About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 176
|
|
Bophelong Construction (Pty) Ltd v Bargaining Council for the Civil Engineering Industry and Others (J356/24) [2024] ZALCJHB 176 (2 May 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J356/24
In the matter between:
BOPHELONG
CONSTRUCTION (PTY)
LTD
Applicant
and
BARGAINING
COUNCIL FOR THE
CIVIL
ENGINEERING
INDUSTRY
First Respondent
MASENYE,
DIDA
N.O.
Second Respondent
LESIBA
MOTHAPO
Third Respondent
LAKI
SAMUEL
RADEBE
Fourth Respondent
MPHO
SIEBERT
MALATJIE
Fifth Respondent
THE
SHERIFF OF THE HIGH COURT: KEMPTON PARK
Sixth Respondent
Heard:
30 April 2024
Delivered:
2 May 2024
This
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date of hand-down
is deemed
to be 2 May 2024.
JUDGMENT
MAKHURA, J
Introduction
[1]
On 15 October 2022, the second respondent (commissioner) issued an
arbitration
award in terms of which he ordered the applicant
(company) to pay the fourth respondent (Radebe) and fifth respondent
(Malatjie)
R80 574.84 and R102 309.24 respectively. The commissioner
also ordered the company to reinstate the third respondent (Mothapo)
retrospectively from the date of his dismissal and to pay him backpay
in the amount of R154 435.11.
[2]
On 21
November 2022, the company applied to review and set aside the award
in terms of section 145 of the Labour Relations Act
[1]
(LRA). Mothapo filed a notice of opposition of the review application
on 30 November 2022.
[3]
The company took no further steps to prosecute the review
application.
Mothapo proceeded to enforce the monetary award by way
of execution process.
[4]
This prompted the company to launch the current application, on an
urgent
basis. The company seeks an order to interdict and restrain
the respondents from taking any further steps to enforce the award
“
pending the determination of the application for a review
of award to be launched by the applicant under case number JR2614/24
in
the ordinary course
”. In the alternative, the company
seeks a rule
nisi
interdicting and restraining the Bargaining
Council for the Civil Engineering Industry (BCCEI) from taking steps
to enforce the
award pending the determination of the application for
a rescission of the judgment and staying the enforcement of the award
pending
the outcome of the rescission application “
to be
launched
”.
[5]
The company’s case is that it complied with section 145 of the
LRA
in that its review application was launched timeously and that it
should not be punished for aspects that are not within its control.
By this, the company refers to its failure to prosecute the review
application by inter
alia
filing the record of proceedings.
[6]
The
application is opposed by Mothapo. He advances one primary ground of
opposition – there is no review application pending
before this
Court because it has been deemed withdrawn and/or has lapsed. He
relies on items 11.2.2, 11.2.3 and 11.2.7 of the Practice
Manual of
the Labour Court of South Africa
[2]
(Practice Manual).
Deemed
withdrawal
[7]
Item 11.2.2
of the Practice Manual provides that for the purposes of Rule 7A(6),
the record of arbitration proceedings must be filed
within 60 days of
the applicant being advised of the availability of the record. The
definition of a “day” excludes
Saturday, Sunday and
public holidays.
[3]
Item 11.2.3
provides as follows:
‘
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. If
consent is refused, the applicant may, on notice of motion supported
by affidavit, apply to the Judge President in chambers
for an
extension of time. The application must be accompanied by proof of
service on all other parties, and answering and replying
affidavits
may be filed within the time limits prescribed by Rule 7. The Judge
President will then allocate the file to a judge
for a ruling, to be
made in chambers, on any extension of time that the respondent should
be afforded to file the record.’
[8]
During the hearing, Mr Allis, appearing for the company, submitted
that
the company was notified that the record was available at the
end of December 2022. The company contends that it was only placed
in
possession of the record from the BCCEI at the end of March 2023.
[9]
On the
papers before Court, the company was informed that the record was
available before or at the end of December 2022. The company
then
alleges that between December 2022 and March 2023, it made several
attendances to the BCCEI to obtain the record, which it
eventually
did during or about March 2023.
[4]
It then complains about the quoted costs of transcription –
between R35 000.00 and R50 000.00 and that because of these high
costs, it took the company a “
great
deal of time to procure a transcriber”
.
In his oral submissions, Mr Allis said that it took the company 4 to
5 months to obtain a reasonable quotation.
[10]
The 5 months from the end of March 2023 would have expired at the end
of August 2023. No
reason is provided why the record was not filed at
that stage or shortly thereafter. Instead, the company alleges that
the record
will be filed once it is transcribed.
[11]
It is trite
law that the Practice Manual is binding on the parties.
[5]
In
MJRM
Transport Services CC v
Commission
for Conciliation, Mediation and Arbitration and others
,
[6]
Tlhotlhalemaje J held that:
‘
Clause 11.2.3 of
the Practice Manual makes it clear that if the applicant fails to
file the record of proceedings within the prescribed
period of 60
days, 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 granted.’
[7]
[12]
The 60-day period as contemplated in items 11.2.2 and 11.2.3 of the
Practice Manual commences
from the date when the applicant is
informed that the record is available for collection. In this case,
the company was informed
at the end of December 2022 that the record
has been filed and/or is ready for collection. If the 60-day period
commenced on Tuesday,
3 January 2023, the period would have expired
on 28 March 2023. The company should have followed the provisions of
the Practice
Manual, which includes seeking consent from the
respondent for an extension of the period or applying for an
extension before the
Judge President. It elected not to do so. There
is no record of proceedings filed together with an application for
condonation
and there is no application to reinstate the review
application.
[13]
In the
circumstances, the review application is deemed withdrawn and is not
before this Court. The effect of this is that the review
application
ceased to exist as an application pending before this Court and this
is not akin to a suspension or stay.
[8]
Archived
file / lapsed application
[14]
The second basis the company’s review application is no longer
before this Court
is items 11.2.7 and 16 of the Practice Manual. Item
11.2.7 states that review applications are by their nature, urgent.
It provides
further that a review applicant must ensure that all
necessary papers (record and pleadings) are filed within 12 months of
launching
a review application and that the Registrar must be
informed in writing that the application is ready to be allocated a
hearing
date. Failure to comply with this provision will result in
the review application being archived and regarded as lapsed. Once
the
file is archived and the application is regarded as having
lapsed, it can only be retrieved or reinstated upon application on
good
cause shown.
[15]
Item 16 of the Practice Manual provides:
‘
16.1. In
spite of any other provision in this manual, the Registrar will
archive a file in the following circumstances:
•
in
the case of an application in terms of Rule 7 or Rule 7A, when a
period of six months has elapsed without any steps taken by
the
applicant from the date of filing the application, or the date of the
last process filed
;
…
16.3. Where a
file has been placed in archives, it shall have the same consequences
as to further conduct by any respondent
party as to the matter having
been dismissed.’ (Emphasis added)
[16]
In
Seopa
v
Commission for Conciliation, Mediation and Arbitration and Others,
[9]
this
Court confirmed the circumstances under which a review application
will be archived:
‘
Clause 16 of the
Practice Manual is instructive as to the circumstances in terms of
which applications will be archived. It provides
that the Registrar
will archive a file in circumstances, where a period of six months
has lapsed without any further steps being
taken by the applicant
since the filing of the application or the date of the last process
filed, in instances relating to applications
in terms of rule 7 and
7A. Further, that where a file has been archived, it has the same
consequence of the matter having been
dismissed.’
[10]
[17]
The review application was launched on 21 November 2022. The 6 months
expired on 21 May
2023 and the 12 months on 21 November 2023. The
review application is therefore archived and regarded as lapsed. The
consequence
is that in the absence of an application for retrieval,
the matter is regarded as having been dismissed. There is nothing
that
prevents the Sheriff from proceeding with the execution of the
certified award.
Relief
sought
[18]
The notice of motion seeks the stay of the award pending the
determination of a review
application “
to be launched
”
under case number JR2614/22 or a rescission application to be
launched. The review application under the same case number
was
launched and has been withdrawn and/or has lapsed. The interdict
pending the determination of a rescission application is not
only
bizarre but is also legally unsound. The award was not granted in
default against the company nor was there any order granted
against
the company in default.
[19]
Mr Allis submitted that as a Court of equity, this Court should
exercise its discretion
and issue an order that would allow the
company to rectify its non-compliance with strict timelines.
Regrettably, it is not the
duty of this Court to advice the parties.
There are rules and the Practice Manual which govern procedures to be
followed in this
Court.
[20]
The company’s application for an interdict pending a withdrawn
or lapsed or dismissed
review application is not competent. It
follows that this urgent application stands to be dismissed.
Costs
[21]
Despite seeking costs in its application, Mr Allis argued during the
hearing that the company
no longer persists with a cost order. This
submission was made after it dawned on Mr Allis that this application
was doomed. For
reasons beyond any comprehension, the company argued
further that it should not be punished for aspects that are not
within its
control. Ms Swanepoel, appearing for Mothapo, argued for a
punitive cost order.
[22]
At all material times, the company has been legally represented. It
is 17.5 months since
the review application was launched and no
record has been filed. The company launched this urgent application
with full knowledge
that there is no
lis
pending before this
Court because the review application is deemed withdrawn and/or has
lapsed.
[23]
The company chose to litigate at its own time. This Court will not
and should not reward
carelessness, complacency, ill-discipline and
disregard of the rules regulating procedures which are aimed at
achieving the purpose
of the LRA to resolve labour disputes speedily
and expeditiously.
[24]
This
application is devoid of merit. The dismissed employee, that is
Mothapo, should not be saddled with the costs of opposing this
misdirected application. Considering the above, there are valid
reasons for this Court to deviate from the principle that costs
do
not follow the result.
[11]
I am persuaded that the dictates of law and fairness render a cost
order entirely appropriate,
albeit
on a
party and party scale.
[25]
In the premises, the following order is
made:
Order
1.
The application is dismissed with costs, including the costs
of
counsel.
M. Makhura
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant:
Mr.
I.T. Allis of Allis Attorneys
For
the Respondent:
Adv.
A. Swanepoel
Instructed
by:
De
Wet Lyell Neland Maeyane Inc.
[1]
Act 66 of 1995, as amended.
[2]
Effective
April 2013.
[3]
Item 3 of the Practice Manual.
[4]
The decision to approach the BCCEI and not this Court to uplift the
record is not explained. The record of arbitration proceedings
is
filed with the Registrar of this Court and that is where it should
be uplifted.
[5]
Macsteel
Trading Wadeville v Van der Merwe N.O. and others
(2019)
40 ILJ 798 (LAC);
[2018] ZALAC 50
at para 22;
Samuels
v Old Mutual Bank
(2017) 38 ILJ 1790 (LAC);
[2017] 7 BLLR 681
(LAC) at para 15.
[6]
(2017) 38 ILJ 414 (LC);
[2017] 1 BLLR 40
(LC).
[7]
Ibid
para 15.
[8]
See:
Overberg
District Municipality (ODM) v IMATU obo Spangenberg and Others
[2020] ZALCCT 38 at para 24.
[9]
[2021] ZALCJHB 255; [2021] JOL 51287 (LC).
[10]
Ibid
at
para 19.
[11]
Zungu v
Premier of the Province of KwaZulu-Natal and others
(2018) 39 ILJ 523 (CC) at paras 24 – 26;
[2018] 4 BLLR 323
(CC);
National
Union of Mineworkers obo Masha and others v Samancor Ltd (Eastern
Chromes Mine) and others
[2021] 9 BLLR 883
(CC); (2021) 42 ILJ 1881 (CC) at paras 28 –
33.