, as I say, that the plaintiff, when presenting his case, has laid
necessary foundation for showing, prima facie, that one or the other or both of the
defendants are legally liable. To hold otherwise would, in many instances, defeat the object
of the Rule which permits a plaintiff who is uncertain as to the legal responsibility of two
defendants to sue them both in the alternative and, in the further alternative, jointly and
severally”.
19 2001 1 SA 88 (SCA).
20 92E–93A.
21 1971 4 SA 90 (RA) 93H.
22 Bouwer v City of Johannesburg and Another (JA64/06) [2008] ZALAC 15 (23 December
2008) para 22.
ABSOLUTION FROM THE INSTANCE AND THE CCMA 89

to put before the court to settle the dispute. 23 Accordingly, an order dismissing
an

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23 Para 24.
90 2016 (79) THRHR

application cannot be equated to an order of absolution from the instance, but is a

final judgment in favour of the respondent on the merits of the case. 24

2 1 1 Small Claims Court

The Small Claims Court Act 25 creates independent forums, known as Small
Claims Courts, which are given jurisdiction to adjudicate on minor civil matters
where the cause of action falls within a clear value determined by the Minister
from time to time by notice in the Government Gazette. 26 An action in the Small
Claims Court can be instituted against any person, natural or juristic, excluding
the State or branches of local government. 27 Matters adjudicated by Small
Claims Courts are presided over by commissioners who are appointed by the
Minister of Justice. 28
Amongst many of the procedural and evidentiary provisions that are similar
to those applicable in Magistrates’ Courts, the Small Claims Court Act makes
provision for an order for absolution from the instance if the court, after hearing
the action, is of the opinion that the evidence does not enable it to give judgment
for either party. 29 The Small Claims Court thus employs absolution from the
instance in a sui generis manner subject to the civil method for determining
whether absolution from the instance should be granted.
In the Small Claims Court, if the claimant and the defendant in a dispute are
present in court, the commissioner hears both sides of the saga before making a
judgment for absolution from the instance. 30 A judgment or order of a Small
Claims Court is final and cannot be appealed against: it is only subject to review
on certain grounds. 31 This resembles the current approach applicable in the
CCMA.

2 2 Labour Court and Labour Appeal Court

The Labour Court, as a court of record, is a superior court that has authority,
inherent powers and standing in relation to matters under its jurisdiction, equal to
that of a court of a provincial division of the High Court relation to the matters
under its jurisdiction. 32 The Labour Court is empowered to make any order it
deems appropriate, including an order for absolution from the instance 33 as
utilised by civil courts. 34
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24 Para 44.
25 Act 61 of 1984.
26 See s 15 of Act 61 of 1984. The current limit on the amount for a claim or value of the
object of the claim is R15000.00 per GG 37450 RG 10153 GN 185, 18 March 2014.
27 See Republic of South Africa, Department of Justice and Constitutional Development at
http://bit.ly/1WMOLHD (accessed on 26 September 2015).
28 See ss 8–9 of Act 61 of 1984.
29 See s 34(c) of Act 61 of 1984.
30 Personal Finance “How small claims court system works” available at http://bit.ly/1PibDg7
(accessed on 26 September 2015). See Baikepi v Kgalagadi Breweries 2005 2 BLLR 32
(HC) 37.
31 See ss 45 and 46 of Act 61 of 1984.
32 See s 151(2) of the LRA.
33 See s 158(1) of the LRA. This section does not explicitly nominate an order for absolution
from the instance as being an order that the Labour Court can grant. However, the Labour
Court has determined that s 158(1) gives the Labour Court the authority to grant an order
for absolution from the instance. See National Union of Metalworkers of South Africa obo
continued on next page
ABSOLUTION FROM THE INSTANCE AND THE CCMA 91

The Labour Appeal Court is the final court of appeal in respect of all judg-
ments and orders made by the Labour Court in respect of matters within its
exclusive jurisdiction. 35 A court of record, the Labour Appeal Court is a superior
court that has authority, inherent powers and standing in relation to matters under
its jurisdiction equal to that of the Supreme Court of Appeal in relation to
matters under its jurisdiction. 36 The Labour Appeal Court is empowered to (a) on
the hearing of an appeal to receive further evidence, either orally or by deposi-
tion before a person appointed by the Labour Appeal Court, or to remit the case
to the Labour Court for further hearing, with such instructions as regards the
taking of further evidence or otherwise as the Labour Appeal Court considers
necessary; and (b) to confirm, amend or set aside the judgment or order that is
the subject of the appeal and to give any judgment or make any order that the
circumstances may require. 37
2 3 Criminal courts
It is recognised that the CCMA and its procedures are far removed from criminal
law and criminal procedural law as encapsulated in the Criminal Procedure Act
(CPA). 38 However, it would be remiss, in the context of the purpose of this
article, not to address the variation of absolution from the instance employed
in criminal courts towards supporting the contention that absolution from the
instance, in a variety of forms, is applied across a wide spectrum of forums as a
mechanism for realising justice when the aggrieved party cannot substantiate his
or her claim. Towards this end only does the article briefly highlight the appli-
cation of absolution from the instance – or discharge in terms of section 174 of
the CPA – by criminal courts.
In a criminal matter, an order for absolution from the instance is implemented
by way of an application for discharge in terms of section 174 of the Criminal
Procedure Act which provides that:
“If, at the close of the case for the prosecution at any trial, the court is of the
opinion that there is no evidence that the accused committed the offence referred to
in the charge or any offence of which he may be convicted on the charge, it may
return a verdict of not guilty.”
The test for applying a section 174 discharge to a particular matter was established
in the matter of S v Shuping 39 where Hiemstra CJ concluded that:

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Mdluli v Custom Harness Manufacturer (J918/2005) [2015] ZALCJHB 162 (29 May
2015) para 7. Accordingly, the Labour Court has on numerous occasions made an order for
absolution from the instance where the applicant failed to make out a prima facie case
against the respondent. See, eg, Yedwa v Nebank Group Ltd (JS 660/11) [2013] ZALCJHB
176 (31 July 2013) para 23.
34 The test for granting an order for absolution from the instance in the Labour Court is the
same test employed by civil courts established in Claude Neon Lights (SA) v Daniel 1976 4
SA 403 (A). See National Union of Metalworkers (fn 33 above) para 8.
35 See s 167(2) of the LRA.
36 See s 167(3) of the LRA.
37 See s 174 of the LRA.
38 Act 51 of 1977.
39 1983 2 SA 119 (B).
92 2016 (79) THRHR

“At the close of the State’s case, when discharge is considered, the first question is:
(i) Is there evidence on which a reasonable man might convict; if not (ii) is there a
reasonable possibility that the defence evidence might supplement the case? If the
answer to either question is yes, there should be no discharge and the accused by be
placed on his defence.”
The formulation in Shupping, despite being criticised for being in conflict with
the accused’s right to a fair trial, was considered to be the locus classicus. This
position recently changed. In the matter of S v Lubaxa 40 Nugent AJA addressed
the criticism levelled at Shupping which relates to the second leg of the enquiry
permitting an accused person to be placed on his defence in the expectation that
the defence evidence might supplement the prosecution’s case. 41 The supple-
mentation may be by the accused who enters the witness box and accordingly
incriminates himself, or, where there is more than one accused, the accused
might be incriminated by a co-accused. 42 The court was convinced that an
accused ought not to be prosecuted in the absence of a minimum of evidence
upon which he might be convicted on the off chance that he or she might at some
stage incriminate him- or herself. 43 The Supreme Court of Appeal essentially did
away with the second leg of the Shupping test: an accused should not be
expected to assist the state in proving its case against him or her where the state
has failed to establish a prima facie case to which the accused must answer. It
has subsequently been confirmed that failure to discharge an accused in those
circumstances, if necessary mero motu, is a breach of the rights that are
guaranteed by the Constitution and will ordinarily vitiate a conviction based
exclusively upon his self-incriminatory evidence. 44
Undoubtedly, the context of the application for discharge in terms of sec-
tion 174 of the CPA cannot be, and is not, recommended to be applicable with
respect to the application of absolution from the instance in the CCMA.
However, it is important to take cognisance of the similarity an order for dis-
charge has to an order for absolution from the instance if the state fails to make
out a prima facie case against an accused. The effect of the order for discharge,
as in the case for absolution from the instance, is to realise justice for the accused
where the court cannot reasonably be expected to find on behalf of the state at
the close of its case.
2 4 Consequences of an order for absolution from the instance
An order for absolution from the instance in civil courts, including the Small
Claims Court and the Labour Court, and the equivalent order for discharge in
terms of section 174 CPA in criminal courts, effectively terminates the pro-
ceedings as there are no prospects that the plaintiff, if the case continues, might
succeed. In such circumstances the defendant is spared the trouble and expense
of continuing to mount a defence to a hopeless claim. 45

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40 2001 2 SACR 703 (SCA).

41 Para 14.
42 Para 15.
43 Para 18.
44 See S v Liebenberg (K/S 88/04) [2005] ZANCHC 122.
45 Ibid.
ABSOLUTION FROM THE INSTANCE AND THE CCMA 93

2 4 1 The order is not final: a special plea of res iudicata cannot be raised if the
claim is re-instituted
If the application for absolution from the instance in civil courts, Small Claims
Courts and the Labour Court succeeds, the plaintiff’s action ends and the
defendant is relieved from having to lead evidence to dispute the plaintiff’s
case. 46 Absolution from the instance has the effect of bringing proceedings to an
end, but does not amount to res iudicata: a plaintiff may reinstitute action on the
same cause of action because the order for absolution from the instance does not
decide the dispute between the parties on the merits. 47 Accordingly, an order for
absolution from the instance does not bring finality to the dispute. 48 A plaintiff is
therefore free to enrol the matter for hearing again on the same cause of action. 49
2 4 2 The plaintiff can appeal against an order for absolution from the instance
A plaintiff against whom an order for absolution from the instance has been
granted can, with leave, appeal against the order on the basis that the court a quo
failed to properly consider and apply itself to the evidence that the plaintiff pre-
sented in proving his or her claim. It has happened time and time again that a
plaintiff returns to the court and succeeds with the application to appeal against
an order for absolution from the instance granted by the court a quo. 50 In De
Klerk v Absa Bank Ltd, 51 the Supreme Court of Appeal established the threshold
of proof that a court must consider when requested for an order for absolution
from the instance. Accordingly, it important to note that counsel who applies for
absolution from the instance at the end of the plaintiff’s case, even if the
plaintiff’s case is weak, takes a risk that the order may be reversed on appeal if
the threshold for considering the plaintiff’s case had not been met. 52
3 THE CASE FOR EMPLOYING ABSOLUTION OF THE INSTANCE
IN THE CCMA
The CCMA is established by section 112 of the Labour Relations Act 55 of
1996. It is an independent organisation 53 with jurisdiction throughout the
Republic 54 and its primary functions are to resolve, through conciliation, 55 dis-
putes referred to it and to arbitrate disputes that remain unresolved. 56 A commis-
sioner is granted wide powers 57 to resolve a dispute and “may conduct the
arbitration in a manner that the commissioner considers appropriate in order to
determine the dispute fairly and quickly, but must deal with the substantial
merits of the dispute with the minimum of legal formalities”. 58

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46 See De Klerk v Absa Bank Ltd [2003] 1 All SA 651 (SCA) para 1.
47 See (JA64/06) [2008] ZALAC 15 (23 December 2008) para 20. Minister of Safety and
Security v Madisha (JR161-07) 2009 ILJ 591 (LC) (29 July 2008) para 20. See also
Ncaphayi v CCMA 2011 ILJ 402 (LC) para 27.
48 (JR161-07) 2009 ILJ 591 (LC) (29 July 2008) para 20.
49 An order for discharge.
50 See [2003] 1 All SA 651 (SCA) para 1.
51 See [2003] 1 All SA 651 (SCA).
52 See [2003] 1 All SA 651 (SCA) para 1.
53 See s 113 of the LRA.
54 See s 114 of the LRA.
55 See s 115(1)(a) of the LRA.
56 See s 115(1)(b) of the LRA.
57 See s 142 of the LRA.
58 See s 138(1) of the LRA.
94 2016 (79) THRHR

By nature, the CCMA regulates interpersonal relationships between employers

and employees who are at an impasse in their work relationship. However, it has
been established that statutory arbitrators may not simply substitute their own
value judgments for an employer’s decision. Commissioners are required to
exercise their value judgments within the objective framework established by the
LRA and recognised jurisprudence. 59

3 1 The current position

There is currently no reference to absolution from the instance in South African
labour legislation. The only possible application in the CCMA would be if the
commissioner bestows this power on himself in accordance with the general
powers in terms of section 138(1) of the LRA. 60 The reality remains that the
CCMA is not a court of law 61 but a tribunal born to effect dispute resolution with
the least possible formalities. Arbitration proceedings in the CCMA thus con-
stitute administrative action and the commissioner conducting arbitration in the
CCMA performs an administrative function. 62
The LRA does not expressly or otherwise prohibit the CCMA or the com-
missioner acting under its auspices from granting absolution. It is therefore
argued that a commissioner who complies with section 138(1) and deals with a
matter fairly and quickly by granting absolution cannot be said to be acting ultra
vires. However, section 138 of the LRA enjoins the commissioner to finalise the
dispute between the parties by way of arbitration, the finding of which is final
and binding. It is for this reason that that the Supreme Court of Appeal in
Mashida 63 ruled that it would be inconsistent with the purpose of the CCMA’s
functions to make possible the re-opening of proceedings with the granting of an
order for absolution from the instance. 64 Moreover, the court determined that the
requirement that the CCMA “must” issue an award within 14 days of the conclu-
sion of the award 65 makes it very clear that a commissioner does have the neces-
sary power to grant absolution from the instance. 66 The Supreme Court of
Appeal subsequently held that the CCMA does not have inherent powers to grant
an order for absolution from the instance, nor can it assume the power to grant
such order in the absence of an empowering provision. 67 Currently, an order for

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59 See Grogan Workplace law (2014) 240–241. See also Sidumo v Rustenburg Platinum
Mines Ltd 2007 ILJ 2405 (CC); Theewaterskloof Municipality v SALGBC (Western Cape
Division) 2010 ILJ 2475 (LC).
60 Act 66 of 1995.
61 Rachel, Morale v Panorama Bakery and Supermarket 1992 3 1 SALLR 42 (IC) 90.
62 CCMA v Law Society, Northern Provinces (005/13) [2013] ZASCA 118 (20 September
2013) para 18.
63 (JR161-07) 2009 ILJ 591 (LC) (29 July 2008). In PT Operatioal Services (Pty) Ltd v
RAWU obo Ngwetsana 2013 ILJ 1138 (LAC) (27 November 2012) para 30 the Labour
Appeal Court confirmed the position in law that CCMA commissioners under the auspices
of the CCMA perform administrative functions which may include adjudicative functions.
The Labour Appeal Court subsequently confirmed that only after an administrative agency
has finally performed all its statutory duties or functions in relation to a particular matter
which is subject to its jurisdiction can it be said that its powers or functions were spent.
64 (JR161-07) 2009 ILJ 591 (LC) (29 July 2008) para 26.
65 See s 138(9) of the LRA.
66 (JR161-07) 2009 ILJ 591 (LC) (29 July 2008) para 28.
67 Ibid.
ABSOLUTION FROM THE INSTANCE AND THE CCMA 95

absolution from the instance by a commissioner amounts to a gross irregularity

and exceeds the commissioner’s power, thus rendering the arbitration reviewable. 68

3 2 The (unintended) implications of the amendment to the Employment

Equity Act for the CCMA’s case-load
Prior to the amendment of the Employment Equity Act (EEA) 69 all cases and
claims of unfair discrimination fell within the exclusive jurisdiction of the
Labour Court. Subsequent to the amendment, parties were given the option of
referring their dispute to the CCMA for arbitration (a) if the employee’s cause of
action arises from an allegation of unfair discrimination on the grounds of sexual
harassment, (b) if an employee allegedly at the receiving end of unfair dis-
crimination earns less than the earnings threshold, or (c) if all the parties to the
dispute consent thereto. 70 This has two significant implications for the CCMA.
Firstly, the amendment to the EEA elevated the capacity of the CCMA to deal
with cases that previously fell exclusively within the ambit of the Labour Court,
thereby seemingly equating the character of the CCMA to that of a court of law.
Secondly, as an unintended consequence of the amendment to the EEA, the
existing CCMA case-load will likely increase significantly. 71 As a result, there
arises a need to find a means to alleviate the further burdening of an already
overburdened CCMA.
It is important also to note that, more often than not, the CCMA deals with
complicated matters that necessitate legal representation to be allowed in terms
of CCMA rule 25(c)(1). In such cases, the proceedings necessarily become for-
malistic and the rules of procedure 72 are applied in full. Parties may, for example,
conduct pre-arbitration conferences 73 and sign pre-arbitration minutes to curtail

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68 Para 29.
69 By the Employment Equity Amendment Act 47 of 2014.
70 Employment Equity Amendment Act 47 of 2014.
71 According to Ramutloa (fn 4 above) the CCMA should brace itself for a rise in the number
of cases that relate to discrimination in the workplace.
72 A commissioner who has been appointed to resolve a dispute may subpoena for question-
ing any person who may be able to give information, or whose presence at conciliation or
arbitration proceedings may help to resolve the dispute. Rule 37 of the CCMA rules pro-
vides that any party who requires the CCMA or the commissioner to subpoena a person in
terms of s 142(1) of the LRA must file a completed LRA form 7.16 together with a written
motivation. This rule corresponds with rule 26(1) of the Magistrates’ Courts Rule 72 which
provides that the process for compelling the attendance of any person to give evidence
or to produce any book, paper or document shall by subpoena be issued by the clerk of
the court and sued out by the party desiring the attendance of such person. The use of
subpoenas are not provided for in the Small Claims Court.
73 Rule 25 of the Magistrates’ Courts Rules, read with s 54(1) of the Magistrates’ Courts Act,
provides that a party to a suit may request the court to convene a pre-trial conference. The
purpose of a pre-trial conference is to shorten the trial, notwithstanding the fact that the
present rule now contains numerous peremptory provisions outlining the obligations with
which the parties must comply before, during and after the pre-trial conference. The
equivalent for the pre-trial conference in the context of the CCMA is the pre-arbitration
conference. Rule 20(1-19) of the CCMA Rules enumerates those issues on which the
parties to the pre-arbitration conference must attempt to reach consensus. These include
(a) whether the evidence on affidavit will be admitted, (b) whether this should be done with
or without the right of any party to cross-examine the person who made the affidavit,
(c) the necessity for any on-spot inspection, (d) securing the presence at the commission of
continued on next page
96 2016 (79) THRHR

the number of disputed facts and shorten the proceedings in a manner utilised in
both civil and criminal courts to a certain extent. Given the binding nature of a
signed pre-arbitration minute, parties are held to versions to which they confined
themselves in the pre-arbitration minute. By necessary implication, where a party
who bears the onus of proof has bound him- or herself to a version that is
inherently fatal to that party’s case, there is no reason why, based on such fatal
admission or version, the other party should not be able to apply for an absolu-
tion from the instance.
Moreover, there has been a significant rise in the number of dispute referrals
based on fabricated facts and/or facts that are deliberately misrepresented or that
amount to frivolous 74 or vexatious 75 claims. 76 The primary reasons are submitted
to be:
(a) the fact that employees lose approximately 40% of the cases referred to the
CCMA;
(b) it is easy for employees to refer disputes to the CCMA because the process
is simple and free of costs, and they do not require representation; and
(c) the fact that the CCMA does not charge employees for its services. 77
There are also instances where the dispute referral is intended to vindictively
extort money out of the employer, or to evade discipline. 78 Such practices are not
only dishonest, but also waste the CCMA’s time and resources. In response to
dealing with these disputes, the CCMA has resorted to making cost orders 79
against the employee, 80 but the enforcement of such a cost order is more often
than not impossible due to the employee’s lack of funds. Despite the fact that the
CCMA has started taking action against employees that bring frivolous and

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any witness, (e) the exchange of witness statements, (f) expert evidence, and (g) the estim-
ated time required for the hearing. Many of these are similar to the issues discussed during
a pre-trial conference. In the Small Claims Court, however, provision is not made for the
use of pre-trial conferences.
74 Frivolous means trivial or insignificant. Israelstam fn 10 above.
75 Vexatious means annoying and groundless. Israelstam fn 10 above.
76 Israelstam fn 10 above.
77 Ibid.
78 Ibid.
79 With respect to taxing bills of cost, rule 33(8) of the Magistrates’ Courts Rules,79 read
with s 80 of the Magistrates’ Courts Act, provides for taxation of bills of cost in the
Magistrates’ Courts. Similarly, rule 37 of the CCMA Rules provides for taxation of bills of
cost. The basis on which a commission may make an order as to costs in arbitration is
regulated by s 138(10) of the LRA. The director of the commission may appoint a taxing
officer in terms of the rules. At the taxation of any bill of cost, the taxation officer may call
for any book, document, paper or account that, in the taxing officer’s opinion, is necessary
to properly determine any matter arising from taxation. Any person requesting taxation
must complete LRA form 7.17 and must satisfy the taxing officer of that party’s entitle-
ment to be present at the taxation, as well as that the party liable to pay the bill has received
notice of the date, time and place of taxation. Any decision by a taxing officer is subject to
review by the Labour Court. In the Small Claims Court, however, provision is not made for
taxing bills of cost.
80 See Simane v Coca-Cola 2006 (10) BALR 1044. See also Ndwalane v The Magic
Company (Pty) Ltd 2006 (5) BALR 497.
ABSOLUTION FROM THE INSTANCE AND THE CCMA 97

vexatious claims, the fact remains that the entire “empty” matter must still be
heard before the commissioner makes the appropriate order dismissing the claim
and granting a cost order. The possibility of an order for absolution from the
instance in such matters will go a long way towards addressing the frivolousness
and/or vexatiousness of the claim earlier, thereby saving costs and time.

3 3 Similarities between the CCMA and the Magistrate’s Court and Small
Claims Court
In the context of the prevailing socio-economic circumstances in South Africa
not only is it important, but also “appropriate” for the CCMA to deal with mat-
ters with the least possible technical and legal formalities. CCMA commissioners
are well positioned to simplify arbitration procedures. 81 The LRA provides that
the commissioners should always assist parties to any dispute, and there is no
apparent reason why this should exclude assisting parties by simplifying pro-
cesses such as applying for absolution. Such simplification would of course be
even more relevant in circumstances where the parties have little legal know-
ledge or are illiterate – a primary objective driving accessibility to Small Claims
Courts.
It is quite clear that providing for the application of absolution from the
instance as developed for civil courts will be beneficial towards furthering the
objectives of the CCMA. Given that proceedings in the CCMA resemble civil
litigation processes, which include a measure of formalism and similarity in
proceedings, it is submitted that much of the groundwork for implementing
absolution from the instance in the CCMA has already been established.
Towards indicating the ease with which absolution from the instance can be
implemented in the CCMA on the basis of the civil method, particularly the sui
generis variation employed in the Small Claims Court, a brief comparison will
be drawn of the most prominent processes and practices applied across the
spectrum in the Magistrate’s Court, the Small Claims Court and the CCMA.

3 3 1 Creature of statute
The Magistrate’s Court and the Small Claims Court are both creatures of statute
established in terms of the Magistrates’ Courts Act and Small Claims Court Act
respectively. 82 The jurisdiction of these courts are limited to the extent provided
for in the relevant empowering legislation. The CCMA, similarly, is a creature of
statute established and authorised by Chapter VII of the Labour Relations Act. 83
Moreover, as in the case of the Magistrate’s Court 84 and the Small Claims
Court, 85 there is a body of rules (CCMA rules) 86 for conducting proceedings
before the CCMA.

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81 See s 149(c) of LRA.

82 61 of 1984.
83 (JR161-07) 2009 ILJ 591 (LC) (29 July 2008) para 9.
84 Rules regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa
(2014) (GN R507 in GG 37769 of 27 June 2014).
85 Rules Regulating Matters in Respect of Small Claims Courts published under GN R1893 in
GG 9909 of 30 August 1985 and amended by GN R851 in GG 13178 of 19 April 1991.
86 Rules for the Conduct of Proceedings before the Commission for Conciliation Mediation
and Arbitration (GG 38752 of 17 March 2015).
98 2016 (79) THRHR

3 3 2 Presiding officer
In the Small Claims Court, the officer presiding is a commissioner appointed by
the Minister of Justice or any officer of the Department of Justice with the rank
of director-general or its equivalent. 87 In the case of the CCMA, the presiding
officer is also a commissioner appointed by the governing body of the CCMA. 88
Commissioners of the CCMA are trained to simplify procedures for the benefit
of both parties (particularly if the parties are illiterate) in the same manner as the
commissioners of the Small Claims Court.

3 3 3 Rules of evidence
The CCMA applies, and is bound by, the same rules of evidence as those applied
in a court of law: “what must be proved in the CCMA is a question of substan-
tive law, and the manner of proving it is the concern of the rules of evidence”. 89
As in a civil court, both the Magistrate’s Court and the Small Claims Court, the
quantum of proof in the CCMA is on a balance of probabilities 90 and the appli-
cant carries the same burden of proof as is the case in civil litigation. Upon the
applicant or respondent’s failure to discharge such onus to the satisfaction of the
commissioner, the application or case will be dismissed.

3 3 4 Contempt of the commission

In the CCMA, a person commits contempt of the CCMA in terms of section
142(8) of the LRA if, after having been subpoenaed, a person does not attend at
the time and place stated in the subpoena, or if that person fails to remain in
attendance until excused by the commissioner, or if the person refuses to take an
oath or make an affirmation as a witness when a commissioner so requires, or if
he or she refuses to answer any question. A commissioner may make a finding
that a party is in contempt of the Commission for any of the above reasons, and
many others. Similarly, in the Small Claims Court, section 48 of the Small Claims
Court Act 91 provides for the offence of contempt of court action directed at
insulting the commissioner, interrupting the proceedings or misbehaving in any
manner.

3 3 5 Applications
Rule 55 of the Magistrates’ Courts Rules deals extensively with application
procedures. Similarly, rules 31 to 33 of the CCMA Rules empower the CCMA to
deal with any application for condonation, joinder, substitution, variation or
rescission, applications in jurisdiction disputes, and other preliminary or inter-
locutory applications which can be described as non-legal formalities.

3 3 6 Legal representation
Similar to proceedings in the Magistrate’s Court and the Small Claims Court, 92 a
party to arbitration proceedings before the CCMA may be represented by a legal

________________________

87 Ibid s 9(1)(a).
88 See s 117 of LRA.
89 Oelschig Evidence and labour law (2005) 1.
90 See Cycad Construction Pty Ltd v CCMA 1999 ILJ 2340 (LC).
91 Act 61 of 1984.
92 Small Claims Courts rule 23.
ABSOLUTION FROM THE INSTANCE AND THE CCMA 99

practitioner notwithstanding the conditions for being so represented which were

set by rule 25(1)(c) of the CCMA Rules. In 2002, the Supreme Court of Appeal
in Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Com-
mittee 93 held that a rule excluding the right to legal representation under any
circumstances may violate the constitutional right to fair administrative action.
The Constitutional Court left the question on the constitutionality of Rule 25(1)(c)
of the CCMA Rules open. 94 In the recent case of CCMA v Law Society, Northern
Provinces 95 the Supreme Court of Appeal again undertook to consider the con-
stitutionality of rule 25(1)(c) of the CCMA Rules. The appeal to the Supreme
Court of Appeal concerned a declaration by the High Court that the sub-rule was
unconstitutional and invalid. Interestingly, the claim regarding rule 25(1)(c)
arose from the Law Society’s allegation that the sub-rule denied its members
work and thus infringed on section 22 of the Constitution which guarantees
every person the right to choose his or her trade, occupation or profession freely.
The Law Society also claimed that the sub-rule infringed on section 34 of the
Constitution which ensures that every person has the right to have any dispute
resolved by the application of law resolved in a fair public hearing before a court
or another independent and impartial tribunal or forum. The court a quo found
rule 25(1)(c) inconsistent with section 3(3) of the Promotion of Administrative
Justice Act (PAJA), 96 but the Supreme Court of Appeal disagreed on the basis
that PAJA does not apply to the procedures adopted by CCMA arbitrators:
neither section 33 of the Constitution nor PAJA precludes specialised legislative
regulation of administrative action alongside general legislation such as PAJA. 97
The Supreme Court of Appeal concluded that PAJA could not find application in
the matter because the LRA created a self-contained regime for reviews of
arbitration which applies equally to the separate regime it creates for the fair con-
duct of arbitrations by the CCMA. 98 As to the allegation that the rule impedes
upon the Law Society member’s access to work, the Supreme Court of Appeal
held that section 22 of the Constitution does not guarantee the right to receive
business. 99 Moreover, rule 25(1)(c) in no way purports to regulate entry into the
legal profession, nor does it affect the continuing choice of legal practitioners to
remain in the profession. 100 The legal position that there is no unqualified consti-
tutional right to legal representation before an administrative tribunal remains
intact.

3 3 7 Default awards
Aside from the similarities already discussed, the possibility of obtaining a de-
fault award in the CCMA is one of the most significant examples of a similarity
between civil court processes and CCMA processes. A default award operates in

________________________

93 2002 ILJ 1531 (SCA).

94 See Netherburn Engineering CC t/a Netherburn Ceramics v Mudau 2010 2 SA 269 (CC)
paras 9 13.
95 [2013] ZASCA 118 (20 September 2013).
96 Promotion of Administrative Justice Act 3 of 2000.
97 [2013] ZASCA 118 (20 September 2013) para 20.
98 Ibid.
99 Para 3.
100 Para 25.
100 2016 (79) THRHR

exactly the same manner as a default judgment in civil litigation. 101 Rule 30(1) of
the CCMA Rules provides that:
“If any party to a dispute fails to attend or be represented at any arbitration
proceedings before the Commission, and that party (a) referred the dispute to the
Commission, a commissioner may dismiss the matter by issuing a written ruling; or
(b) did not refer the matter to the Commission, then the commissioner may either
(i) continue with the proceedings in the absence of the party; or (ii) adjourn the
proceedings to a later date.”
Before the commissioner may make a decision in terms of rule 30(1) he or she
must be satisfied that the absent party had been properly notified of the date,
time and place of the proceedings. 102 Where an employee fails to attend an
arbitration hearing, the arbitrator may dismiss the matter. 103 Where an employer
fails to attend an arbitration hearing, the arbitrator is entitled to continue without
the employer, unless the arbitrator is aware of an acceptable reason for the
employer’s absence. 104 As the arbitrator has little or no way of testing the truth
of the employee’s evidence, he or she will probably accept the employee’s ver-
sion and find against the absent employer. 105 More akin to the provisions of rule
30(1)(b) of the CCMA Rules, section 35(1)(b) of the Small Claims Court Act
provides that if the defendant fails to appear before the court on the trial date or
any date to which the proceedings have been postponed the court may grant
judgment in favour of the plaintiff in as far as the plaintiff has proven the
defendant’s liability and the amount of the claim to the satisfaction of the court.
Moreover, as in the case of the provisions contained in rule 30(1)(a), section
35(2)(a) of the Small Claims Court Act provides that a where a plaintiff fails to
appear, the commissioner may dismiss the claim provided that the plaintiff may
again institute action for that claim with consent of the court.

3 3 8 Rescission of judgment
The possibility of a default judgment is naturally accompanied by the possibility
of a rescission order. Therefore, a last similarity important to the case for imple-
menting absolution from the instance in the CCMA is the possibility of obtaining
an order for rescission of the award granted in the defendant’s absence. As in
both the Magistrates’ Courts Act 106 and the Small Claims Court Act, 107 provision
is made for recession of judgment in rule 32 of the CCMA Rules. A rescission of
application is normally made to the same arbitrator who made the original de-
fault award. 108 A refusal to grant rescission of judgment can be taken on review
to the Labour Court. 109

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101 Magistrates’ Courts rule 12.

102 Israelstam “With valid reason, default judgments can be reversed” in The South African
labour guide 1 available at http://bit.ly/1JSlL8e (accessed on 21 September 2015).
103 Ibid.
104 Ibid.
105 Ibid.
106 See s 36 Act 32 of 1994.
107 See s 36 of Act 61 of 1984.
108 Israelstam fn 102 above.
109 Ibid.
ABSOLUTION FROM THE INSTANCE AND THE CCMA 101

3 4 Absolution from the instance: CCMA has the authority to re-enrol

matters
In SAMWU v CCMA, 110 Steenkamp J had to decide on the effect of a withdrawal
from a matter by the referring party and whether the CCMA had jurisdiction to
enrol a second referral for arbitration on the same facts as the first referral pre-
viously willingly withdrawn. As regards the effect of the withdrawal, Steenkamp J
confirmed the finding in Ncaphayi v CCMA 111 that withdrawal of the matter by
the party had the same effect as an order of absolution from the instance. 112
As to the question of the CCMA’s jurisdiction to enrol the second referral of
the dispute, Steenkamp J concluded that the similarity of a withdrawal to an
order for absolution from the instance did not deprive the CCMA of jurisdiction
to enrol the second referral for arbitration, nor did the defence of election affect
the CCMA’s jurisdiction. 113 In the recent case of South African Municipal
Workers Union v Zenzeleni Cleaning And Transport Services CC 114 the Labour
Court confirmed the position established in SAMWU and Ncaphayi.

4 THE AUDI ALTERAM PARTEM RULE AND ABSOLUTION FROM

THE INSTANCE
In Mashida, the Supreme Court of Appeal noted the importance of the require-
ment that the commissioner grants each party a proper and fair opportunity to
present their respective cases to an unbiased arbitrator. 115 Jacobs J has accor-
dingly contended that the requirement for the application of the common law
audi alteram partem rule, read with section 138(1) of the LRA, results in the
commissioner’s failure to deal with the substantial merits of the disputes if he
grants absolution. 116
The audi alteram partem rule serves to provide an aggrieved party with a
mere right to present his side of the story to the commissioner. 117 There is no

________________________

110 2014 ILJ 2011 (LC).

111 2011 ILJ 402 (LC) para 26.
112 SAMWU v CCMA 2014 ILJ 2011 (LC) para 15.
113 Idem paras 15 17.
114 (JR852/13) [2015] ZALCJHB 47 (23 February 2015).
115 (JR161-07) 2009 ILJ 591 (LC) (29 July 2008) para 17.
116 Jacobs 2010 (52) De Rebus 42. This, respectfully, is submitted to be incorrect. The audi
alteram partem rule is an inextricable principle of natural justice concluded to comprise
of the following: “Firstly, that a party to an administrative hearing or inquiry must be
given the opportunity to state his or her own case if the hearing or enquiry is to lead to the
exercise of a discretion which could affect the party`s existing rights, privileges and
freedoms. Secondly, that potentially prejudicial facts and considerations must be affected
by the administrative decision, to enable him/her to rebut such facts and considerations.
Thirdly, that an administrative organ which exercises discretionary power must give
reasons for decisions. Fourthly, that the administrative organ exercising the discretion
must be impartial.” See Wiechers Administrative law (1990) 210–211.
117 It also serves to provide the aggrieved party with a mechanism for recourse in the event
that his or her side of the story is not listened to or regarded if or when he or she makes
the information available. The accepted composition of the audi alteram partem rule as
applied in our law cannot be interpreted to imply that an aggrieved party must state his or
her case if he or she does not desire to do so. For this very reason, a defendant can, in lieu
of applying for absolution from the instance, simply close his or her case without leading
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102 2016 (79) THRHR

obligation upon a defendant to present his or her side of the story if he or she
believes that the plaintiff has failed to present a prima facie case that must be
met with a defence. If one were to regard section 138(1) read with the audi
alteram partem principle to mean that the commissioner failed to deal with the
substantial merits of the case, one must draw the conclusion that a defendant
should also not be allowed to simply close his or her case without leading
evidence because doing so would result in the commissioner failing to decide the
dispute on the merits.
Secondly, the very procedures set out in the LRA and the CCMA Rules
encapsulate the audi alteram partem rule in law by providing for recourse
against dismissal proceedings that did not adhere to the rules of substantive and
procedural fairness – the rules of natural justice. 118 It is submitted that the short
reference to the audi alteram partem rule in Mashida was not intended to
establish a connection between section 138(1) of the LRA and the audi alteram
partem rule. 119

5 CONCLUSION
The purpose of this article is to evaluate the possibility of implementing
absolution from the instance matters before the CCMA in a manner similar to
that employed in civil courts and, more specifically, the sui generis application
thereof utilised in the Small Claims Court. Towards this end it has been
established that absolution from the instance in the CCMA will promote the
purposes of the LRA by providing an avenue to lessen the CCMA’s ever-
increasing case load and to effectively root out frivolous and vexatious claims. It
established that the ground work for implementing absolution from the instance
in the CCMA along the lines of the civil method has already been laid.
Moreover, the argument that the audi alteram partem principle can be perceived
to be an obstacle to implementing absolution from the instance in the CCMA has
been shown to be unfounded.
There is currently very little literature on the topic of applying absolution from
the instance in the CCMA, but it is anticipated that the discussion in this article
will further stimulate the debate on the matter. There are undoubtedly various
other factors that will require contemplation towards realising the possibility of
employing absolution from the instance in the CCMA along the lines utilised in
the Small Claims Court.

5 1 Recommendations: legislative action

In this article the argument is made that absolution from the instance is a viable
mechanism that will prove useful in the realisation of justice in the CCMA. As it
currently stands, the application for absolution from the instance in the CCMA
can only be provided for by legislative intervention, which would entail two

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any evidence after the plaintiff closes his or her case, albeit as his or her own risk. See
also Hoexter Administrative law in South Africa (2012) 371–376 .
118 See (JR161-07) 2009 ILJ 591 (LC) (29 July 2008) para 17.
119 The court’s reference was intended to (a) reiterate the purpose of the LRA and the forum
it establishes, the CCMA, to realise social justice in employment law; and (b) to strengthen
the court’s evaluation of s 138(1) and its purpose towards bringing the dispute to a close
without the option of reviving the matter.
ABSOLUTION FROM THE INSTANCE AND THE CCMA 103

distinct steps. Firstly, the legislator needs to intervene in the same manner as it
did to amend section 10 of the Employment Equity Act repealing the current
phrase “with the minimum of legal formalities” in section 138(1) of the LRA,
and expressly conferring upon CCMA commissioners the discretionary powers
to exercise absolution from the instance in arbitration proceedings with a right of
appeal to the Labour Court.
Secondly, section 117(1) of the LRA, which provides for the governing body
to appoint as many adequately qualified persons as it considers necessary to
perform the functions of commissioners in terms of the Act, must be amended
so that any reference to “qualified persons” should be interpreted to mean legal
professionals such as attorneys, advocates, senior advocates and retired judges.
Their professional expertise would help to simplify complex issues in arbitration
proceedings and would assist in considering whether absolution from the
instance should be granted when one party applies for it.
The preferred outcome of such legislative amendments would be for the
CCMA, at least when dealing with arbitrations, to be empowered to apply
absolution from the instance in the same manner as in the Small Claims Court
and subject to the test applicable in civil matters. That being said, however,
conferring on the CCMA the powers to exercise absolution from the instance
should in no way be construed as elevating the commission’s authority from
administrative to judicial. The CCMA will remain an organ of state bound by the
Constitution, 120 but such a step will serve as an enabling mechanism to complete
the set of tools at the Commission’s disposal to properly fulfil the function for
which it was created.

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120 See s 39 of the Constitution of the Republic of South Africa, 1996.