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2024
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[2024] ZALCJHB 195
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Companies and Intellectual Property Commission v Commission Mavuma N.O. and Others (JR2617/22) [2024] ZALCJHB 195 (23 April 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: JR 2617/22
In
the matter between:
COMPANIES
AND INTELLECTUAL PROPERTY
COMMISSION
Applicant
and
COMMISSION
D MAVUMA N.O. First
Respondent
COMMISSON
FOR CONCILIATION, MEDIATION
AND
ARBITRATION Second
Respondent
MAHOMED
YACOOB Third
Respondent
Heard:
5 March 2024
Delivered:
23 April 2024
JUDGMENT
NAIDOO,
AJ
Introduction
[1]
The applicant seeks to review and set aside an award, dated 11
February 2020, issued by the first respondent and in favour
of the
third respondent.
[2]
The applicant has filed a condonation application, in respect of what
it perceives to be late filing of the record and
supplementary
affidavit. The period it seeks condoned is from 1 September 2020 to
26 May 2021, being the date, the applicant filed
its supplementary
affidavit.
[3]
The third respondent’s condonation application for the late
filing of his answering affidavit is also before the
Court.
Background
[4]
The applicant filed its review application on 28 February 2020,
whereafter the second respondent filed what was purported
to be the
full record, on 13 July 2020.
[5]
Material to this
application is the fact that a rule 7A(5) notice of the Labour Court
Rules
[1]
was not, nor has been
served on the parties.
[6]
On 1 September 2020, the applicant’s attorney received the
transcribed record. It became apparent that the transcribed
record
did not include the parties’ opening statements, as well as the
first witness’s cross-examination. Additionally,
the record
filed did not include the applicant’s bundle or the first
respondent’s handwritten notes.
[7]
On the same day, the
applicant’s attorney dispatched a letter to the third
respondent’s attorney, informing the latter
of the missing
portions of the record and requesting an extension of the 60-day
period as recorded in clause 11.2.3 of the Practice
Manual
[2]
.
[8]
What transpired thereafter, were numerous attempts by the applicant’s
attorney to obtain the missing portion of
the record. While such
endeavours proved successful in part, the second respondent was
called upon to set down a date for parties
to meet in an attempt to
reconstruct the missing part of the record. The set down date was 11
December 2020, however, the process
was postponed due to the first
respondent’s absence.
[9]
On 28 January 2021, the aforementioned parties met in a further
attempt to reconstruct the missing portion of the record.
It was on
this occasion that it became clear to the parties that the first
respondent’s handwritten notes, which had not
been previously
filed, were crucial to the reconstruction exercise. On 12 February
2021, that the first respondent’s handwritten
notes were
received.
[10]
On the same day, the applicant’s attorney sent a letter to the
third respondent’s attorney wherein two proposed
amendments in
respect of the first respondent’s handwritten notes, were
recorded and put to the third respondent’s
representative for
approval.
[11]
It was only on 20 April 2021, that the third respondent’s
attorney communicated his consent to the applicant’s
attorney,
whereafter the applicant filed the complete record on 23 April 2021.
[12]
On 26 May 2021, the applicant filed its supplementary affidavit. The
delay in doing so appears to be caused by a miscommunication
between
the parties’ representatives.
[13]
On 9 June 2021, the applicant filed a condonation application in
respect of the late filing of the record as well as
its supplementary
affidavit. The third respondent opted not to oppose the condonation
application and instead filed a notice to
abide by the decision of
this Court.
[14]
On 3 September 2021, the applicant’s attorney, in writing,
advised the registrar that the court file had been indexed
and
paginated and requested the matter be set down. Although the third
respondent filed a notice to oppose the review application
it appears
that no such affidavit was forthcoming prior to 3 September 2021.
[15]
On 15 December 2021, the third respondent did file his answering
affidavit which included an application to condone the
late filing of
same. The applicant filed a replying affidavit on 24 December 2021.
[16]
Both condonation applications, as well as the review application,
were set down for hearing on 5 March 2024.
Evaluation
[17]
An application to condone the late filing of a record is intrinsic to
a failure to file a record in terms of clause 11.2.2
of the Practice
Manual. The question thus arises as to whether the applicant’s
review application is deemed withdrawn as
a consequence of the
operation of clause 11.2.3 of the Practice Manual?
[18] On the above
facts, the complete record was filed on 23 April 2021.
[19]
Mr Beckenstrater, for the applicant, submitted that the 60-day period
recorded in clause 11.2.2 of the Practice Manual
is only triggered
when a complete record has been filed. In
casu
, and for
reasons advanced above, a complete record was only available on 20
April 2021 and filed on 23 April 2021. This according
to Mr
Beckenstrater meant the review application did not fall foul of
clause 11.2.2 and hence is not deemed to have been withdrawn
as per
clause 11.2.3 of the Practice Manual.
[20]
I need not address this argument. As mentioned, no rule 7A(5) notice
was issued. It is this notice, once served, which
triggers the 60-day
period in clause 11.2.2. Put differently, without the notice being
issued, the 60-day time period does not
commence whereafter the
deeming provision in clause 11.2.3 cannot operate.
[21]
In
SA
Social Security Agency v Hartley & others (2023) 44 ILJ 1334
(LC)
,
[3]
the Court held the following:
‘
[87]
However,
in casu, no rule 7A(5) notice was ever sent out by the registrar,
thus the 60-day period within which the record had to
be filed, was
not triggered.’
[22]
The rules of this Court do not stipulate a time frame in which an
applicant has to file the transcribed record, which
may well have
been the underlying reason why clauses 11.2.2 read with 11.2.3 were
introduced. Nevertheless, there was no need for
the applicant to file
a condonation application in respect of when it filed the record. I
do however accept that the late filing
of the applicant’s
supplementary affidavit is addressed in its condonation application.
[23]
Does clause 11.2.7 of the Practice Manual nevertheless find
application to the facts in
casu
? The consequence of which
will directly impact the Court’s jurisdiction to hear the
review application.
[24]
Being a jurisdictional point, the Court
mero motu
raised
clause 11.2.7. However, as neither party was forewarned, prior to the
hearing, that this point would be raised, the Court
issued a
directive for parties to submit written submissions to address the
Court on whether the applicant’s review application
had lapsed
pursuant to clause 11.2.7 of the Practice Manual.
[25]
The applicant duly complied with this directive, while the third
respondent unfortunately did not.
[26]
I pause to mention that it was for the first time in the applicant’s
written submissions, that the Court came alive
to the fact that the
applicant’s attorney requested the registrar to set down the
matter on 3 September 2021. Prior to this,
the Court understood that
such a request was only made after the applicant filed its replying
affidavit. For this reason, the second
enquiry recorded in the
Directive stands to fall aside.
[27]
Prior to addressing the applicant’s submissions, it is
important to reiterate the fact that the applicant’s
review
application was filed on 28 February 2020, after which the applicant
requested the Registrar to set the matter down on 3
September 2021,
that being 18 months later. Clause 11.2.7 affords an applicant 12
months from when launching a review application,
to ensure that all
affidavits, or at the very least a founding affidavit, supplementary
affidavit or a notice in terms of rule
7A(8)(b), in the case of an
unopposed review application; be filed and a request to have the
matter set down to be made, failing
which the review application
shall lapse.
Applicant’s
written submissions
[28]
The applicant firstly submits that if this Court were to grant its
condonation application, in respect of the late filing
of the record;
then the period condoned would equate to a 7-month period (i.e. 1
September 2020 to 23 April 2021). The net result
of which, according
to Mr Beckenstrater, would mean that the applicant would be in a
position to comply with clause 11.2.7. Simply
put, the review
application was launched late in February 2020 and but for the
7-month delay occasioned by the second respondent
and in respect of
the missing portions of the record; the applicant would have been in
a position to request the Registrar to set
the unopposed matter down
for hearing, sometime in February 2021, that being within the
12-month period contemplated in clause
11.2.7.
[29]
Having earlier found that there was no need to apply for condonation
when filing the record, this Court cannot grant
condonation,
following which, the applicant’s argument stands to fall. In
any event and as will become apparent further on,
the period in which
the condonation application deals with, differs from the period in
which a reinstatement application ought
to cover.
[30]
Secondly, and presumably if found that clause 11.2.7 had been
breached; the applicant submits that unlike clause 16.2
which
contemplates a formal reinstatement application, clause 11.2.7 does
not require a formal reinstatement application be made.
From this
standpoint, the applicant contends that its condonation application,
which speaks to the timing of when the record was
filed, ought to be
considered for purposes of a reinstatement application, without the
need for the applicant to formally apply
for reinstatement.
[31]
In general terms, I cannot agree with the contention that a formal
application is not required when a review application
falls short of
clause 11.2.7. The applicant seeks to divorce clause 11.2.7 from
clause 16.2 of the Practice Manuel, which respectfully,
is erroneous.
Clause 11.2.7 records the circumstances in which a review application
has lapsed while clause 16.2 speaks of the
remedial pathway a
litigant ought to embark on in order to reinstate a lapsed review
application. A litigant’s remedy, as
set out in clause 16.2, is
by way of a formal reinstatement application.
[32]
Having made this point, I do however accept that when interpreting
and applying the provisions of the Practice Manual,
this Court ought
to adopt a purposive approach and in doing so, this Court has a
discretion to deviate from a mechanical interpretation
of the
Practice Manual, so as to achieve the objectives of the Manual.
[33]
In
Adams
v National Bargaining Council for the Road Freight & Logistics
Industry & others,
[4]
on this very point, the
Labour Appeal Court held:
‘
[16]
Although
it is highly desirable for good order that rules be complied with on
their own terms, the function of the rule is the paramount
consideration and, where it can be safely found that the purpose of
the rule is achieved, it is highly undesirable to approach
the matter
in a literalist way. Mechanical thinking is anathema to our law:
cessante ratione legis cessat et ipsa lex. The objectives
of the
Labour Relations
Act
66 of 1995
i
nform
the context of interpretation and its penumbra of pragmatism. Our law
is not an ass.’
[34]
In
Macsteel Trading Wadeville v Van der
Merwe NO & others (Macsteel)
,
and speaking to this Court’s discretion when applying the
Practice Manual, the Labour Appeal Court held;
‘
[22]
The underlying objective of the Practice Manual is the promotion of
the statutory imperative of expeditious dispute resolution.
It
enforces and gives effect to the Rules of the Labour Court and the
provisions of the LRA. It is binding on the parties and the
Labour
Court.
The
Labour Court does, however, have a residual discretion to apply and
interpret the provisions of the Practice Manual, depending
on the
facts and circumstances of a particular case before the court.’
[5]
[35]
The culmination of both a
purposive interpretation as well as the Court’s discretion in
applying the provisions of the Practice
Manual were incorporated in
South
African Police Services v Coericius & Others
[6]
(Coericius),
as
referred to by the applicant.
[36]
In that matter, the first respondent was in breach of the 60-day
period in which to file the record. This prompted the
appellant to
file a rule 11 application seeking to dismiss the review application.
Although not filing an answering affidavit to
the rule 11
application, the first respondent did, in his supplementary affidavit
to the review application, record detailed reasons
in support of
condoning the late filing of the record. The Labour Court found that
the review application was deemed to have been
withdrawn and took the
view that there was no reinstatement application before it, despite
the averments by the first respondent
in his supplementary affidavit.
Criticising this mechanical approach, the Labour Appeal Court held:
‘
[12]
But a fair-minded examination of all the circumstances should have
led to an appreciation that, despite the untidiness
of the papers,
the substance of a reinstatement and condonation application was
before the court…
[13]
The policy objectives of the Practice Manual do not require a
mechanical application of its provisions. A purposive interpretation
of the Practice Manual cannot lead to such an outcome as illustrated
in this case…
[14]
In our view, the Labour Court ought to have found, on a charitable
view of the papers, that a reinstatement application
was before it
and as such, was the answer in opposition to the respondent’s
Rule 11 application.’
[7]
[37]
Returning to the facts before the Court, if the period of delay which
ought to be addressed in a reinstatement application,
was the exact
same period which the applicant’s condonation application does
address; then, on a purposive approach and in
exercising this Court’s
discretion; I would be willing to consider the applicant’s
condonation application as though
it was a reinstatement application.
Under those circumstances, it would be futile to find that the
applicant needs to make a formal
reinstatement application seeking to
condone a period of delay, whereas the very same period of delay is
explained in a condonation
application which serves before the Court
albeit
for a different purpose. This would lead to an undue
delay in bringing this matter to finality and would run contrary to
the objectives
of the Practice Manual, as stated in
Macsteel
and
Coericius
.
[38]
Unfortunately for the applicant, the period of delay which it needs
to justify in a reinstatement application, differs
from the period
its condonation application seeks to condone. The applicant’s
condonation application, as mentioned, covers
the period 1 September
2020 to 26 May 2021. The period it must justify in a reinstatement
application is from 28 February 2021
(the expiry of the 12-month
period contemplated in clause 11.2.7) to 3 September 2021 (the date
on which the applicant requested
the matter be set down).
[39]
I accept that there is an
overlap between the two periods however, material to this dispute, is
the fact that the applicant’s
condonation application does not
cover the period from 27 May 2021 to 3 September 2023, which period
must be addressed in its reinstatement
application. As stated in
Samuels
v Old Mutual Bank
[8]
,
an applicant in a reinstatement application is obliged to account for
the full period of delay.
[40]
A further reason why I feel it prudent to adopt this approach is due
to the fact that when choosing not to oppose the
applicant’s
condonation application, the third respondent could not have been
aware that the same facts, would serve in support
of a reinstatement
application. The third respondent may well seek to oppose the
applicant’s reinstatement application.
[41]
A review application which has lapsed in terms of clause 11.2.7,
suffers the same legal consequences as a review application
which is
deemed dismissed in terms of clause 11.2.3, with the same remedial
option open for applicants to pursue. In
Coericius
the LAC
held:
‘
No
good reason exists to suppose the consequences of “deemed to be
withdrawn” and “regarded as lapsed” should
bear
substantively different meanings. Both these provisions are contained
in clause 11.2. Both address related aspects of delay
in the
prosecution of a review application. Both forms of default must be
capable of remediation by an application to reinstate.’
[9]
[42]
Once the applicant’s review application lapsed, its application
seeking to condone the late filing of its supplementary
affidavit, as
well as the third respondent’s condonation application in
respect of the late filing of his answering affidavit;
are not before
this Court to consider.
[43]
In
Sol
Plaatjie Local Municipality v South African Local Government
Bargaining Council and Others
[10]
,
the Court held the following:
‘
In
casu
the
Applicant sought condonation for the late filing of a record without
an application to reinstate the review application. Condonation
for
the late filing of a record cannot be granted in respect of a
withdrawn application.’
[11]
[44]
For reasons advanced, I find that the applicant’s review
application is in breach of clause 11.2.7 of the Practice
Manual and
hence has lapsed. The applicant’s recourse would be to make a
formal application to reinstate its review application,
which if
made, ought to address the period from 28 February 2021 to 3
September 2021.
Order
1. The applicant’s
review application has lapsed.
2. There is no
order as to costs.
M
Naidoo
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr Beckenstrater from Moodie Robertson
Attorneys
For
the Respondent: Ms PR
Sogoni
Instructed
by:
Malahlela Attorneys
[1]
GN 1665 of 14 October 1996: Rules for the conduct of proceedings in
the Labour Court.
[2]
Practice Manual of the Labour Court of South Africa, effective 1
April 2013.
[3]
(2023) 44 ILJ 1334 (LC); [2023] ZALCJHB 193 at para 87.
[4]
(2020) 41 ILJ 2051 (LAC);
[2020] 9 BLLR 867
(LAC) at para 16.
[5]
(2019) 40 ILJ 798 (LAC);
[2018] ZALAC 50
at para 22.
[6]
[2023] 1 BLLR 28 (LAC); [2022] ZALAC 104.
[7]
Ibid at para 12 to 14.
[8]
(2017) 38 ILJ 1790 (LAC);
[2017] ZALAC 10
at para 17.
[9]
[2023] 1 BLLR 28
(LAC);
[2022] ZALAC 104
at para 10.
[10]
[2017]
ZALCPE 11; [2017] JOL 38065 (LC).
[11]
Ibid at para 29.