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2024
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[2024] ZALCJHB 194
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Kasirye Imaging (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR914/19) [2024] ZALCJHB 194 (23 April 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: JR 914/19
In
the matter between:
KASIRYE
IMAGING (PTY) LTD
Applicant
and
COMMISSON
FOR CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
V.E
MOYO
N.O
Second Respondent
MOSODI
JOHANNES PUTUKA Third
Respondent
Heard:
6 March 2024
Delivered:
23 April 2024
JUDGMENT
NAIDOO,
AJ
Introduction
[1]
The applicant seeks to review and set aside an award, dated 1 April
2019. In terms of the award, the second respondent
found that the
third respondent’s dismissal was substantively and procedurally
unfair and awarded him 10 months compensation,
equating to R320
000.00.
[2]
The applicant operates a radiology department out of an emergency
hospital. Its operations run on a 24-hour basis and
mainly attend to
patients involved in motor vehicle collisions.
[3]
The third respondent was employed by the applicant as a radiographer
and was scheduled to work from 31 December 2018 to
4 January 2019.
The third respondent did not attend work during this period and was
subsequently dismissed.
[4]
Having received an adverse arbitration award, the applicant, on 13
May 2019, filed its review application and on 1 August
2019, served
the third respondent the record, together with its supplementary
affidavit. Important to this matter is the fact that
the applicant
served the two affidavits as well as the record, on the third
respondent, by way of emails. The applicant’s
representative
has put up a service affidavit and has attached the emails in
question, together with a delivery receipt.
[5]
On 19 September 2019, the applicant’s representative indexed
and paginated the court file and the review application
was set down
on the unopposed roll for 21 July 2020.
[6]
On 16 July 2020, the third respondent’s attorney filed a notice
of intention to oppose the review application.
[7]
On 20 July 2020, the third respondent brought an application seeking
to remove the review application from the unopposed
roll and place it
on the opposed roll and to direct the applicant to file the record
and its supplementary affidavit, within 10
days of the order being
granted.
[8]
In his founding affidavit to the removal application, the third
respondent submits that while he did receive the applicant’s
founding affidavit, heads of argument and practice note, he had not
received the record or the applicant’s supplementary
affidavit.
[9]
The applicant filed its answering affidavit in respect of the removal
application on the same day, whereafter the third
respondent filed
his replying affidavit on 21 July 2020.
[10]
On 21 July 2020, the unopposed review application, as well as the
third respondent’s removal application, came
before Patel AJ,
who, in terms of an order dated 27 August 2020, held that:
‘
1. The
matter is removed from the unopposed roll and placed on the opposed
roll.
2. The issue the
Applicant raises in respect of the Third Respondent’s filings
of the pleadings shall be dealt with
in their response to the Third
Respondent’s answering affidavit.’
[11]
The applicant has, subsequent to Patel AJ’s order, requested
that its review application be enrolled on two different
occasions.
[12]
There is no dispute that the third respondent did receive the notice
of set down in respect of the hearing on 6 March
2024, as well as the
notice informing the parties of the change of venue. These notices
have all been sent to him, by this Court,
using the very same email
address the applicant used when serving the record and supplementary
affidavit on the third respondent.
[13]
On 6 March 2024, the review application came before this Court.
Initially, neither the third respondent nor his representative
attended the proceedings which prompted me to continue to hear the
application in default. Mr Berry, a member of Guardian Employers
Organisation, represented the applicant and had just completed
arguing the applicant’s second ground on review when Mr Baloyi
presented himself in court and entered the third respondent’s
opposition to the review application being heard.
[14]
Mr Baloyi placed the very same removal application brought by the
third respondent before Patel AJ and advised me that
to date, the
third respondent had not yet received the record or the applicant’s
supplementary affidavit and thus the matter
was not ripe for hearing.
[15]
Mr Baloyi confirmed that he was not seeking a postponement, but
rather ‘direction’ from this Court by way
of directing
the applicant to file the record and supplementary affidavit on a
certain date and the third respondent to file his
answering affidavit
by a certain date.
[16]
I adjourned proceedings and issued the following directive:
‘
1.
Parties are directed to reduce their respective arguments (including
the respective relief sought today), as presented
at Court on 6 March
2024; to writing and where necessary to attach documents relied upon,
other than those documents submitted
to Court on even date.
2. Parties are
further directed to address this Court in respect of
all three
of the following:
2.1. Does the Court
have the authority to dismiss the third respondent’s opposition
to the review application, for lack
of diligently pursuing same?
2.2. Can the Court
mero motu
raise and rely on the aforementioned authority? and
2.3. Under the
circumstances of this case, in particular from the period immediately
leading up to the hearing of this matter
in July 2020, to date
hereof; why should this Court not dismiss the third respondent’s
opposition for failing to diligently
pursue same?’
[17]
This Court thanks both Mr Baloyi and Mr Berry for timeously
delivering their respective submissions.
Evaluation
[18]
Prior to addressing the queries recorded in the directive, it appears
that much of the third respondent’s submissions
related to the
fact that he, to date, had not received the record or the applicant’s
supplementary affidavit. Accordingly,
the review application ought
not to proceed.
[19]
Mr Baloyi referred to
various authorities as to why the applicant’s service affidavit
was not in accordance with the Practice
Manual
[1]
and other authorities which speak to the fact that when there is no
service, or proper service of a record and/or supplementary
affidavit; the need for a respondent to file an answering affidavit
does not arise.
[20]
The issues which Mr Baloyi raised were or ought to have been
addressed in the removal application before Patel AJ. Once
Patel AJ
made an order, this Court had no authority to revisit the very same
issue. Stated otherwise, the issue of the third respondent
not
receiving the record or the applicant’s supplementary
affidavit, was the sole reason why the third respondent brought
the
removal application and requested, as per his notice of motion, that
the application be directed to serve on the third respondent
the
record and supplementary affidavit, within 10 days of the order being
granted.
[21]
Before me, Mr Baloyi couched his argument as a request for this Court
to give direction by determining a date for the
applicant to serve
the third respondent with the outstanding record and affidavit, which
as mentioned, falls squarely within what
the third respondent sought
in his notice of motion to the removal application which served
before Patel AJ.
[22]
To
the extent, the third respondent sought clarity in respect of Patel
AJ’s order or took the view that the order did not
address or
adequately address his prayers; it was always open for the third
respondent to have, on application, applied to vary
Patel AJ’s
order in terms of s165(b) of the Labour Relations Act
[2]
(LRA), alternatively Rule 16A of this Court’s Rules
[3]
.
What the third respondent cannot do, is to rely on the removal
application before Patel AJ, to persuade this Court to grant the
very
same order which served before Patel AJ and which Patel AJ dealt
with.
[23]
Mr Baloyi placed much emphasis on the argument that the Registrar,
when setting down the matter for 6 March 2024, did
so on the
unopposed roll, which was in conflict with Patel AJ’s order. I
do not understand what the legal consequence to
this argument is. The
applicant’s two requests for the matter to be enrolled was made
at a time when the third respondent
had only filed a notice to oppose
the review application without filing any opposing affidavit.
[24]
Having made this point and in the absence of Mr Baloyi seeking a
postponement, nothing prevents this Court from hearing
the review
application on an unopposed basis.
[25]
Assuming this approach is incorrect, the consequence pursuant to this
approach is nevertheless the same when addressing
the queries
recorded in the directive.
[26]
It is trite that this
Court has the inherent power to dismiss a review application on
account of the applicant’s undue delay
in furthering same.
[4]
[27]
In
Ferreira
v Tyre Manufacturers Bargaining Council & others
[5]
the
Court stated that:
‘…
this court's power to
dismiss referrals and applications for lack of diligence on the part
of applicants in pursuing their matters
is not derived from the rules
of court, as such. Rule 11 is merely a convenient procedural vehicle
for bringing an application
before court for consideration. The power
to dismiss matters is a power that the court exercises in the course
of exercising its
own inherent powers as a High Court.’
[28]
I see no reason why this principle should not likewise apply to a
respondent, on account of their inaction in opposing
a review
application.
[29]
This is more so, when one has regard to a primary purpose of the LRA,
as recorded in s1(d)(iv). I cannot see why this
Court, under
appropriate circumstances, cannot raise the issue of a respondent’s
inaction with the possibility of their defence
being dismissed and
request parties to address the court on this very issue. I venture to
say that under certain circumstances,
it would be remiss of this
Court not to
mero motu
raise this very issue.
[30]
It is clear that the LRA
places a high premium on the speedy resolution of labour disputes,
and in particular, a review application,
which by its nature is
urgent.
[6]
[31]
On the facts before the Court, it is clear that the third respondent
has done absolutely nothing to oppose the review
application from 21
July 2020 to 6 March 2024. For a period of nearly 4 years, the third
respondent, in an attempt to obtain the
record and applicant’s
supplementary affidavit, has not sought to vary Patel AJ’s
order, not contacted the applicant’s
representative seeking the
record or supplementary affidavit post Patel AJ’s order and
perhaps more practically, not retrieved
the record and supplementary
affidavit from the court file.
[32]
Instead of pursuing any one of the pragmatic approaches listed, the
third respondent comes to court on 21 July 2020,
complains that he
did not receive the record and supplementary affidavit, successfully
makes an application to remove the matter
from the roll and then does
nothing for nearly 4 years, just to come to court on 6 March 2024 and
request, what in essence, is
the very same outcome as what was
recorded in his removal application in 2020.
[33]
The third respondent’s conduct flies in the face of s1(d)(v)
and understandably is prejudicial to the applicant,
as stated by Mr
Berry.
[34]
On the issue of service of the record and supplementary affidavit, Mr
Baloyi stated that it is not the third respondent’s
case that
the applicant did not serve the aforementioned documents on him,
rather the third respondent did not receive same. It
is however
intriguing how the third respondent received all other documents both
from the applicant and this Court when using the
very same email
address, but, for reasons which cannot be explained, did not receive
the record and supplementary affidavit.
[35]
For reasons advanced I find that due to the third respondent’s
tardy and dilatory conduct and inaction, which he
was the sole author
of, his opposition to the review application,
as per
his
notice of intention to oppose the review application; stands to be
dismissed and the review application ought to be considered
on an
unopposed basis.
[36]
Returning to the applicant’s review application, as earlier
stated the applicant had begun its argument prior to
Mr Baloyi
entering. The applicant’s first ground on review is capable of
disposing of this matter and hence little purpose
would be served if
this matter was to be re-enrolled on the unopposed roll.
[37]
The applicant’s first ground on review was that the second
respondent refused to accept the applicant’s bundle
of
documents at arbitration due to the fact that the bundle intended to
be use, was not indexed and paginated.
[38]
For purposes of the review application, this Court had sight of the
documents the applicant attempted to introduce at
arbitration, as
annexed to its founding affidavit to the review application and
consider these documents to be material to the
dispute that served
before the second respondent.
[39]
While it is accepted that an arbitrator has a discretion to conduct
an arbitration in a manner they deem appropriate,
such discretion
cannot extend to instances, as is in this case, where a party’s
right to a fair hearing is unduly infringed.
The consequence of the
second respondent’s approach was that the applicant was not
afforded a proper opportunity to be heard
and hence the second
respondent committed a reviewable act.
[40]
This Court sitting as a review court, is not in
a position to examine the applicant’s documents in order to
determine whether
the third respondent’s dismissal was fair or
not. It would be for an arbitrator to consider when deciding the
fairness of
the third respondent’s dismissal. For this reason,
the matter ought to be remitted to the first respondent. Having made
this
finding, it is not necessary for the Court to consider the
applicant’s remaining grounds on review.
Order
1. The applicant’s
review application is heard on an unopposed basis.
2. The second
respondent’s award is reviewed and set aside.
3. The third
respondent’s dispute is remitted to the first respondent to be
considered
de novo
before an arbitrator, other than the second
respondent.
4. There is no
order as to costs.
M.
Naidoo
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr Berry official from GEO
Instructed
by:
For
the Respondent: Mr Baloyi
of MM Baloyi Attorneys
Instructed
by:
[1]
Practice Manual of the Labour Court of South Africa, effective 1
April 2013.
[2]
Act
66 of 1995, as amended.
[3]
GN 1665 of 14 October 1996: Rules for the conduct of proceedings in
the Labour Court.
[4]
See
Solidarity
& others v Eskom Holdings Ltd
(2008)
29 ILJ 1450 (LAC);
[2008] JOL 21489
(LAC) at paras 38 to 39.
[5]
(2013)
34 ILJ 364 (LC); [2012] ZALCPE 8 at para 13.
[6]
The
Court in
Inxuba
Yethemba Local Municipality v Msweli & others
(2024)
45 ILJ 548 (LC); [2023] ZALCPE 23 at para 12 stated: “
This
court has accepted that a review application is by its nature an
urgent application and that it requires prosecution with
diligence
and urgency”.