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2024
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[2024] ZALCJHB 110
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Mbatha v Motsoeneng and Others (JR701/20) [2024] ZALCJHB 110 (5 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR701/20
In
the matter between:
MTHANDENI
MBATHA
Applicant
and
COMMISSIONER
MBONGENI MOTSOENENG
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
PIONEER
FOODS PTY LTD t/a SASKO AEROTON
BAKERY
Third Respondent
Heard:
29 February 2024
Delivered:
05 March 2024 (This judgment was handed down electronically by
circulation to the parties’
legal representatives by email,
publication on the Labour Court website and release to SAFLII. The
date and time for handing-down
is deemed to be 10h00 on 05 March
2024.)
REASONS FOR ORDER
PHEHANE,
J
[1]
On 29 February 2024, I issued and order striking the application off
the
roll for lack of jurisdiction with costs to be paid by the
applicant union, Inqubelaphambili Trade Union. The reasons for
the order follow below.
[2]
This review
application is premised on a dispute that was launched by the
applicant at the Commission for Conciliation, Mediation
and
Arbitration in terms of which the applicant alleged that third
respondent committed an unfair labour practice in the ambit
of a
claim in respect of the Compensation for Occupational Injuries and
Diseases Act.
[1]
The first
respondent dismissed the applicant’s claim of an unfair labour
practice.
[3]
The
applicant brings an application in terms of section 145 of the Labour
Relations Act
[2]
(LRA) review
and set aside the arbitration award by the first respondent.
[4]
The review
application is opposed by the third respondent, who raises a
preliminary point that the review application is deemed
withdrawn for
non-compliance with item 11.2.2 read with item 11.2.3 of the Practice
Manual.
[3]
The third respondent
also contends that the review application has lapsed for
non-compliance with item 16 of the Practice Manual.
[5]
In a letter
dated 20 October 2020, the third respondent’s attorney of
record informed the applicant of its non-compliance
with items 11.2.2
and 11.2.3 of the Practice Manual, and therefore that the review
application is deemed withdrawn.
[4]
There was no response to this letter and follow up letter. The third
respondent further contends that the belated filing of the
notices in
terms of rule 7A(6) and 7A(8)(b) of the Rules of this Court
[5]
is an irregular step in the circumstances of the review application
being deemed withdrawn.
[6]
In his
replying affidavit, the applicant denies non-compliance with item
11.2.2 and 11.2.3 of the Practice Manual. The applicant
also denies
non-compliance with item 16 of the Practice Manual. It would appear
that the applicant asserts that he will file a
condonation
application for the late delivery of the notice in terms of rule
7A(6).
[6]
[7]
The notice
in terms of rule 7A(3) delivered on 19 June 2020 and 1 July 2020. In
email correspondence dated 16 July 2020,
[7]
the applicant undertook to uplift record from this Court and to
comply with the Rules of this Court. Despite this undertaking,
there has been no compliance with the Rules of this Court and the
provisions of the Practice Manual. It has been overstated that
the
Rules and the provisions of the Practice Manual are binding on
practitioners.
[8]
[8]
No condonation application has been delivered by the applicant. In
the
absence of a condonation application, there is no “live”
review application before this Court as it is deemed withdrawn
for
non-compliance with items 11.2.2 and 11.2.3 of the Practice Manual.
[9]
In the circumstances, this Court lacks jurisdiction to adjudicate the
review application.
Costs
[10]
No condonation application was filed for the late filing of the
record despite the union
undertaking to do so.
[11]
In oral submissions by Mr. Zondo for the applicant, the applicant
union blames its former
official, Mr. Thokozani Luthuli, the deponent
to the founding affidavit in the review application, for failing to
progress the
applicant’s case as well as cases of other
members. It is submitted that Mr. Luthuli was disciplined for this
conduct. Mr.
Zondo presented a number of implausible excuses ranging
from the union’s inability to obtain the content of the file
from
Mr. Luthuli in order to progress the applicant’s case, to
his own inability to launch the condonation application after he
received the applicant’s file during January 2024, as he is not
familiar with Labour Court cases and the Rules of this Court.
[12]
This is a poor excuse by the applicant union for failing to deliver a
condonation application
and for failing to comply with the Rules of
this Court. The union failed to act in the interests of its member.
[13]
In view of the afore-going, I find that an order for the payment of
costs against the applicant
union is warranted.
[14]
It is for the above reasons that the aforesaid order was made.
_______________________
M.
T. M. Phehane
Judge
of the Labour Court of South Africa
[1]
Act 130 of 1993.
[2]
Act 66 of 1995, as amended.
[3]
Effective 2 April 2013.
[4]
Annexure “RM5” to the answering affidavit on p 54.
[5]
Rules
for the Conduct of Proceedings in the Labour Court as promulgated by
GN 1665 in GG17495 of 14 October 1996.
[6]
See: p 63 of the pleadings – the paragraphs of the replying
affidavit are not properly unnumbered.
[7]
“RM4” to the answering affidavit on p 53.
[8]
See:
Samuels
v Old Mutual Bank
[2017] 7 BLLR 681
(LAC).