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[2017] ZALAC 61
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Takalasi v Metal and Engineering Industries Bargaining Council and Others (JA54/16) [2017] ZALAC 61 (18 October 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JA 54/16
In the matter between:
FREDERICK
TAKALASI
Appellant
and
METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL
First
Respondent
PEARL MBEKWA
NO
Second
Respondent
NICRO INDUSTRIAL
(PTY)
Third
Respondent
Heard:
16 May 2017
Delivered:
18 October 2017
Summary: The Labour
Court, in the absence of the applicant and an application for
condonation for the late delivery of the application
for the review
of an award,
mero mot
u granted condonation and reviewed and
set aside the award. Held that the Labour Court was not entitled to
consider an application
that was delivered out of time unless
condonation had been applied for and granted.
Coram: Tlaletsi AJP,
Landman JA and Kathree-Setiloane AJA
Neutral citation:
Takalasi v Nicro Industrial (Pty) Ltd
(LAC JA54/2016)
JUDGMENT
LANDMAN JA
[1]
Mr
Frederick
Takalasi, the appellant, a former employee of Nicro Industrial (Pty),
the third respondent, appeals against a judgment
of the Labour Court
(Fourie AJ) delivered on 7 July 2015 that reviewed and set aside an
award made by Pearl Mbekwa NO, the second
respondent acting under the
auspices of the Metal and Engineering Industries Bargaining Council,
the first respondent. The appeal
is with leave of the court
a
quo
.
The background
[2] The appellant was
employed by the third respondent. He suffered an injury that was not
work related. The medical practitioner
treating him recommended that
he be provided with light duties. On 3 February 2012. the appellant
left his workplace and referred
a dispute concerning his alleged
unfair dismissal to the relevant Bargaining Council. After an attempt
at conciliation, the dispute
was arbitrated. The arbitrator issued an
award on 22 October 2012 in which she found for the appellant and
awarded him compensation.
[3] The third respondent
was aggrieved by the award and launched an application to review and
set aside the award as well as an
application to stay the execution
of the award.
[4] The appellant opposed
the review application and brought an application in terms of Rule 11
to have the review application dismissed.
In this application, the
appellant avers that the review application was launched some
six-months late and that the third respondent
has not applied for
condonation for its failure to launch the application timeously.
[5] When the matter was
called in the court
a quo,
there was no appearance for the
third respondent. The appellant was in attendance. The court
a quo
decided to adjudicate the review application even though the third
respondent was not represented. The court
a quo
appreciated
that the review was brought out of time but said that the delay was
“slight” and
mero motu
condoned the lapse.
[6] The appellant’s
representative decided not to move the Rule 11 application. Instead,
the appellant’s representative
decided to argue the appellant’s
opposition to the review application. The court
a quo
, in an
ex tempore
judgment, found that the application was a good one
and set the award aside. This was not what the appellant desired;
hence this
appeal.
Evaluation
[7] When an application
is delivered late, a court has no jurisdiction to hear the matter
until the delay is condoned. In this case,
there was no application
for condonation. Any delay especially, if there was a six-month
delay, calls for a reasonable explanation
for the delay and for there
to be good prospects of success.
[8] The correct approach,
if the court had notice of the set down, would have been to hear and
decide the application in terms of
Rule 11 to dismiss the review
application for lack of prosecution.
[9]
In the absence of a consideration of the Rule 11 application, the
court should have struck the review application from the roll
with an
appropriate order as to costs. Alternatively, the court
a
quo
could
have “dismissed” the review application, with an
appropriate order for costs, provided it is made clear that the
dismissal of the application was not made on the merits.
[1]
[10] It follows that the
appeal must be upheld. The parties are free to enroll their
respective applications for hearing in the
Labour Court.
Costs of the appeal
[11] The appellant seeks
an order that the third respondent pays the costs of appeal. The
necessity for an appeal followed from
the appellant’s failure
to argue its Rule 11 application and its unsuccessful attempt at
persuading the court
a quo
to dismiss the review application
on its merits. In my view, the third respondent should not bear these
costs.
Order
[12]
I make the following order:
1.
The
appeal is upheld.
2.
The
order of the court
a
quo
is set aside and replaced by an order that reads:
‘
The
application to review and set aside the award of the second
respondent issued under case number MEGA35854 is struck from the
roll
with costs.’
3.
There
is no order for the costs of the appeal.
______________________
A A Landman
Judge of the Labour Court
Tlaletsi AJP and
Kathree-Setiloane AJA concur in the judgment of Landman JA
APPEAREANCES
FOR
APPELLANT: Ms Thandi Moyo of Snyman Attorneys
FOR
THE THIRD RESPONDENT: No appearances
[1]
See
PT
Operational Services (Pty) Ltd v RAWU obo Ngwetsana
[2013] 3 BLLR 225
(LAC); (2013) 34 ILJ 1138 (LAC).