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[2020] ZALAC 33
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Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA74/2018) [2020] ZALAC 33 (24 June 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA74/2018
In the matter between:
ELLIES
ELECTRONICS (PTY) LTD
Appellant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
B KHUMALO N.O. Second Respondent
G
MEMMO Third Respondent
MEGATRON
SA (PTY) LTD Fourth
Respondent
Heard:
28 May 2020
Delivered:
24 June 2020
Coram:
Phatshoane ADJP, Davis JA and Savage AJA
JUDGMENT
SAVAGE AJA
[1]
This appeal concerns the refusal of
the Labour Court (Lekale AJ) on 9
March 2018 to reinstate a review application instituted on 15 April
2015 by Ellies (Pty) Ltd
(‘Ellies’), a business owned by
Ellies Holdings Ltd, but withdrawn by its business rescue
practitioner on 14 March
2017. The Court also refused to join the
appellant, Ellies Electronics (Pty) Ltd, a wholly owned subsidiary of
Ellies Electronics
Holding (Pty) Ltd, which in turn is owned by
Ellies Holdings Ltd, as co-applicant to such review application.
[2]
The third respondent, Mr Gianluca Memmo
(‘Mr Memmo’)
resigned on 19 September 2015 from Ellies. At the date of his
resignation he was employed as Executive
Commercial Manager in the
consumer/commercial division (‘the division’) of Ellies.
Mr Memmo referred a constructive
dismissal dispute to the Commission
for Conciliation Mediation and Arbitration (‘CCMA’). On 5
March 2015, his dismissal
was found unfair and he was awarded R1
million compensation by the CCMA. Shortly thereafter Ellies,
represented by Webber Wentzel
attorneys, applied to the Labour Court
for the review of the arbitration award.
[3]
On 1 May 2015, following the appellant’s
purchase of the
division from Ellies, it was transferred as a going concern to the
appellant. On 12 June 2015, Ellies changed its
name to Megatron SA
(Pty) Ltd. Despite the transfer of the division by Ellies to the
appellant, Webber Wentzel, apparently acting
on behalf of Ellies,
filed a supplementary affidavit in the review application on 3
September 2015 and the replying affidavit on
15 October 2015. Heads
of argument were filed in early 2016.
[4]
In August 2016, Megatron SA was placed
in business rescue. On 14
March 2017, on the instruction of the appointed business rescue
practitioner, Webber Wentzel withdrew
the review application launched
by Ellies.
[5]
On 22 September 2017, the employee
sought to enforce the arbitration
award in terms of section 158(1)(
c
) of the Labour Relations
Act 66 of 1995 (‘the LRA’) and substitute the appellant
as his employer. In response, on 3
November 2017, the appellant,
represented by Webber Wentzel, launched an application seeking
the reinstatement of the review
application and an order joining
it as second applicant to the review application. The employee did
not oppose the application.
Judgment
of the Labour Court
[6]
The Labour Court refused the appellant’s
application on the
basis that:
‘
[17]
In my considered opinion, it is not possible to reinstate withdrawn
proceedings regard being head, inter-alia, to the need
for finality
in legal disputes and expeditious resolution of labour disputes in
particular. The need to comply with the prescribed
timeframes such as
the six-week period limited by section 145 (1) of the LRA for
launching review proceedings also militate strongly,
in my view,
against reinstatement of withdrawn review proceedings as opposed to
reinstitution of the same in the form of reapplication.
[18]
Reinstatement is, in my view, limited to matters removed from or
struck off the court roll in so far as such matters are pending
before the court and only have to be reinstated on the roll for
purposes of being heard and finalised….
[20]
In my
judgement the option available to the applicant in the circumstances
is reinstitution of review proceedings in the same way
as the
applicant in
Ncaphayi
[1]
and
Samwu
[2]
matters…sought and were, in fact, allowed to refer withdrawn
disputes to the CCMA afresh as opposed to reinstating them.
[21]
Reinstatement is, thus, in law and equity not available to
the
applicant as a relief in the circumstances of the present matter.’
[7]
Given that no review application was
before the Court, the joinder
application was refused and with the matter unopposed, no order of
costs was made.
Grounds
of appeal
[8]
On appeal the appellant takes issue
with the judgment and order of
the Labour Court on the basis that the Court has the power in
particular circumstances to reinstate
withdrawn proceedings,
including a review application. The appellant submits that it has a
direct and substantial interest in the
outcome of the arbitration
award and the review application by virtue of the transfer of the
business to it and that it is therefore
entitled to persist with the
review and be joined as an applicant to such application.
[9]
The employee opposes the appeal. He
accepts that the Labour Court has
the inherent power to determine its own proceedings and is entitled
to reinstate an application
previously withdrawn provided this is not
an abuse of its process. However, on the facts of this matter that
the reinstatement
application was not brought within a reasonable
period of time and the delay was unexplained. Consequently, it was
contended that
the application fell to be struck out, with the
appellant entitled to launch its own review application together with
an application
for condonation.
Evaluation
[10]
The
Constitutional Court, Supreme Court of Appeal and High Courts in
terms of s 173 of the Constitution of the Republic of South
Africa,
1996 have the inherent power to protect and regulate their own
process, and to develop the common law, taking into account
the
interests of justice.
[3]
Section
151(2) of the LRA reads as follows:
‘
The Labour Court
is a superior court that has authority, inherent powers and standing,
in relation to matters within its jurisdiction,
equal to that which a
court of a provincial division of the Supreme Court has in relation
to the matters under its jurisdiction’.
[11]
Section 158 (1) confers specific powers on the Labour Court,
including in s 158(1)(
j
) the power to ‘…deal with
all matters necessary or incidental to performing its functions
in terms of [the LRA]
or any other law’. Matters necessary or
incidental to performance of its functions include matters related to
the enrolment
and removal of matters from the roll, in respect of
which the Labour Court has an inherent power to control its own
process. This
means that the Labour Court has the power to reinstate
a matter withdrawn from its roll or to refuse to do so.
[12]
The
withdrawal of a matter at the instance of a party is a unilateral act
which results in the matter being removed from the roll
in the same
manner as if absolution from the instance had been granted
.
[4]
The fact
that
a matter
has been withdrawn does not in principle bar either the reinstitution
of proceedings
[5]
or the
institution of fresh proceedings (in which case the absolved
defendant may not
raise the
defence of
res
judicata
if
sued again
on the same
cause of action).
[6]
In finding
differently, the Labour Court erred. Faced with an application to
have the matter reinstated, it was for a court to
determine whether
or not to grant such application having regard to the relevant facts
and issues of prejudice,7
[7]
while
recognising that employment disputes by their nature are urgent and
require speedy resolution.
[8]
[13]
The review application was instituted on behalf of Ellies
by its
attorneys, Webber Wentzel. After the transfer of the commercial
division to the appellant, the same attorneys filed the
supplementary
affidavit, the replying affidavit and heads of argument in the review
application. Apparently on the instruction
of the business rescue
practitioner, Webber Wentzel then withdrew the review application on
14 March 2017. And, almost two years
after the transfer of
the commercial division to the appellant, Webber Wentzel acted
for the appellant in its application
to reinstate the review and be
joined as a co-applicant.
[14]
Mr Wayne Samson, the Chief Executive Officer of Ellies Holdings
Ltd
and a director of the appellant, confirmed in the founding affidavit
in the application to reinstate the review that the appellant
became
bound by the arbitration award in terms of s 197(5)(
b
) of the
LRA following the transfer of the division to it. He did not explain
on whose instructions pleadings and heads of argument
were filed in
the review application. He was silent on why the appellant for more
than two years did not seek to be joined as a
co-applicant in the
review application. He failed to state when the appellant became
aware of the withdrawal of the review or the
reasons for the delay in
seeking the reinstatement of the review.
[15]
What is clear from the facts is that the division was transferred
between related entities owned by one holding company. The appellant
knew itself to be bound by the arbitration award as a result
of the
sale. Yet despite this, it took no steps to be joined as an applicant
to the review application. And, although the appellant
knew itself to
be bound by the award, it is noteworthy that it was silent as to
whether Webber Wentzel acted on its behalf in filing
pleadings and
heads of argument in the review application and if not, why Ellies
would have instructed that such steps when it
was the appellant that
was bound by the award. The appellant also fails to explain how it
was that the review application was withdrawn
by Webber Wentzel,
apparently acting on the instruction of the business rescue
practitioner; and why it remained silent and took
no action when this
occurred. In adopting the stance that it did without explanation, yet
with the express knowledge that it was
liable for payment of the
quantum awarded, the only reasonable conclusion to be drawn is that
the appellant opportunistically sought
to benefit from the withdrawal
of the review application, assuming the award would be incapable of
enforcement against it. And,
it was only after Mr Memmo sought to
enforce the award that the appellant was spurred into action,
launching the reinstatement
application without a full disclosure of
the relevant facts and with no reasons put up to explain either the
delay in doing so.
[16]
The result was that the reasons advanced by the appellant
for the
reinstatement of the review application were neither clear nor
compelling. Instead, what the facts show is a deliberate
attempt on
the part of the appellant to avoid the consequences of an award by
which it knew itself bound. This conduct is not only
opportunistic
and prejudicial, but it flies in the face of the legislative scheme
[17]
For these reasons, the appeal cannot succeed and there is no
reason, having regard to considerations of law and
equity , that cost
should not follow the result.
Order
[18]
The following order is therefore made:
The
appeal is dismissed with costs.
Savage
AJA
Phatshoane
ADJP and Davis JA agree.
APPEARANCES:
FOR
THE APPELLANT: L
Hollander
Shepstone & Wylie
Attorneys
FOR
THE THIRD RESPONDENT: J
Crouse
Instructed by Reynders
Attorneys
[1]
Ncaphayi
v Commission for Conciliation, Mediation and
Arbitration & others
(‘
Ncaphayi’
)
(2011) 32
ILJ
402
(LC) at paras 27 and 28.
[2]
SA
Municipal Workers Union & others v Commission for Conciliation
Mediation and Arbitration & another
(2014)
35
ILJ
2011
(LC).
[3]
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
2013
(5) SA 89
(CC)
at para 42
;
Windybrow Theatre v Maphela & others
[2016]
ZALAC 27
; (2016) 37 (ILJ) 2641 (LAC) at paras 14-16.
[4]
Kaplan
v Dunell Ebden and Co
1924
EDL 91
at
93. This decision was cited with approval in
Wildlife
and Environmental Society of South Africa v MEC for Economic
Affairs, Environment and Tourism, Eastern Cape, and others
2005
(6) SA 123
(E)
at 127I-128C
[5]
See
Robor
Tube (Pty) Ltd v Metal Engineering Industries Bargaining Council &
others
[2018]
ZALCJHB 229; (2018) 39 ILJ 2332 (LC) at paras 7 and 8;
Ncaphayi
v Commission for Conciliation, Mediation and Arbitration &
others
(Op
cit).
[6]
At para 27.
[7]
Samwu
at
para 16;
Kgobokoe
v Commission for Conciliation Mediation and Arbitration & others
(2012)
33
ILJ
235
(LC);
Roupell
v Metal Art (Pty) Ltd
1972
(4) SA 300 (W).
[8]
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
[2016]
ZACC
49;
2018
(1) SA 38
(CC);
2017
(4) BCLR 473
(CC) at para 33;
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007]
ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28
ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at para 44.