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[2015] ZALCJHB 68
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Minister of Justice And Correctional Services v Mashiya and Others (J16/14) [2015] ZALCJHB 68 (5 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no:
J16/14
DATE:
05 MARCH 2015
Not
Reportable
In the matter between:
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES
.................................................................................................................................
Applicant
M.W. MASHIYA
(“EMPLOYEE”)
.............................................................................
First
Respondent
THE
SHERIFF
..........................................................................................................
Second
Respondent
THE GENERAL PUBLIC SERVICES SECTORAL
BARGAINING COUNCIL
(“GPSSBC”)
.................................................................
Third
Respondent
Heard: 31 October 2014
Delivered: 05 March 2015
Summary: Applicant failing to file the record
of arbitration proceedings within 60 days of the notice by the
Registrar that the
record has been filed. Failure to file record
within 60 days of Registrar’s notice deemed withdrawn clauses
11.2.2 and 11.2.3
Practice Manual.
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
This
is an interlocutory application in terms of which the applicant seeks
a declarator in the following terms:
‘
1. The
review application under this case number is not deemed to be
withdrawn;
2.
In
the event the event that this honourable Court finds that he review
application is deemed to be withdrawn, a failure by the applicant
to
comply with the rules and the practice manual is condoned;
3.
A
late filing of the record in supplementary affidavit filed in July
2014 is condoned.’
[2]
The
main application in this matter is the review application in terms of
which the applicant seeks to review an arbitration award
which was
made in favour of the first respondent (“the employee”).
[3]
The
applicant has also applied for condonation for the late filing of the
record and the supplementary affidavit.
[4]
The
arbitration award which was made in favour of the applicant was in
consequent of the unfair dismissal dispute, which the employee
had
referred to the third respondent (“the bargaining council”).
[5]
Initially,
the arbitration proceedings were conducted before arbitrator, Malebye
(“the first arbitrator”), during the
cause of the hearing
an application for his or her recusal was made. The application was
dismissed. The application for the recusal
seemed to have been
consequent a comment made by the first arbitrator that the employee’s
representative should stop irrelevant
questions.
[6]
After
listening to about seven witnesses, the first arbitrator recused
herself. And, thereafter, arbitrator Matlala (“second
arbitrator”) was appointed to hear the matter. It is apparent
that the second arbitrator proceeded with the matter from where
the
first arbitrator left it. In other words, the second arbitrator did
not start the proceedings
de
novo
.
[7]
The
review application under case number JR 2740/13 was launched during
December 2013. The Registrar in terms of the rules notified
the
applicant that the record was ready for collection on 26 February
2014. Thereafter, the applicant delivered the recording to
I-Africa
transcribers (Pty) Ltd (“I-Africa”) on 28 February 2014.
[8]
On
09 January 2014, Steenkamp J made an order on an urgent basis staying
the execution of the arbitration award pending the finalisation
of
the review application.
[9]
It
does not seem necessary for me to over burden this judgment with the
complex history of the litigation in this matter. The key
issue in
this matter is that it is common cause that there was a delay in the
filing of the record.
[10]
The
employee has raised the point that the review application be deemed
to have been withdrawn because the applicant failed to comply
with
the provisions of clause 11.2.2 and 11.2.3 of the Practice Manual of
the Labour Court which provides:
‘
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 received.
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,
unless
the applicant has during that period requested the respondent’s
consent for an extension of time and consent has been
given. If
consent is refused, the applicant may, on notice of motion supported
by affidavit, apply to the Judge President in chambers
for an
extension of time. The application must be accompanied by proof of
service on all other parties, and answering and replying
affidavits
may be filed within the time limits prescribed by Rule 7. The Judge
President will then allocate the file to a judge
for a ruling, to be
made in chambers, on any extension of time that the respondent should
be afforded to file the record.’
[11]
The
essence of the above sub-rules of the manual is that the record of
the arbitration proceedings in the review application has
to be filed
within 60 days of the Registrar advising of the arrival of the
record. Failure to file the record within the 60 days
will result in
the application been deemed to have been withdrawn.
[12]
Miss
Pillay, for the applicant, argued that the deeming provision of the
Practice Manual was not in congruent with the provisions
of the rules
and more importunately, it is in conflict with provisions of section
34 of the Constitution. It submitted, in this
regard, that the
deeming provisions of the practice manual take away the
constitutional right of access to court. In other words,
the deeming
provision has the effect of changing the substantive law. It is
further argued on behalf of the applicant that the
concept of “deemed
withdrawal” was equivalent to the matter being finally being
adjudicated upon or being judged.
Evaluation
[13]
In
terms of section 173 of the Constitution, the Labour Court like all
the other High Courts has the inherent power to protect and
regulate
its own process in the interest of administration of justice. The
interest of administration of justice in labour disputes
is
underpinned by need for expeditious dispute resolution as required by
the Labour Relations Act (“LRA”). The purpose
of the
Practice Manual is to address the delays in the prosecution of
matters before the Court to ensure efficient and speedy resolution
of
disputes.
[14]
The
competency and the legal force of provisions of Practice Manuals have
recently received attention in various judgments. In
Greenberg
v Khumalo and Others
,
Greenberg v Du Preez and Another
,
[1]
the
South Gauteng High Court, held that the words of the Practice Manual
contained a requirement additional to those of the relevant
rules was
procedural incompetent and had no legal force and effect. A different
approach to this was adopted by Wepener J, in the
South Gauteng High
Court in “In Re-several judgment on the urgent roll 18
September 2012. In disagreeing with the
Greenberg
case, the Court held that there was no prohibition against the Judge
President making rules in addition to those contained in the
relevant
rule.
[15]
The
status and the value of practice manual provisions is explained by
Sutherland J in
Le
Car Autotraders v Degswa
1038
CC and Others
,
[2]
in the
following terms:
‘
[29]
MR Omar invoked SGHC Practice Manual and brandished its provisions
with vigor, stressing the sanctity of its contents and alleging
that
it must be strictly adhered to. In doing so, he was mistaken. The
SGHC Practice Manual, introduced in 2009, serves a practical
purpose.
Its purpose and status are not matters which need to be guessed. Its
purpose and status are not matters which need to
be guessed. Chapter
one expressly states that its aim is to promote uniformity in the
functioning of the Court.’
[16]
I
do not agree with Miss Pillay that the provisions of the directives
of 11.2.2 and 11.2.3 of the practice manual has introduced
changes to
the substantive law. In my view, it is simply a procedural tool to
facilitate the management of a review application.
It does not trump
any of the rules of the Court. This being the case it then means a
party that fails to comply with the Practice
Manual is entitled to
apply for condonation for the non-compliance.
[17]
I
now turn to the application for condonation for the late filing of
the record by the applicant. The approach to adopt when dealing
with
the condonation application is now well established.
[18]
The
principles of condonation were established n
Melane
v Santam Insurance Co Ltd,
[3]
where
the Court held:
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefore, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated; they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent's interests in finality must not be
overlooked.’
[19]
The
applicant attributes the delay in the filing of the record to
I-africa According to it; it repeatedly enquired to I-Africa as
to
the progress of transcribing the record and was told it was not
ready. The employee contends that explanation for the delay
is not
truthful particularly when regard is had to the fact that the
applicant did not attach any supporting affidavit from the
person
that I-Africa had communicated with regarding the progress of
transcribing the record.
[20]
The
applicant claims that it has good prospects of success in the review
application particularly when regard is had to manner and
approach
adopted by the second arbitrator.
[21]
I
agree that the explanation proffered by the applicant is not
satisfactory. However, I find that it is compensated for by the
prospects of success. In this regard, it has not been disputed that
the second arbitrator, in his consideration of the dispute,
relied on
the evidence which was presented before the first arbitrator and not
him. It seems to me that there are excellent prospects
that on
review. In this regard it would appear that the Court is likely to
find that the approach adopted by the second arbitrator
amounted to
gross irregularity.
[22]
In
light of the above, I am of the view that the applicant’s
condonation application stands to succeed. I do not, however,
believe
that costs should be allowed to follow the result.
Order
[23]
In
the premises, the following order is made:
1.
The
review application is reinstated.
2.
The
condonation application for the late filing of the record and
supplementary affidavit is granted.
3.
There
is no order as to costs.
Molahlehi, J
Judge of the Labour Court Johannesburg
Appearances:
For the Applicant: L Pillay from The State Attorney Office in
Pretoria.
For the Respondent: Advocate Ndziba.
Instructed
by: Molebaloa Attorneys.
[1]
(22258/02, 23302/02) [2012]
ZAGPJHC 91 (11 May 2012) at para 24
.
[2]
(2011/47650)
(2012) ZAGPJHC286 (14 June 2012).
[3]
1962
(4) SA 531
(A) at 532C-E.