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[2010] ZALCJHB 62
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General Industries Workers Union (GIWUSA) and Others Moulding Profiles (Pty) Ltd (JR2482/07) [2010] ZALCJHB 62 (20 August 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE NO: JR 2482/07
In the matter between:
GENERAL INDUSTRIES
WORKERS
UNION
(GIWUSA)
1
st
Applicant
BULELANI
MASANGWUANA
2
nd
Applicant
and
MOULDING
PROFILES (PTY) LTD
Respondent
JUDGMENT
LAGRANGE,
J
1.
This is an application to dismiss a review application.
2.
The second applicant was dismissed on 27 February 2007. On 3 August
2007, he was reinstated with retrospective effect to the
date of his
dismissal and was further awarded back pay for a period of six
months. The respondent launched an application to review
and set
aside the award on 15 October 2007, over 10 weeks later. No
application for condonation application has been filed in respect
of
the four week delay in filing the review application. The review
applications cites several grounds of review essentially attacking
the reasonableness of the award, but for the most part lacking in any
specific detail about which aspect of the award demonstrates
the
flaws complained of.
3.
On 25 January 2010, the applicants launched an application seeking
the dismissal of the review application and an order making
the award
an order of court. The reasons for this application are that:
4.
The rule 7A(2) and (3) notices were served on the parties towards the
end of 2007, but two years later the record of the arbitration
proceedings had not been filed.
5.
The applicant sent letters to the respondent on 26 November 2007 and
28 May 2008. The first reminded the applicant of its responsibilities
in prosecuting the review and asked to be advised of progress in
regard to filing the record. The second letter warning the
respondent
that unless it advised the applicant of the progress
in the matter, the applicants would institute an application to
dismiss the
review. Telefacsimile transmission slips indicate the
correspondence was sent to the respondent.
6.
In reply the respondent simply denies ever receiving the notices in
relation to Rule 7A(2) and (3). If further denies receiving
the
correspondence from the applicants’ attorneys. It provides no
explanation why it never received the documents.
7.
More importantly, the respondent provides no explanation whatsoever
as to what it did over a period of three years to pursue
the review
application. It is incomprehensible, if it had any serious intention
to pursue the matter that it would not have made
appropriate
enquiries at the CCMA or the Labour Court when it did not receive the
Rule7A(2) and (3) notices within a reasonable
time after it filed its
founding affidavit in January 2010. The only reasonable conclusion to
draw on the available evidence is
that, having filed the review
application, the respondent sat on its hands and did nothing to
advance the matter further. The most
reasonable inference to draw in
the circumstances was that the respondent filed the application as a
dilatory tactic without a
serious intention of bringing it to
finality, which amounts to an abuse of the review mechanism.
8.
The respondent also failed to attend the hearing of this application.
9.
Accordingly there is no reason to allow the respondent to proceed
with the review application.
Order
10.
In the circumstances, the following order is made:
10.1. The
respondent’s application to review and set aside the second
respondent’s
review award dated 3 August 2007 issued under CCMA
case number GAJB 9714-07 is dismissed.
10.2.
The said award is made an order of court.
10.3.
The respondent is to pay the applicant’s costs on an attorney
and own
client scale.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing:
20 August 2010
Date
of judgment: 20
August 2010
Appearances:
For
the Applicant : D Cartwright