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[2015] ZALCPE 69
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Ralo v Transnet Port Terminals and Others (P136/2014) [2015] ZALCPE 69; [2015] 12 BLLR 1239 (LC); (2015) 36 ILJ 2653 (LC) (15 June 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case no: P136/2014
DATE: 17 JUNE 2015
Reportable
In the matter between:
M ELI KAY A LULUMILE
RALO
...................................................................................
APPLICANT
And
TRANSNET PORT
TERMINALS
…...................................................................
1ST
RESPONDENT
TRANSNET BARGAINING
COUNCIL
.............................................................
2ND
RESPONDENT
LEANNE SCHEEPERS AH SHENE
N.O
.............................................................
3rd
RESPONDENT
Heard: 15 June 2015
Delivered: 17 June 2015
VAN NIEKERK J
Introduction
[1] This is an application to review
and set aside an arbitration award issued by the third respondent,
who upheld the applicant’s
dismissal by the first respondent.
Tw preliminary points raised by the first respondent were argued
separately on 15 June 2015.
These relate to the applicant’s
failure to comply with the provisions of the practice manual, and the
application to condone
the late filing of the review application.
[2] After hearing argument, I ordered
that the review application be struck from the roll, with no order as
to costs. These are
my reasons for that order.
[3] After the application for review
was filed, the applicant was notified by the registrar on 21 July
2014, in a letter dated 16
July 2014, that the record of the
proceedings under review was available.
[4] The consolidated practice manual,
which came into effect on 2 April 2013, provides in relation to
review applications that 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 (see
clause 11.2.2). Clause 11.2.3 reads:
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withdrawn the application,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 the extension of
time and consent has
been given. If consent has been refused, the
applicant may, on notice of motion supported by affidavit, apply to
the Judge President
in chambers for an extension of time...
[5] The applicant filed part of the
record on 19 November 2014. The balance of the record appears to have
been filed during December
2014. It is common cause that the record
was filed outside of the 60-day period established by the practice
manual and that no
extension of that period was either sought or
granted.
[6] The first respondent contends that
in these circumstances, there is no longer a lis between the parties
because in terms of
paragraph 11.2.3 of the practice manual, the
applicant is deemed to have withdrawn the application.
[7] The applicant has not filed any
application in which he seeks condonation for the late filing of the
record. He contends that
the practice manual is neither binding nor
irrevocable; it serves only as a guideline. The applicant submits
that he has not withdrawn
the application, that the dispute between
the parties remains unresolved. He also avers that a delay of less
than a month is not
substantial, that the reason for the delay was
his financial constraints, and that the first respondent has not
demonstrated any
prejudice that it has suffered on account of the
late filing of the record.
[8] The status of the practice manual
was discussed by this court in Tadyn Trading CC t/a Tadyn Trading
Consulting Services v Steiner
& others (2014) 35 ILJ 1672 (LC).
The court said the following, at paragraph 11 of the judgment:
The correct approach, in my view, as to
the force and effect of practice directives similar to the one in
issue is the one adopted
in In re Several Matters on the Urgent Roll
in which the court had to consider the force and effect of the
provisions of the practice
manual chapter 9.24 of the South Gauteng
High Court regarding the failure by the applicant to set out the
explicit circumstances
which rendered the matter urgent. The court
held that in law the Judge President was entitled to issue practice
directives relating
to the procedure of setting down matters on the
roll.
[9] I agree. The practice manual
contains a series of directives, which the Judge President is
entitled to issue. In essence, the
manual sets out what is expected
of practitioners so as to meet the imperatives of respect for the
court as an institution, and
the expeditious resolution of labour
disputes (see paragraph 1.3). While the manual acknowledges the need
for flexibility in its
application (see paragraph 1.2) its provisions
are not cast in the form of a guideline, to be adhered to or ignored
by parties
at their convenience.
[10] To the extent that the applicant
contends that the meaning of the word ‘deemed’ is such
that the dispute between
the parties remains unresolved and that the
application has not been withdrawn, the meaning of ‘deemed’
in a context
similar to the present has been the subject of an
instructive judgment by the Labour Court of Namibia. While Municipal
Council
of the Municipality of Windhoek v Marianna Esau (LCA 25/2009,
12 March 2010) concerned the lapsing of appeals, the wording of the
Rule under consideration in that instance is not dissimilar. Rule
17(25) of the Rules of the Labour Court of Namibia provide that
an
‘appeal to which this Rule applies must be prosecuted within 90
days after the noting of such appeal, and unless so prosecuted
it is
deemed to have lapsed.’ The word ‘deemed’ in this
instance was clearly considered to have conclusive effect
- in the
absence of the prosecution of the appeal within the prescribed period
the appeal was held to have lapsed. (See also Pereira
v Group Five
(Pty) Ltd and others
[1996] All SA 686
, at 698, where the court
referred with approval to Steel v Shanta Construction (Pty) Ltd
1973
(2) SA 537
(T), in which Coetzee J stated that the word ‘deemed’
means ‘considered’ or ‘regarded’ and is
used
to denote that ‘something is a fact regardless of the objective
truth of the matter’.) The plain and unambiguous
wording of the
practice manual is to the effect that the applicant must be regarded
as having withdrawn the review application.
[11] To the extent that the applicant
contends that he will suffer prejudice on account of any application
of paragraph 11.2.3 of
the practice manual and that he will be
deprived of his right to access to court and to have his application
fully ventilated,
this is simply not so. The proper order, it seems
to me, in circumstances such as the present, is to strike the review
application
from the roll. There is no bar, either in the Rules of
this court or the practice manual to the applicant filing an
application
in which he seeks to have the review application
reinstated, together with an application in which condonation for the
late filing
of the record is sought.
[12] Mr. Kroon, who appeared for the
first respondent, charitably did not press for an order for costs
against the applicant on
the basis that the failure to comply with
the practice manual and to prosecute the review with due diligence
was that of the applicant’s
attorneys and not the applicant
himself.
[13] For the above reasons, the review
application was struck from the roll. It was not necessary in the
circumstances to consider
the applicant’s application to amend
the notice of motion (in which he effectively sought a postponement
of the proceedings),
the application to condone the late filing of
the review application or the first respondent’s point in
limine to the effect
that the review application stands to be
dismissed in the absence of the full transcribed record.
ANDRE VAN NIEKERK JUDGE OF THE
LABOUR COURT
REPRESENTATION
For the applicant: Adv. Mey,
Instructed by Michael Randall
Attorneys
For the first respondent: Adv. P
Kroon,
Instructed by Me Williams Elliott
Inc.