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[2017] ZALAC 10
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Samuels v Old Mutual Bank (DA30/15) [2017] ZALAC 10; [2017] 7 BLLR 681 (LAC); (2017) 38 ILJ 1790 (LAC) (25 January 2017)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case no: DA30/15
In
the matter between:
RUMBA
SAMUELS
Appellant
and
OLD
MUTUAL BANK
Respondent
Heard:
25 August 2016
Delivered:
25 January 2017
Summary:
Application to retrieve a file archived in terms of the Labour Court
Practice Manual –Practice Manual having binding
effect and its
purpose
is
to enforce and give effect to the Labour Court Rules, the Labour
Relations Act as well as case law. The Labour Court exercising
discretion in considering the provisions of the practice manual on
good cause shown by the party seeking the revival of the file.
The
overwhelming evidence showing that the appellant played an active
role to file the record and that CCMA responsible for the
delay by
failing to file a full record resulting in the appellant filing the
record in a piecemeal fashion. -Labour Court misdirecting
itself in
dismissing application – Appeal upheld with costs and employee
granted leave to proceed with the review application.
Coram:
Tlaletsi DJP; Ndlovu JA
et
Hlophe AJA
JUDGMENT
Tlaletsi
DJP,
[1]
The
appellant is appealing against the order of the Labour Court (per
Whitcher J) which dismissed her application to have her file
pertaining to an application for review removed from the archives.
Her file had been archived in terms of Clause 11.2.7 of the
Practice
Manual of the Labour Court of South Africa issued by the Judge
President. The directive came into operation with effect
from 2 Aril
2013.
[2]
Clause
11.2.7 is part of Clause 11 dealing with case management of Motion
Proceedings provided by Rule 7 and 7A of the Rules of
the Labour
Court. It provides that:
‘
11.2.7.
A review application is by its nature an urgent application. An
applicant in a review application is therefore
required to ensure
that all the necessary papers in the application are filed within
twelve (12) months of the date of the launch
of the application
(excluding Heads of Arguments) 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 to be archived or be removed from the
archive.’
[3]
Clause
16 of the Practice Directive also provides for archiving files in
circumstances not covered by clause 11.2.7. Clause 16.1
provides
that:
‘
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 applicatio
n
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
stipulated time limit’.
[4]
In
order for a file to be brought back to life, an interested party has
to act in terms of Clause 16.2 which requires that an application,
on
affidavit, for the retrieval of the file on notice to all other
parties to the dispute to be launched. The provisions of Rule
7 will
apply to such an application. This is such application brought by the
appellant in the court
a
quo
.
Clause 16.3 provides that:
‘
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.’
[5]
A
brief background to the dispute is necessary to contextualise the
issues on appeal. The appellant was employed by the respondent
commercial bank as a clerk at its Durban office from 15 October 1981.
She held various clerical positions over a period of 26 years.
She
was dismissed on allegations of misconduct on 23 May 2001. She was at
the time assigned to the reception. She referred an unfair
dismissal
dispute to the Commission for Conciliation Mediation and Arbitration
(the CCMA). After failed conciliation of the dispute,
the appellant
referred it to arbitration.
[6]
The
arbitration proceedings commenced on 18 October 2007 and sat for a
period of 28 days during the period 2008, 2009, 2010 and
were
finalised on 7 March 2011. The Arbitration award was issued on 4
April 2011. The arbitrator found that the respondent had
failed to
discharge the
onus
of showing that the appellant’s dismissal was fair. However, in
lieu of reinstatement awarded the appellant compensation
equivalent
to her 12 months’ salary at the time of dismissal.
[7]
Aggrieved
by the award, the appellant instituted review proceedings on 13 May
2011 seeking
inter
alia
an
order that the award of compensation be reviewed and set aside and be
substituted with a reinstatement order. What happened thereafter
led
to her file being archived and causing her to institute the
application which is the subject of this appeal.
[8]
It
cannot be disputed that the appellant encountered difficulties with
the filing of the complete record for the review application.
Her
difficulties came largely from the CCMA which could not produce a
complete record, causing the record to be filed piecemeal
over a long
period.
[9]
What
follows is a summary of the chronology of events that transpired from
the lodging of the review application which are common
cause. These
facts have been extrapolated from affidavits filed by the parties as
well as other documents forming part of the appeal
record.
91
On 1 August 2011 the CCMA confirmed that it had dispatched the record
of proceedings to the Labour
Court.
9.2
On 22 August 2011 the appellant instructed the transcribers to
proceed with the transcription.
9.3
On 15 November 2011 the appellant notified the Registrar of the
Labour Court (Ms Bothma) that the transcript
would take
“approximately 3 to 4 weeks more to be completed”.
9.4 On
20 April 2012 the appellant was advised that one Marcus at the CCMA
was trying to locate missing tapes
of the arbitration proceedings.
9.5
On 31 May 2012 the appellant delivered the first batch of the
transcripts.
9.6
On 11 July 2012 the appellant addressed a letter to the respondent
advising of some discrepancies in
the transcripts.
9.7
On 16 and 17 July 2012 the appellant and the respondent exchanged
correspondence concerning some issues
relating to the exhibits.
9.8
On 17 September 2012 the appellant addressed a letter to the
respondent advising that the transcription
process was on-going.
9.9
On 19 April 2013 the appellant addressed a letter to the respondent
updating it on the transcription
process and expressing her intention
to proceed with the review.
9.10 On 28
May 2013 the appellant addressed a letter to the Registrar of the
Labour Court (Ms Bothma) advising that
the missing portions of the
record were being attended to.
9.11 On 29
May 2013 the Registrar addressed a response to the appellant in which
she stated,
inter alia,
that “(the) matter has been
referred to the Registrar/Judge for his/her attention... (and that)
... (we) will endeavour to
respond to your enquiry within a
reasonable time” – the appellant received no response.
9.12 On 12
and 16 August and 3 September 2013 respectively, the appellant
addressed three letters to the CCMA’s
Lesley Murray enquiring
about the exhibits that the CCMA had failed to furnish to the Labour
Court.
9.13 On 3
September 2013 the appellant addressed a letter to the respondent
concerning the exhibits and suggested
inter alia
that the
respondent utilise its own set of exhibits.
9.14 On 5
September 2013 the appellant delivered a further portion of the
record.
9.15 On 12
September 2013 the respondent addressed a letter to the appellant in
which it stated
inter alia
that it continues “to reserve
(its) rights concerning the delay in the prosecution of the matter”.
9.16 On 4
April 2014 the appellant delivered a further portion of the record.
9.17 The
complete record of the arbitration proceedings was delivered on 16
May 2014.
9.18 The
respondent, in a letter dated 21 May 2014 and addressed to the
Registrar of the Labour Court, sought a directive
that the applicant
complies with the Practice Directive 16.
9.19 On 30
May 2014 the appellant delivered a Rule 7A(8) notice, and a
supplementary affidavit.
9.20 By way
of a directive dated 30 May 2014 Shai AJ directed that the appellant
complies with Practice Directive 16.
9.21 The
appellant delivered her application to retrieve the file from the
archives on 24 July 2014.
[10]
The
application to have the file retrieved from the archives was heard on
23 April 2015. On that day the Labour Court dismissed
the application
with no order as to costs. Written reasons for the order were only
provided on 18 September 2015. However, the
written reasons record
that on 22 April 2015 “
[the
Judge] gave brief reasons for my order primarily based on the
detailed submissions of the respondent. The [appellant] requested
further and written reasons”
.
The transcript of the brief reasons referred to above is not part of
the appeal record. We are therefore unable to consider them
as they
remain unknown to us.
[11]
In
the written reasons, the court
a
quo
found no merit in the appellant’s contention that the Practice
Manual should not apply to her case because the manual only
came into
operation in April 2013 whereas her review application was filed as
far back as May 2011. The court
a
quo
reasoned that the manual is based on the Rules of the Labour Court as
well as the principles established by case law long before
the manual
came into effect. Further, that even if the 60-day period only
operated from April 2013, the record was still filed
a year late. The
Labour Court was further concerned that the dismissal occurred seven
years ago and that the entire purpose of
the review application was
to secure reinstatement; that for the appellant to succeed with the
application she was required “
to
prove an exceptional explanation, exceptional prospects of success, a
material injustice and no prejudice to the respondent
”.
[12]
The
Labour Court accepted that the CCMA was partly to blame for the delay
in that it failed to provide the full record on time and
that the
appellant had to conduct a search for the missing parts thereof.
However, the Labour Court held, her legal representatives
could have
approached the respondent’s representatives for collaboration
on “
crafting
an appropriate record”
.
Further that there were various stages of inactivity where no steps
were taken by the appellant and she has provided no real explanation
for same; that this application was also brought almost two months
after being directed to do so.
[13]
The
Labour Court was also not persuaded that the appellant had
“excellent” prospects of success in the review
application
“
considering
the strict test for setting aside an award on review; that nowhere
has the appellant alleged or established that the
commissioner was
not permitted in law to take into account the factors he considered
”;
and that:
‘
In
summary, there is not much evidence of any material misdirections on
the part of the commissioner that entirely distorted the
outcome or
that the commissioner mostly relied on “bad reasons” for
making the award (to employ the phrase used by
SCA in Sidumo).
The last factor
which militates against granting condonation is the respondent’s
right to finality. It cannot be fair that
more than three years after
the CCMA gave its award, the review is still being processed by
applicant and thus far from finality.
There must be a time limit
beyond which a litigant may not be permitted to rely on excuses, even
acceptable ones, and the respondent’s
right to finality assumes
more weight’
.
[14] The consolidated
practice manual which came into operation on 2 April 2013 constitutes
a series of directives issued by the
Judge President over a period of
time. Its purpose is,
inter alia
, to provide access to justice
by all those whom the Labour Court serves; promote uniformity and/or
consistency in practice and
procedure and set guidelines on standards
of conduct expected of those who practise and litigate in the Labour
Court. Its objective
is to improve the quality of the court’s
service to the public, and promote the statutory imperative of
expeditious dispute
resolution.
[15]
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
[1]
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.
[2]
[16] Clause 16.2 does not
specifically state that in an application for the retrieval of the
file, a party who brings that application
must show good cause why
the file must be retrieved from the archive. It however states in no
uncertain terms that the provisions
of Rule 7 will apply in an
application brought under the Clause 16.2. Clause 11.2.7 applicable
to Rule 7 and 7A applications requires
that a party who applies for a
file to be removed from the archive must show good cause why the file
must be removed from the archive.
Furthermore, an applicant who
applies for a file that has been archived for failure to comply with
an order by a Judge to file
a pre-trial minute, to be removed from
archives, has to show good cause why such a file should be removed
from the archives. There
is therefore no doubt that showing good
cause is a requirement for a file to be removed or retrieved from the
archives in terms
of Clause 16.2.
[17]
In essence, an application for the retrieval of a file from the
archives is a form of an application for condonation for failure
to
comply with the Court Rules, timeframes and directives. Showing good
cause demands that the application be
bona
fide
;
that the applicant provide a reasonable explanation which covers the
entire period of the default; and show that he/she has reasonable
prospects of success in the main application
[3]
,
and lastly, that it is in the interest of justice to grant the order.
It has to be noted that it is not a requirement that the
applicant
must deal fully with the merits of the dispute to establish
reasonable prospects of success. It is sufficient to set
out facts
which, if established would result in his/her success. In the end,
the decision to grant or refuse condonation is a discretion
to be
exercised by the court hearing the application which must be
judiciously exercised.
[18] The respondent has
not challenged the appellant’s
bona fides
in bringing
this application. Neither did the court
a quo
find that the
application is not made
bona fide
by the appellant. I have no
doubt that given the financial expense and effort put by the
appellant to pursue her review application
that the application for
retrieval of the file from achieve is
bona fide
.
[19] The main challenge
to the application is the delay of seven moths in filing copies of
the exhibits and the general delay in
filing the complete record for
the review application. The appellant has devoted the bulk of her 33
paged founding affidavit to
explain the difficulties she encountered
in having the record prepared to the standard required by the Rules
and directives of
the Labour Court. It is evident from the chronology
set out above that she did not sit back and do nothing to have a
complete and
proper record prepared and filed. The appellant played
an active role to have the record prepared. There were exchanges of
correspondence
and attendances between the appellant, her attorneys
of record, the CCMA and the transcribers all aimed at having a
complete record
produced. The fact that the appellant and her
attorneys kept the respondent and the Registrar’s office
abreast of the difficulties
she experienced and the progress made is
not disputed. These exchanges evince reasonable and diligent steps
taken by the appellant
to prosecute her review application.
[20] The true reason for
the delay in having the complete record to be produced lies squarely
at the conduct of the CCMA which at
times failed to respond to
inquiries made by the appellant. The criticism that there were
various stages of inactivity which have
not been pointed out is in my
view not supported by the evidence on record as well as the
circumstances in which the appellant
operated. In this case, the
delay in filing a complete record was unavoidable.
[21] It is indeed correct
that the entire delay in hearing the review application is excessive.
We however know what caused the
delay. It would be unfair under the
circumstances to punish the appellant for the delay for which she is
not to blame. The court
a quo
was correct to find that the
respondent has a right to have the dispute finalised without delay.
However, such a right cannot supersede
the appellant’s right
not to be unfairly dismissed. Furthermore, the appellant is similarly
entitled to have the matter finalised
in a fair and just manner.
[22] With regard to
prospects of success, it is not advisable at this stage to delve in
detail into the merits of the review application
which has not been
considered by the Labour Court. As pointed out already, it is
sufficient for the appellant at this stage to
place facts that if
established will entitle her to a successful review application. The
following remarks and findings by the
commissioner who arbitrated the
dispute and found her not guilty of any misconduct are pivotal to the
appellant’s claim for
reinstatement as opposed to compensation
awarded by the commissioner:
·
There
was substantial evidence that the charges against the appellant were
preferred immediately after she had lodged a grievance
against Prem
Naidoo (one of her managers).
·
It
is common cause that no shred of evidence was presented at the
arbitration to support the charges.
·
Although
the Chairperson of the disciplinary hearing found her guilty of four
out of the nine charges, he failed to come to
the arbitration
to substantiate his findings and his decision to dismiss the
appellant.
·
“
Prem
Naidoo, who was the “
main
item from day one of the arbitration up to the conclusion of the
evidence, attended the arbitration proceedings religiously
and she
heard all the accusations that were levelled against her by some of
the [appellant’s] witnesses and the [appellant]
herself but she
decided not to bat an eyelid. She sat so quietly like a statue
”.
·
No
reasons were advanced for her reluctance to offer testimony or to
defend herself from the “
vicious
character assassination
”.
·
“
It
is probable that Prem’s failure to testify would confirm the
[appellant’s] perception that the charges were trumped
up by
Prem in order to get rid of her since they had a bad relationship
”.
[23] It is for the court
on review that would be in a position to adjudicate on the review
application once all the necessary papers
have been filed. It must be
emphasised that the Practice Directive, in particular the provisions
relating to archiving and retrieval
are there to facilitate
expeditious but fair adjudication of the disputes in the Labour
Court. The manual should not be used to
enable a party to gain an
unfair advantage over the other. In this matter, the refusal of the
application to retrieve the file
from archives would mean that an
employee who has served her employer for a period of 26 years, who is
not guilty of any misconduct,
and elected to exercise her
constitutional rights to fair labour practise is dismissed at will
through trumped up charges by her
senior manager. That would indeed
be a wrong message to send.
[24]
We were referred to the decision of this Court in
Tshongweni
v Ekurhuleni Metropolitan Municipality
[4]
in support of the contention that the appellant’s review
application is a disguised claim for damages since it would not
be
possible for her to tender her services if reinstated due to the fact
that she would have reached her retirement age. The retirement
age is
disputed by the appellant. It would be speculative and improper to
pronounce on these issues at this stage and they should
be left to
the review court when all papers have been filed should the matter
reach that stage. Furthermore, the court hearing
the review
application would be at large to determine the relief afresh given
the circumstances of the appellant’s case.
[25] For the above
reasons, I am satisfied that the court
a quo
misdirected
itself in its reasons in support of the dismissal of the application
to retrieve the file from archive. It would in
addition be in the
interest of justice and fairness that the non-compliance be condoned.
The appeal should therefore succeed. Both
parties contended that
costs should follow the result. I agree that it would be in
accordance with the requirements of the law
and fairness that costs
follow the result.
[26] In the result, the
following orders are made:
a)
The appeal is upheld with costs;
b)
The order of the Labour Court is set aside and substituted with the
following:
‘
1.
The applicant is granted leave to proceed with the review
application
2.
The respondent is to pay costs.’
_________________
Tlaletsi
DJP
Ndlovu
JA et Hlophe AJA concur in the judgment of Tlaletsi DJP.
APPEARANCES:
For
the Appellant:
T E Seery
Instructed
by:
Jay Reddy Attorneys
For
the Respondent:
C B Edy
Instructed
by:
Bowman Gilfillan inc.
[1]
Labour Relations
Act 66 of 1995
.
[2]
See
Tadyn
Trading CC t/a Tadyn
Consulting Services v Steiner and Others (2014) 35 ILJ (LC) at para
10-11
;
Melikaya Lulumile Ralo v Transnet Port Terminals and Others
Case no: P136/2014 delivered on 17 June 2015;
Edcon
(Pty) Ltd v CCMA and Others: In re Thulare and Others v Edcon (Pty)
Ltd (2016) 37 ILJ 434 (LC) at paras 23-24.
[3]
Van Wyk v
Unitas Hospital and Another
[2007] ZACC 24
;
2008 (4) BCLR 442
(CC) at para 22;
Superb
Meat Supplies CC v Maritz
(2004) 25 ILJ 96 (LAC) at paras 19-23;
Edcon
(Pty) Ltd v CCMA
supra at para 26.
[4]
(2012) 33 ILJ 2847
(LAC).