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[2015] ZALCJHB 366
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University of South Africa v Tlou-Msiza (JR889/2010) [2015] ZALCJHB 366 (27 October 2015)
THE
LABOUR OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case No.: JR889/2010
In
the matter between:
UNIVERSITY
OF SOUTH
AFRICA
Applicant
and
MPITSENG
TLOU-MSIZA
Respondent
Held:
7 January 2014
Delivered:
27 October 2015
JUDGMENT
PILLAY,
AJ
[1]
This matter appeared before me as an
application in terms of Rule 11 of the Rules of this Court to dismiss
the review application
launched by the employee in May 2010.
[2]
The employee filed a supplementary
affidavit six months later. There was no record that was served on
the employer and/or filed
with this court.
[3]
The attorneys for the employer wrote to the
then attorneys for the employee indicating that the record had not
been served on them.
[4]
The employee served a transcript on the
employer’s attorney on 13 December 2010. However, as it turned
out, this record was
incomplete. There was further correspondence to
the employee’s new attorney. The new attorney responded by way
of letter
dated 27 January 2011 for the first time indicating that
the transcribed record was incomplete. There are three days of the
proceedings
that were not provided for by the CCMA. Enquiries were
made with the CCMA in an attempt to obtain the outstanding recordings
and
the handwritten notes taken by the arbitrator.
[5]
The employee’s attorney responded on
1 April 2011, indicating that they had contacted the CCMA in an
effort to obtain handwritten
notes and to ensure that the missing
record is reconstructed.
[6]
After further correspondence between the
attorneys, the employee’s attorney despatched a letter on 13
October 2011, which
communicated that the CCMA was not in a position
to provide the commissioner’s handwritten notes as they were
not available.
Unfortunately, the employer failed to provide the
employee with any handwritten notes.
[7]
Ultimately, a request was made to the CCMA
to set the matter down for reconstruction of the record. Following
several enquiries
from the employee’s attorney in an attempt to
have the matter set down for reconstruction, the matter was set down
for 20
November 2013. At this reconstruction meeting, it turned out
that the commissioner did, in fact, have his original handwritten
notes.
[8]
There were attempts made to consolidate the
notes and transcription. However, for various reasons, the employee
was unable to obtain
a full copy of the recording. It, therefore,
became necessary for the transcription of the arbitrator’s
handwritten notes.
[9]
I am informed that the complete copy of the
record would soon be available.
Law
[10]
A determination on whether an application
in terms of Rule 11 should be dismissed is an exercise of discretion.
There are various
factors to be taken into account in exercising this
discretion. This includes the delay in the prosecution, whether there
is a
reasonable explanation for the delay, the prejudice to the
parties and whether there are prospects of success in the main case.
[11]
The delays were occasioned by the CCMA
failing to provide a full record of the proceedings. It appears that
the CCMA further delayed
the process before an ultimate conclusion
that some of the evidence would not be available.
[12]
The employer has failed to address
prospects of success at all, which is a significant factor in the
exercise of my discretion.
If prospects of success are not canvassed,
it weighs heavily in favour of exercising the discretion by not
dismissing the main
application.
[13]
I pause to point out that, in addition to
failing to address the prospects of success, the employer itself has
not taken any steps
to aid in the process of ensuring that a full
record was available to this court.
[14]
In exercising my discretion, I must ensure
that there is fairness to both parties. Where the employer has failed
to allege and/or
demonstrate that there are no prospects of success
in the main application, I do not believe it would be fair to dismiss
the main
application. This is more so given that the employer itself
did not take any active steps in an effort to bring the proceedings
to a conclusion.
[15]
I am not inclined to dismiss the main
review application. While there has been a lengthy delay, the
employee has taken steps to
ensure that the matter is prosecuted. She
transcribed whichever portions of the record were made available to
her. She ensured
that a supplementary affidavit was filed. Large
parts of the delay were caused by the CCMA.
[16]
I am not inclined to dismiss the main
review application.
Order
[17]
In the circumstances, I make the following
order:
(a)
The application in terms of Rule 11 is
dismissed;
(b)
The employee is to file the full record
within five days of the handing down of this order, if it has not
done so;
(c)
The parties are then to proceed with the
filing of affidavits in terms of the Rules of this Court;
(d)
There is no order as to costs.
________________
Pillay, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
G Van Der Westhuizen
Instructed
by:
MacRobert Inc.
For
the Respondent:
Mr Molebaloa
Instructed
by:
MS Molebaloa Attorneys Inc.