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[2024] ZALCJHB 178
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Johannesburg City Parks and Zoo v South African Municipal Workers Union and Another (JS277/17) [2024] ZALCJHB 178 (2 May 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
No:
JS277/17
In
the matter between:
JOHANNESBURG
CITY PARKS AND ZOO
Applicant
and
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
First
Respondent
THE
PEOPLE LISTED IN ANNEXURE “X” TO
THE
NOTICE OF
MOTION
Second
Respondent
Heard
:
15 February 2024
Delivered
:
02 May 2024
Summary:
Rule 11 application to dismiss – dismissal not competent as
main dispute archived in terms
of the Practice Manual –
declaratory order issued regarding archiving.
JUDGMENT
ITZKIN, AJ
Introduction
[1]
Johannesburg
City Parks and Zoo (City Parks) applies, in terms of Rule 11
[1]
,
for the dismissal of a referral in terms of Rule 6 based on a lack of
diligent prosecution.
[2]
The referral was made several years ago. In the intervening period,
there
have been multiple extended stretches of inactivity; the
longest being 16 months after the delivery by City Parks of its
response
to the statement of claim.
[3]
The Rule 11 application is opposed by SAMWU and its members. In
opposing
the application, they advance three main arguments:
3.1
First, they contend that City Parks ought to have invoked Rule 6 and
not Rule
11. The argument runs along these lines: Referrals are
governed by Rule 6. That rule contained a remedy which could be
invoked
where a pre-trial conference was not called for by SAMWU and
its members - City Parks could have taken steps to have a pre-trial
conference convened by a Judge.
3.2
Second, they contend that the trial relating to the main matter has
been set
down on 16 and 17 May 2024 and that as a result, the matter
is on track to be heard at trial and ought not to be dismissed.
3.3
Third, they contend that the Rule 11 application has been archived by
operation
of the Practice Manual, as City Parks did not take any
steps to prosecute the Rule 11 application for a period longer than
six
months.
[4]
It became
evident from a consideration of the papers that there is an
antecedent issue to be considered: owing to the period of
inactivity
in the main matter (i.e. the referral by SAMWU and its members), the
six-month archiving period in paragraph 16 of the
Practice Manual
[2]
would have elapsed (many times over) during the passage of the
litigation. This, in turn, gave rise to the question regarding the
impact of this on the Rule 11 application.
[5]
At the hearing of the matter, I raised the following questions with
the
parties’ representatives:
5.1
Have the provisions in paragraphs 16.1 and 16.3 of the Practice
Manual taken
effect in relation to the main matter?
5.2
If the provisions in paragraphs 16.1 and 16.3 of the Practice Manual
have taken
effect in relation to the main matter, is an order
dismissing the main matter competent in the Rule 11 application?
5.3
If such an order is not competent, what are the possible orders that
the Court
may issue?
[6]
In addition to inviting the parties to address the Court regarding
the
above questions in oral argument (together with the merits of the
Rule 11 application), I invited the parties to file brief written
submissions addressing these questions if they so wished. Both
parties took up this invitation, and I am grateful to the parties
for
their helpful submissions.
Analysis
[7]
The starting point is the provisions of the Practice Manual.
[8]
Paragraph 1.2 of the Practice Manual, which forms part of the
introductory
section outlining its purposes, provides as follows:
‘
The practice
manual is not a substitute for the Rules of the Labour Court. It is
concerned mainly with how the Rules of Court are
applied in the daily
functioning of the court. The manual tells representatives and
litigants how things are done in this court,
and what is expected of
them. By their nature, the provisions of the manual call for
flexibility in their application where this
is required to promote
their purpose.’
[9]
Paragraph 2.2 of the Practice Manual, which forms part of the section
pertaining to its application, provides:
‘
The manual seeks
to obtain uniformity amongst judges in respect of practice rulings.
It must be emphasised that no judge is bound
by practice directives;
this manual is not intended to limit judicial discretion. It should
be noted though that the judges of
the Labour Court strive for
uniformity in the functioning of the courts and their
practice-related rulings. The practice manual
thus sets out what can
be anticipated, in the normal course of events, on any issue covered
by it.’
[10]
These
extracts suggest that the provisions of the Practice Manual, although
binding on litigants and designed to create uniformity,
may be
departed from by the Court where appropriate. This flexibility
accords with section 173 of the Constitution which provides
that the
superior courts each have the inherent power to protect and regulate
their own process, taking into account the interests
of justice.
[3]
[11]
Although
the court is not bound to slavishly follow the Practice Manual,
parties who litigate in it are bound by the Practice Manual.
The
flexibility in the application of the Practice Manual extends to
judges applying its provisions; not to litigants. With reference
to
litigants, the Practice Manual does not operate as a guideline or a
compilation of suggestions. The Labour Appeal Court (LAC)
expressed
the position as follows in
Samuels
v Old Mutual Bank
:
[4]
‘
The
practice manual is not intended to change or amend the existing Rules
of the Labour Court but to enforce and give effect to
the Rules, the
Labour Relations Act as well as various decisions of the courts on
the matters addressed in the practice manual
and the Rules. Its
provisions therefore, are binding. The Labour Court’s
discretion in interpreting and applying the provisions
of the
practice manual remains intact, depending on the facts and
circumstances of a particular matter before the court.’
[12]
The Practice Manual contains several provisions which impose
consequences on litigants
for steps which are not taken timeously.
[13]
Paragraph 10.4.4 provides, in relation to pre-trial conferences, that
a judge may issue
an order in respect of filing of a pre-trial
minute, and a failure to comply with such an order may result in the
file being archived,
to be retrieved only on application.
[14]
Paragraph 11.2.3, which pertains to review records, provides that if
the applicant fails
to file a record within the prescribed period,
the applicant will be deemed to have withdrawn the application
(unless consent to
an extension has been sought from the respondent,
or if consent is refused, an application has been made to the Judge
President
in chambers for an extension of time).
[15]
Paragraph
11.2.7 provides, in relation to review applications, that where all
of the papers are not filed and the registrar is not
informed in
writing
that the application is ready for allocation for hearing
within 12 months of launching the application, the application will
be archived and be regarded as lapsed unless good cause is
shown why
the application should not to be archived or be removed from the
archive.
[5]
[16]
Paragraph 16 – which is directly relevant to this case given
that the main matter
involves a Rule 6 referral - is headed
“Archiving of Files”. It 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;
-
in the case of referrals in terms of Rule 6,
when a period of six
months has elapsed from the date of delivery of a statement of case
without any steps taken by the referring
party from the date on which
the statement of claim was filed, or the date on which the last
process was
filed;
and
-
when a party fails to comply with a direction
issued by a judge
within
the
stipulated time limit.
16.2 A
party to a dispute in which the file has been archived may submit an
application, on affidavit, for the
retrieval of the file, on notice
to all other parties to the
dispute.
The provisions of Rule 7 will apply to an application brought in
terms of this
provision.
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.
’
[17]
How have the courts interpreted and applied the provisions relating
to archiving in the
context of Rule 11 applications to dismiss?
[18]
There has been a divergent array of approaches over the years. Given
that the LAC has delivered
judgments which bind this court, dealing
with the implications of the archiving and dismissal provisions of
the Practice Manual,
those judgments (and judgments of this court
referring to and applying those judgments) are the focal point.
[19]
Macsteel
Trading Wadeville v van der Merwe N.O and Others
[6]
involved an appeal against a judgment of this court in a review
application. In an answering affidavit, the respondent in the review
application raised the review applicant’s dilatory conduct. It
did not deliver a separate Rule 11 application. The LAC held
as
follows:
‘
[23]
The Practice Manual came into effect during April 2013; midway
through the review application. It,
therefore, applies to it. Clause
11.2.7 imposes an obligation on the applicant to ensure that all the
necessary papers in the application
are filed within 12 months of the
date of the launch of the application (excluding heads of argument),
and the registrar is informed
in writing that the application is
ready to be set down for hearing. Where this time limit is not
complied with, the application
will be archived and be regarded as
lapsed unless good cause is shown why the application should not be
archived or be removed
from the archive. The record in the review
application had been filed approximately 20 months after the launch
of the review application.
And the review application was set down
for hearing almost six years from its launch. This means that by the
date of set down of
the review application, it had been archived and
regarded as lapsed.
[24]
Macsteel had raised NUMSA’s undue delay in prosecuting the
review application in its answering
affidavit in the review
application, but since that application had in effect lapsed and been
archived, the Labour Court had no
jurisdiction to determine the issue
of the undue delay raised there. In the circumstances, Macsteel would
have been required to
bring a separate rule 11 application for the
review application to be dismissed or struck from the roll on the
grounds of NUMSA’s
undue delay in prosecuting it. But a rule 11
application was not a prerequisite for the Labour Court, in this
particular instance,
to consider whether, on the grounds of undue
delay, the review application should be dismissed or struck from the
roll.
[25]
As indicated, the review application was archived and regarded as
lapsed as a result of NUMSA’s
failure to comply with the
Practice Manual. There was also no substantive application for
reinstatement of the review application,
and no condonation sought
for the undue delay in filing the record. As contended for by
Macsteel, the Labour Court was, as a matter
of law, obliged to strike
the matter from the roll on the grounds of lack of jurisdiction,
alternatively, give Macsteel an opportunity
to file a separate rule
11 application demonstrating why the matter should be dismissed or
struck from the roll on the basis of
undue delay.
[26]
Thus, having failed to strike the matter from the roll, it was
impermissible for the Labour Court
to decline to deal with the issue
of the delay because Macsteel did not bring a rule 11 application.
The correct approach was for
the Labour Court to afford Macsteel an
opportunity to bring a rule 11 application.’
[20]
The LAC thus appears to have accepted that a Rule 11 application
would be competent where
the archiving provisions of the Practice
Manual have taken effect – albeit that it did not definitively
determine the relief
to be granted in such an application; making
reference to the possibility of seeking dismissal or for the matter
to be struck off
the roll.
[21]
Subsequently,
in
Randburg
Towers v Masilo; In re Masilo v CCMA and Others
[7]
(
Randburg
Towers
)
this court (per Van Niekerk J, as he then was) held as follows in the
context of a Rule 11 application for an order dismissing
a review
application, where paragraph 11.2.3 of the Practice Manual had taken
effect:
[8]
‘
To the extent that
the applicant submits that the court is empowered to entertain an
application to dismiss, that may be so in respect
of review
applications where an applicant has failed, generally speaking, to
prosecute the application with due diligence or where
one or more
factors, other than one that has the consequence of a deemed
withdrawal of the review application, is at play. I do
not understand
the decision of the Labour Appeal Court in
Macsteel Trading
Wadeville v François van der Merwe & others
(2019) 40
ILJ 798 (LAC) to entitle an applicant to file a Rule 11 application
regardless of the state of the review application
itself. That
decision concerned a review application which in terms of the
practice manual had been archived and regarded as lapsed.
The
reference to the opportunity to file a separate Rule 11 application
made in paragraph 28 of the judgment must necessarily be
understood
in that context. In the present instance, the applicant in the review
application is deemed to have withdrawn the application.
It is not an
application that has lapsed, or which has been archived. Simply put,
there is no longer a review application that
serves before the court.
In those circumstances, in my view, the applicant in the present
application is entitled to a declaratory
order that gives effect to
the consequences visited by clause 11.2.3 on an applicant that fails
to comply with the time limits
within which to file a record of
proceedings sought to be reviewed.’
[22]
The court consequently made the following order:
‘
It
is decreed that in terms of clause 11.2 of the Practice Manual, the
review application filed by the respondent is deemed to have
been
withdrawn.
’
[23]
This court thus found that where a review application is deemed to
have been withdrawn
in terms of the Practice Manual (and has not
merely been archived), a Rule 11 application is not competent, but a
declaratory order
regarding the status of the matter may be
appropriate.
[24]
There has
been a series of subsequent judgments of this court adopting a range
of approaches relating to archiving. An in-depth
analysis thereof is
unnecessary because the LAC has since delivered the judgment in
E
Tradex (PTY) Ltd t/a Global Trade Solution v Finch and Others
,
[9]
which espoused the following principles:
24.1
The
Registrar’s act of setting a matter down after the archiving
provisions in the Practice Manual have been triggered, has
no legal
significance and does not serve to ‘resuscitate’ the
matter. Once the case is ‘archived’ it requires
the
intervention of the court to ‘un-archive’ it.
[10]
24.2
An archived
case acquires a peculiar status which requires the delinquent party
to justify why it should be reinstated and thereafter
be entertained
by a court in the wake of a lack of expeditious prosecution.
Archiving is not an administrative act; it is a matter
of status.
Upon a given event (i.e. the triggering of the archiving provisions),
the case automatically acquires the status provided
for in the
Practice Manual.
[11]
[25]
This
approach was later followed by this court in
Nhlapo
v Sambo N.O. and Others
[12]
(per Prinsloo J), also in the review context, wherein with reference
to the LAC’s
dicta
above, it was held that “
[t]he
LAC made it clear that
the
effect of lapsing or archiving of a matter is that the case shall not
be dealt with by a court unless an application to reinstate
or to
retrieve the file from the archive has been made”
.
[13]
[26]
In these circumstances, this court is bound by the LAC’s
judgment in
E Tradex (PTY) Ltd t/a Global Trade Solution v Finch
and Others
(which were followed by this court
Nhlapo v Sambo
N.O. and Others
).
[27]
The referral by SAMWU and its members has accordingly been archived,
which has the same
consequences as the dismissal of the matter. That
position will remain in effect until and unless an application for
retrieval
is brought and granted.
[28]
It follows that the merits of the application to dismiss cannot be
entertained –
which also obviates the need to determine the
three bases of opposition raised by SAMWU and its members.
[29]
That is, however, not the end of the matter.
[30]
The trial in the matter is set down on 16 and 17 May 2024. Given the
impact of the archiving
of the matter (which, in terms of paragraph
16.3 of the Practice Manual, has “
the
same consequences as to further conduct by any respondent party as to
the matter having
been
dismissed”
)
, the matter
has acquired a status which precludes it from proceeding to trial.
[31]
It is
therefore appropriate to make an appropriate declaratory order as was
done by this court (per Van Niekerk J, as he then was)
in
Randburg
Towers
.
[14]
[32]
Lastly, with reference to costs, City Parks did not seek costs owing
to the parties’
ongoing relationship. SAMWU and its members’
representative did not press for any order of costs. Considerations
of law and
fairness weigh against a costs order being made.
[33]
In the result, the following order is made:
Order
1.
It is declared that in terms of paragraph 16 of
the Practice Manual, the referral by SAMWU and its members is
archived, which has
the same consequence as
the
matter having
been
dismissed.
2.
There is no order as to costs.
R Itzkin
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Charles
Beckenstrater of Moodie & Robertson
For
the Respondent:
B
Lukhele of Phakedi Attorneys Inc.
[1]
Rules for the Conduct of Proceedings in the Labour Court as
promulgated by GN 1665 in GG 17495 of 14 October 1996.
[2]
Practice
Manual of the Labour Court of South Africa, effective 2 April 2013.
[3]
Although the section refers to the Constitutional Court, the Supreme
Court of Appeal and the High Court,
section 151(2)
of the
Labour
Relations Act 66 of 1995
, as amended (LRA) provides that “
[t]he
Labour Court is a superior court that has authority, inherent powers
and standing, in relation to matters under its jurisdiction,
equal
to that which a court of a provincial division of the Supreme Court
has in relation to the matters under its jurisdiction”
.
See also
Mukaddam
v Pioneer Foods (Pty) Ltd Mukaddam v Pioneer Foods (Pty) Ltd
[2013]
ZACC 23
;
2013
(5) SA 89
(CC) at para 32, where reference is made to each superior
court being the master of its own processes.
[4]
[2017]
ZALAC 10
;
[2017]
7 BLLR 681
(LAC)
at
para 15
.
[5]
In 2014, the LRA was amended to include, as
section 145(5)
, a
provision to the effect that “
[s]ubject
to the rules of the Labour Court, a party who brings an application
under subsection (1) must apply for a date for the
matter to be
heard within six months of delivery of the application, and the
Labour Court may, on good cause shown, condone a
late application
for a date for the matter to be heard.”
[6]
[2018]
ZALAC 50
;
(2019)
40 ILJ 798 (LAC).
[7]
(JR 1758/2016) [2021] ZALCJHB 10 (19 February 2021)
at
para 5
.
[8]
See also
SG
Bulk, A Division of Supergroup Africa (Pty) Ltd v Khumalo and
Another
(J63/20) [2021] ZALCJHB 416 (13 May 2021), wherein the Court (per
Moshoana J) followed a similar approach.
[9]
[2022]
ZALAC 106
;
(2022)
43 ILJ 2727 (LAC).
[10]
Ibid
at para 9.
[11]
Ibid
at
para 11.
[12]
(JR1451/2018) [2023] ZALCJHB 169 (18 May 2023).
[13]
Ibid
at para 29. In
Dzuni
Properties (Pty) t/a Wimpy Songozwi v SACCAWU obo Maimela and Others
(JR 591-18) [2023] ZALCJHB 115 (26 April 2023), the Labour Court
(per Leppan AJ) adopted a more flexible construction, finding
that
an application dismiss is competent even where the archiving
provisions of the Practice Manual have taken effect.
[14]
Such an order would accord with the court’s power to make such
orders under
section 158(1)(a)(iv)
of the LRA
.