“[20] As already pointed out, the Commissioner held a particular view with regard to making his award retrospective and changed that view when he issued the final award.  In my view nothing prevented him from changing his view for as long as it was not what he presented as his final view.  Of course it may not be advisable to do as the Commissioner did in this case as an expectation was or could be created  in the minds of those who stood to benefit from his view, if it finally became his decision.  However, it cannot be said on the facts of this case that the Commissioner was functus officio.  The views expressed in his email cannot be said to be his intended final and determinative view of the matter.  For the functus officio doctrine to apply it is a requirement that there be a final judgment or order.  In that situation the Commissioner would have no power to correct, alter, or supplement the order because his jurisdiction in the case has been fully and finally exercised, unless he/she acts in terms of s 144 of the Act. This was not the case with the Commissioner in this matter.  Since there was no award it can therefore not be said that the matter was not determined fairly and that the Commissioner must be held to his previous view”.

South African Municipal Workers Union (SAMWU) v South African Local Government Bargaining Council and Others (DA7/2012) [2014] ZALAC 5; [2014] 7 BLLR 711 (LAC) (13 February 2014)

Coram: Tlaletsi DJP, Musi and Mokgoatlheng AJJA

Heard:           03 September 2013                Delivered:     13 February 2014

Appeal disallowed.

[1] This appeal is about whether an email, containing an extract of an award yet to be issued, written and sent by the second respondent (“the Commissioner”)  to the parties’ legal representatives for  comment  constituted his award and whether he could  change the extract before issuing the award.  In light of the narrow issue to be determined it shall not be necessary to set out in detail the factual background relating to the original dispute between the parties.  The factual background will therefore be limited to the matters that led to the current issue between the parties.