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2024
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[2024] ZALCJHB 74
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Ramagoshi v Department of Home Affairs and Others (JR2328-21.) [2024] ZALCJHB 74 (12 February 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG
Not
Reportable
Case
No: JR2328/21
In
the matter between:
MANARE
MARTIN RAMAGOSHI
Applicant
and
DEPARTMENT
OF HOME AFFAIRS
First Respondent
GENERAL
PUBLIC SERVICE SECTOR BARGAINING COUNCIL Second
Respondent
COMMISSIONER
TEGOGO SONO N.O.
Third Respondent
Heard:
10 January 2024
Delivered:
12 February 2024
Summary:
Review application –– time limit in terms of
section 145(1) considered –– review application
out of
time with no condonation application –– Court has no
jurisdiction to entertain review application ––
Record
not filed within 60 days and no condonation application filed. Review
application deemed to be withdrawn.
JUDGMENT
VENTER
AJ
Introduction
[1]
The Applicant seeks to review and set aside an arbitration award
issued by the Third Respondent (commissioner) on 03 August
2021 under
the auspices of the Second Respondent, the General Public Service
Sector Bargaining Council. In his award, the commissioner
found that
the Applicant was fairly dismissed.
[2]
The First Respondent opposed the review and raised the objection that
the review was filed late, and condonation was not
sought in the
pleadings nor addressed after the failure to apply for condonation
was raised.
[3]
The First Respondent also submitted that the matter was deemed
withdrawn due to the record being filed late.
[4]
The Applicant submitted that the Respondent’s notice of
intention to oppose and answering affidavit were filed late.
Condonation
[5]
A review application can only be considered properly brought once it
was both served on the respondent parties and filed
in Court.
[6]
The time
limit of six weeks, as contemplated by section 145(1) of the Labour
Relations Act
[1]
(LRA), applies
from when the Applicant received the award. It does not appear to be
in dispute that the award was served on the
parties on the date of
the award, 03 August 2021. The six-week time limit is calculated
based on the civil method of calculation,
which includes the first
day, excludes the last day, and includes weekends and public
holidays. Applying this calculation method,
the review application
should have been submitted on or before 15 September 2021.
[7]
It is unclear when the review was served on the Labour Court as it
does not have the usual Labour Court stamp. The notice
of motion and
founding affidavit is dated 24 October 2021. The Labour Court
received the application for a case number on 29 October
2021.
Therefore, the review application could only have been filed on or
after that date. It is not accompanied by a condonation
application
and is therefore not properly before this Court.
[8]
From the Bar, the Applicant submitted that condonation was not
required as the review application was filed on 28 September
2021,
which is not the case.
[9]
It was the contention of Counsel for the First Respondent that the
condonation application was filed on 03 December 2021
and served on
the First Respondent on 09 December 2021. This submission is more
probable, although the pleadings and the documents
in the Court file
are silent on this.
[10]
In correspondence from the First Respondent to the Applicant dated 24
November 2022, the First Respondent raised two
preliminary issues
with the Applicant:
10.1. That the
review application was referred outside the prescribed time period of
six weeks and is therefore not properly
before this Court; and
10.2.
In terms of
Clause 11.2.3 of the Labour Court Practice Manual
[2]
,
a record of the arbitration proceedings must be filed within 60 days;
failing to do so, the review application is deemed withdrawn.
[11]
Despite this correspondence, the Applicant did not take heed.
Instead, the Applicant’s Counsel took issue that
these
preliminary matters were only raised after the pleadings closed.
[12]
Where a review is filed late, this Court requires a condonation
application to be considered and granted before the review
can be
heard.
[13]
A
condonation application must be brought on motion and supported by an
affidavit. The requirements that must be addressed by an
applicant in
the supporting affidavit for condonation are trite. These
requirements are the length of the delay, the explanation
for the
delay, the importance of the case (prejudice) and the prospects of
success.
[3]
These requirements
are interrelated and must be holistically considered, with the
proviso that the prospects of success may become
irrelevant if there
is no explanation for the delay.
[14]
In dealing
with an application for condonation, specifically when it came to the
late filing of a review application, the Labour
Appeal Court (LAC) in
A
Hardrodt (SA) (Pty) Ltd v Behardien and Others
[4]
referred with approval to the judgment in
Queenstown
Fuel Distributors CC v Labuschagne NO and others
[5]
and said:
‘
The
principles laid down in that case included, firstly, that there must
be good cause for condonation in the sense that the reasons
tendered
for the delay had to be convincing. In other words, the excuse for
non-compliance with the six-week time period had to
be compelling.
Secondly, the court held that the prospects of success of the
appellant in the proceedings would need to be strong.
The court
qualified this by stipulating that the exclusion of the appellant's
case had to be very serious, ie of the kind that
resulted in a
miscarriage of justice.’
[15]
The general principles applicable to deciding applications for
condonation
apply even more stringently when it comes to review
applications.
[16]
The first
difficulty the applicant has is that she did not make a proper
application for condonation in the first place. The notice
of motion
does not contain a prayer in which she asks for condonation to be
granted. The Respondents are thus not alerted in the
notice of motion
to the fact that the applicant would be seeking condonation and that
the Respondents would be entitled to oppose
such relief, which is
required by Rule 7 of the Labour Court Rules
[6]
,
in terms of which any application for condonation must be brought. In
the absence of this, it would not be proper for this Court
to decide
the issue of condonation.
[17]
In
Booysen
Bore Drilling (Pty) Ltd v National Union of Mineworkers and Others
[7]
the
Court said:
‘
Insofar
as the application for condonation is concerned, this could only be
entertained by the Labour Court on notice to the appellant.
The
notice was necessary in the light of the wording of the application
for condonation and the failure by the respondents to comply
with
rule 7(e) of the rules that regulate proceedings in the Labour Court
or to call upon the appellants to file their opposition,
if any, to
the application within a given time …’
[18]
Counsel for
the Applicant persisted that the review application was not filed out
of time despite the apparent dates on their own
application for a
court date, notice of motion and answering affidavit. She lamented
that the First Respondent only raised the
preliminary issue after
pleadings had closed. This complaint, although unwarranted as it is
incumbent on the Applicant to ensure
compliance with the six-week
timeframe and condonation requirements, does not cure the lateness of
the review application. No explanation
for any late filing was
offered, nor was the prejudice addressed, and therefore attending to
the prospects of success is unnecessary.
[8]
[19]
In conclusion, the Applicant’s review application has been
brought out of time without a proper application for
condonation.
Late
filing of record
[20]
The Second Respondent dispatched the record on 11 March 2022. The
Applicant served and filed the transcript of the record
on 09 June
2022.
[21]
The Practice Manual clauses 11:2.2 and 3 read:
‘
11.2.2.
For purposes of Rule7A(6), records must be filed within 60 days of
the date on which the applicant is advised by the
registrar that the
record has been received.
11.2.3.
If the applicant fails to file a record within the prescribed period,
the applicant will be deemed to have withdrawn the
application,
unless the applicant has during that period requested the
respondent’s consent for an extension of time and
consent has
been given.’
[22]
The Applicant filed the record late. No condonation application was
submitted for this late submission, and the First
Respondent did not
consent to the late filing.
[23]
The Practice Manual provides that the review application is deemed
withdrawn if the record is filed outside the 60 days.
Late
filing of the notice to oppose and answering affidavit
[24]
As the application is deemed withdrawn and is fatally flawed in the
absence of a condonation application for the late
filing of the
review, it is not necessary to address the late filing of the notice
to oppose and answering affidavit.
Costs
[25]
Although the review application was doomed from the start, it is not
a matter where a cost order is appropriate. This
case reflects a
tardy approach to litigation from both parties. All pleadings were
filed late and did not address the preliminary
issues raised before
the Court.
Order
1. The Court does
not have jurisdiction to entertain the review application, and the
application is struck from the roll.
2. The review
application is, in any event, deemed to have been withdrawn.
3. There is no
order as to costs.
T
Venter
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Ms Angelinah Boshego of Boshego Attorneys
On
behalf of the Respondent: Ms Mercy Mashiane
Instructed
by:
the State Attorney
[1]
Act
66 of 1995, as amended.
[2]
Practice
Manual of the Labour Court of South Africa, effective 2 April 2013.
[3]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532C-E.
[4]
(2002) 23 ILJ 1229 (LAC) at para 4.
[5]
(2000) 21 ILJ 166 (LAC).
[6]
GN
1665 of 1996 Rules for the Conduct of Proceedings in the Labour
Court.
[7]
(2011) 32 ILJ 2075 (LAC) at para 13.
[8]
NUM v
Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) at para 10.