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2024
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[2024] ZALCJHB 189
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Chikane v General Public Service Sector Bargaining Council and Others (JR2753/19) [2024] ZALCJHB 189 (8 May 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no:
JR2753/19
In
the matter between:
CHIKANE
ALBERT CHIKANE
Applicant
and
GENERAL
PUBLIC SERVICE SECTOR
BARGAINING
COUNCIL
First
Respondent
MEC
FOR ROADS & TRANSPORT (GAUTENG)
Second Respondent
COMMISSIONER
MAREE
NO
Third Respondent
Heard
:
7 May 2024
Delivered
:
8 May 2024 (This judgment was handed down electronically by emailing
a copy to the parties.
Summary:
Non-compliance with Practice Manual. In the absence
of an application to reinstate, this court has no jurisdiction.
Matter struck
from the roll.
JUDGMENT
DANIELS
J
Introduction
[1]
Until his dismissal, the applicant was employed by the second
respondent as the Chief Executive Officer of “G-fleet”
the trading entity of the Department of Roads and Transport
(hereafter “the Department”).
[2]
Following a disciplinary hearing, the Department dismissed the
applicant on charges styled as “gross negligence”.
The
applicant unsuccessfully challenged the fairness of his dismissal
before the first respondent (hereafter “the Bargaining
Council”). Thereafter, the applicant launched an application to
review and set aside the arbitration award issued by the
third
respondent.
[3]
The review application was enrolled before me. The second respondent
raised the applicant’s alleged non-compliance
with clauses
11.2.2 and 11.2.7 of the Practice Manual. This was foreshadowed by
the second respondent in its answering affidavit.
[4]
The applicant argued that the review application was, in fact,
compliant with the Practice Manual. In addition, the applicant
referred to an explanatory affidavit filed by the Bargaining Council,
in which it attempted to explain the delay in the filing
of the
complete arbitration record.
Material
facts
[5]
The litigation in this matter took the following trajectory:
5.1 The review
application was launched on or about 27 November 2019.
5.2 The Bargaining
Council did not comply with the direction (in the notice of motion)
to file the arbitration record, nor
did the Registrar of this court
advise the applicant that the record had been filed, as contemplated
in Rule 7A(5).
5.3 On 17 June
2020, the applicant delivered a notice in terms of Rule 7A(8)(b),
advising the respondents that it did not
intend to supplement its
founding papers.
5.4 Thereafter, on
or about 18 August 2020, the applicant served on the second
respondent a copy of the bundle of documents
used at the arbitration.
5.5 On 15
September 2020, the applicant’s attorneys emailed the
Bargaining Council advising that the record was incomplete.
5.6 It appears
that, between October 2020 and late 2021, that there were several
other exchanges between the applicant’s
attorneys, the
Bargaining Council and the third respondent. During these exchanges,
the applicant advised the Bargaining Council
that he had made his own
recordings of the arbitration on the two days for which evidence was
missing (namely 14 May 2019 and 2
October 2019). Ultimately, the
applicant’s audio recording for these days were transcribed and
sent to the Bargaining Council
for the third respondent’s
perusal and validation. For her part, the third respondent provided
the applicant with a copy
of her handwritten notes. The handwritten
notes were compared against the transcript.
5.7
The
applicant urged the court to take into consideration that the time
periods, during which the abovementioned exchanges occurred,
related
to a period when the Covid19 pandemic was at its most virulent and
various restrictions were imposed.
[1]
5.8 On 29
September 2021, the Bargaining Council filed a bundle of transcripts
and the commissioner’s handwritten notes.
On 18 November 2021,
the applicant served and filed a further bundle of documents used at
the arbitration.
5.9 On 10 February
2022, the second respondent served and filed its answering affidavit.
The applicant did not raise any
objection to the late filing of the
answering affidavit. On 16 February 2022, the applicant delivered its
replying affidavit.
Legal
principles and analysis
[6]
The
Practice Manual constitutes a series of directives issued by the
Judge President to provide access to justice, promote consistency,
establish guidelines for the standards of conduct of those who
litigate in the Labour Court. It aims to improve the quality of
service to the public and promote expeditious dispute resolution. Its
provisions are binding, though the Labour Court’s discretion
in
interpreting and applying the provisions of the manual remains
intact.
[2]
It is necessary to
set out some of the applicable provisions of the manual:
Clause
11.2.2: For the purposes of Rule 7A(6), records must be filed
within 60 days
of the date on which the applicant is
advised by the Registrar
that the record has been filed
.
Clause
11.2.3: If the applicant fails to file a record within the prescribed
period, the applicant will be deemed to have withdrawn
the
application…...
Clause
11.2.7: A review application is by its very nature an urgent
application. An applicant in a review application is therefore
required to ensure that
all the necessary papers are filed within
twelve (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 for allocation 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.
Clause
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.”
(Own
emphasis)
[7]
It has been held that the Practice Manual must be strictly construed
and applied. However, this does not mean it must
be selectively
applied. Accordingly, where the Practice Manual operates to the
applicant’s benefit, then he must reap that
benefit.
[8]
In this matter, the applicant filed the record at different times, as
and when the record came into his possession. This
conduct stretched
from the launch of the review applicant during 2019 until late in
2021.
[9]
The contents of the court file reveals that the Registrar did not
make the record available to the applicant in the manner
contemplated
by Rule 7A(5). In the circumstances, it cannot be said that there has
been non-compliance with the 60-day period contemplated
in clause
11.2.2 of the Practice Manual.
[10]
However, that is not the end of the matter. It is clear the applicant
has not complied with clause 11.2.7 of the Practice
Manual. He has
not ensured that all the necessary papers are filed within 12 months
of the launch of the review, and he has not
requested the Registrar
to enroll the application for hearing.
[11]
In
E
Tradex (Pty) Ltd t/a Global Trade Solution v Finch and others
[3]
the LAC held that the archiving of a court file does not refer to
administrative action by the Registrar. Instead, it is the legal
consequence of non- compliance with the Practice Manual. In the
circumstances, as a result of clause 11.2.7, the application is
archived and must be regarded as having lapsed.
[12]
The applicant is entitled to bring an application to reinstate the
review. To do so, the applicant must bring a formal
application in
which he must show that the application is bona fide, that he has
reasonable prospects of success, and that there
is a full and proper
explanation for the entire period of the default. The applicant is
not required to prove his case, he must
merely set out facts which,
if established, would result in his success at the hearing of the
main dispute.
Order
[13]
In the absence of an application to reinstate the review, this court
lacks jurisdiction to hear the review. In the result,
the application
is struck from the roll. There is no order as to costs.
R
Daniels
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv Maake,
T Radzilani Inc
For
the Respondent: Adv Matyolo,
H Maponya, State
Attorney’s Office
[1]
By 27 March 2020, the country was gripped by panic, with the
outbreak of the COVID19 pandemic. The State President announced
a
hard lockdown from 27 March 2020 until 16 April 2020. The lockdown
was extended from 16 April until 30 April 2020. From 1 May
2020, the
country moved to Alert Level 4, and some economic activity was
permitted. However, restrictions in some form or other
continued
well into 2021.
[2]
Samuels
v Old Mutual Bank
(2017) 38 ILJ 1790 (LAC)
[3]
(2022) 43 ILJ 2727 (LAC)