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2024
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[2024] ZALCJHB 124
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Nkosi v South African Local Government Bargaining Council and Others (JR1463/2021) [2024] ZALCJHB 124 (27 February 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1463/2021
In
the matter between:
LUCKY
NKOSI Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING
COUNCIL
First
Respondent
COMMISSIONER
AMOS MATHINYANE
N.O.
Second Respondent
JOHANNESBURG
METROPOLITAN MUNICIPALITY
Third Respondent
ROGER
GAHNES
Fourth Respondent
Heard:
27 February 2024
Delivered:
27 February 2024
EX
TEMPORE
JUDGMENT
PHEHANE,
J
[1]
The
applicant brings a review application in terms of section 145 of the
Labour Relations Act
[1]
(LRA) to
review and set aside an arbitration award by the second respondent
dated 20 October 2020 and received by him on 22 October
2020.
[2]
The second respondent issued a jurisdictional ruling dated 20
October 2020, in terms of which he ruled that the bargaining
council
lacks jurisdiction to determine the applicant’s claim as it was
launched out of time.
[2]
It is
unclear when the review application was delivered to this Court, as
the notice of motion bears no Court stamp. The Rules of
this Court
[3]
define the word ‘deliver’ as meaning to serve on other
parties and to file with the Registrar. Rule 5 provides for
the
manner in which documents may be filed with the Registrar.
[3]
The review
application was delivered to the respondents on 21 July 2021. Were
the applicant to be given the benefit of doubt that
this review
application was delivered to the Registrar at approximately the same
time as it was delivered to the other parties,
the review application
is in any event, delivered well beyond the statutorily prescribed
period of 6 weeks.
[4]
[4]
On 7 October 2021, the applicant delivered an application for
condonation for the late filing of his review application.
[5]
The review application and condonation application are opposed by the
third respondent.
Condonation
application for the late filing of the review application.
[6]
The reasons
proffered by the applicant for the late delivery of the review
application is due to him making attempts to obtain the
record of the
arbitration proceedings from the bargaining council and upon
receiving such record, he “
used
great time and effort going through the transcripts to ensure the
correctness thereof before making the Review Application
in this
Honourable Court as the Applicant believes that he has a strong and
winnable case
”.
[5]
[7]
In summary,
the reasons for the delay is that the applicant went back-and-forth
with the transcribers to have the record transcribed
- he had no
funds to pay the transcribers and this delayed in him obtaining the
transcript. Further delays were caused by mistakes
in the
transcription. The applicant does not state with any measure of
clarity when the record was filed as contemplated in rule
7A(6) read
with items 11.2.2 and 11.2.3 of the Practice Manual.
[6]
No notice in terms of rule 7A(6) has been filed by the applicant.
This is conceded by Mr. Jason Govender for the applicant. This
is the
basis of the preliminary point that the third respondent raises in
its answering affidavit and accordingly contends that
the review
application is deemed withdrawn.
[8]
In my view,
the reasons for the delay as proffered by the applicant are unsound.
The applicant is legally represented and was legally
represented when
this application was launched. In the circumstances, the applicant
ought to have been aware of the timeframe within
which to launch this
application as well as the timeframe within which to file the record
as contemplated in rule 7A(6) read with
item 11.2.2 and 11.2.3 of the
Practice Manual. The ineptitude of the applicant’s attorney of
record in failing to launch
the application timeously and in failing
to have regard to the provisions of section 145(1) of the LRA and the
provisions of applicable
rules and Practice Manual does not
constitute a sound reason for the delay.
[7]
Application
for leave to file a supplementary affidavit
[9]
Approximately 2 years and 4 months later, and after the pleadings in
the condonation application had closed and after
this matter was
enrolled for hearing, the applicant’s attorney of record
delivered an application on 15 February 2024 for
leave to file the
supplementary affidavit. The supplementary affidavit sets out
averments that the Covid-19 pandemic prohibited
the applicant from
filing his review application timely. It is averred for the first
time, that the review application was delivered
on 22 July 2021
together with
the record. What the applicant falls short of,
is providing an explanation why his supplementary affidavit is filed
more than two
years after his founding affidavit was delivered, as
the facts he now wishes to put forward after much time has passed,
are facts
that were known to the applicant when he filed his
condonation application in October 2021. It is trite that an
applicant
is to make out his case in his founding papers. The
applicant failed to set out these facts in his founding affidavit. No
explanation
is provided why it took more two years to supplement his
founding papers. Worse still, being legally represented, there is no
explanation
in the founding affidavit why the condonation application
was not launched together with the review application on 22 July
2021.
In a condonation application, it is trite that every period of
delay must be explained.
[10]
The third respondent contends that it has been denied the opportunity
to oppose the application for leave to file a supplementary
affidavit. I mention that this supplementary affidavit is not one as
contemplated in rule 7A(8)(a), as a notice in terms of rule
7A(8)(b)
was filed on 16 November 2021. There is no explanation by the
deponent to the supplementary affidavit, being the applicant’s
attorney of record why the supplementary affidavit is filed more than
two years later. It would have been prudent for the applicant’s
attorney of record to simply file a confirmatory affidavit to the
founding affidavit in the condonation application explaining
the
delay. Launching a separate application to admit a supplementary
affidavit to bolster a condonation application that was filed
two
years prior is an abuse of Court process.
[11]
For the afore-going reasons, the application for leave to file
the supplementary affidavit cannot succeed.
[12]
The applicant’s prospects of success in the review application
are slim. He avers in his grounds of review that
the preliminary
point on jurisdiction as raised in the proceedings before the first
and second respondent “
cannot be raised after the applicant
has closed his case.”
From the transcribed record filed
-although incomplete as the record of the date to which the
proceedings were postponed has not
been filed - it transpires that
the preliminary point on jurisdiction was raised at the start of the
proceedings. The second respondent
heard evidence on when the dispute
arose and found that it arose in 2015 and the applicant launched his
unfair labour practice
dispute to the bargaining council out of time.
In the circumstances, the merits of the review application are slim.
[13]
I have
already stated that the reasons proffered for the delay are unsound.
In the premises, there is no need to consider the prospects
of
success.
[8]
I have considered
them in the interest of justice and find them to be slim. The
prejudice to the third respondent far outweighs
that of the
applicant, given the time that the applicant took to launch this
application. It is worth mentioning that the applicant’s
attorney of record informed the third respondent by way of letter
dated 12 November 2020 that the applicant intended to file a
review
application in terms of section 145 of the LRA, however, the
application was launched in July 2021 due to failure to comply
with
the rules and Practice Manual.
Costs
[14]
A review
application is an urgent application.
[9]
In
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others
[10]
the Constitutional Court stated that when determining the
reasonableness of the delay, regard must be had to the purpose of the
LRA regarding the expeditious resolution of disputes. It has been
overstated that the rules and provisions of the Practice Manual
are
binding on litigants and practitioners.
[11]
[15]
The
attorney of record of the applicant has blatantly failed to comply
with the provisions of section 145(1) of the LRA in an attempt
to
obtain the transcribed record, when this is not the procedure as set
out in rule 7A. On the applicant’s own admission,
the record
was received on 12 November 2020 but was only delivered it would
seem, on 22 July 2021. However, no notice in terms
of rule 7A(2), (3)
or (6) has been delivered. The record is not one from the bargaining
council, but that of the applicant. It
is not for the applicant to
file a record outside the rules.
[12]
[16]
The review application ought to have been filed before attempts to
obtain the record were made. This is what the procedure
in rule 7A
provides. The applicant has chosen to file the review application in
accordance with his own rules and to file the record
simultaneously
with his application. This is an applicant who has no regard for the
rules of this Court.
[17]
As stated above, the applicant is legally represented. I see no
reason why the applicant’s legal representatives
should not be
ordered to pay the costs of the review application, condonation
application and application for leave to file a supplementary
affidavit,
de bonis propriis.
The applicants’ legal
representative was afforded the opportunity to make representations
to the Court as to why costs
de bonis proprriis
should not be
made, particularly as it became evident as the proceedings
progressed, that the legal representatives of the applicant
appear to
be oblivious as to the provisions of rule 7A. The reasons provided
are that the attorney of record of the applicant filed
a
supplementary affidavit setting out reasons why it was unable to
comply with the rules in respect of review applications.
[18]
In view of the afore-going, the following order is made:
Order
1.
Condonation for the late filing of the review application is refused.
2.
The review application is struck off the roll.
3.
The application for leave to file a supplementary affidavit is
dismissed.
4.
The applicant’s attorney of record, Smith van der Watt Inc. is
to pay the costs
de bonis propriis
.
M.
T. M. Phehane
Judge
of the Labour Court of South Africa
[1]
Act 66 of 1995, as amended. See also: notice of motion on p 1.
[2]
See: para 2.2 of the founding affidavit in the condonation
application at p 514.
[3]
Rules
for the Conduct of Proceedings in the Labour Court as promulgated by
GN 1665 in GG17495 of 14 October 1996.
[4]
Section 145 (1)(a) of the LRA provides that a review application
ought to be launched within six weeks of the date that the
arbitration award was served on the applicant. Section 145(1A) of
the LRA provides that this Court may on good cause shown, condone
the late filing of a review application. It is now trite that the
time frame within which to launch a review application is 6
weeks be
it a review application or a ruling. I state this noting that the
applicant in any event, does not bring this application
in terms of
section 158 of the LRA.
[5]
Founding affidavit, condonation application, at para 13.1 on p 519.
[6]
Effective 2 April 2013.
[7]
See:
Salojee
and Another NNO v Minister of Community Development
1965 (2) SA 135 (A).
[8]
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531 (A).
[9]
See: item 11.2.7 of the Practice Manual, 2013.
[10]
(2016) 37 ILJ 313 (CC).
[11]
See:
Macsteel
Trading Wadeville v van der Merwe N.O. and Others
(2019) 40 ILJ 798 (LAC). See also:
Samuels
v Old Mutual Bank
[2017] ZALAC 10
(25 January 2017).
[12]
See:
Solidarity
obo Du Plessis and others
[2022] JOL 55188
(LC).