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[2015] ZALCPE 62
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Ingquza Hill Local Municipality v South African Local Government Bargaining Council and Others (PR108/14) [2015] ZALCPE 62 (6 October 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: PR 108/14
In
the matter between
INGQUZA
HILL LOCAL
MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARBAINING
COUNCIL
First Respondent
VUYANI
NOSINDWA
N.O
Second Respondent
IMATU
obo MADIKANE, MANGCOTYWA
RHINI
and
QUMBA
Third Respondent
Heard:
6 October 2015
Delivered:
30 October 2015
Summary:
Having raised a point
in limine
of
lis alibi
pendens
,
the applicant could not launch an application for the dismissal of
the review application before the determination of the point
in
limine
.
JUDGMENT
LALLIE,
J
[1]
This is an application to dismiss the applicant’s review
application. The individual third respondents were employed by
the
applicant. They were dismissed for misconduct in 2009 and challenged
the fairness of their dismissals by referring separate
unfair
dismissal disputes to the first respondent. The second respondent
arbitrated their disputes and in April 2010, issued arbitration
awards in which he found their dismissals unfair and ordered the
applicant to reinstate them. The applicant filed separate review
applications to have each arbitration award reviewed and set aside.
The review applications were archived in November 2010 owing
to the
applicant’s failure to prosecute them. The third respondent had
the awards certified in terms of section 134 of the
Labour Relations
Act 65 of 1996 as amended (the LRA) in order to enforce them. On 22
May 2014, the applicant filed the present
review application seeking
an order reviewing and setting aside all for arbitration awards in
one application.
[2]
The third respondent opposed the review application and raised a
preliminary point of
lis alibi pendens (lis pendens)
on the
basis that it was impermissible for the applicant to launch the
present review application while the review applications
it filed in
2010 were still pending. In addition, the third respondent filed an
application for the dismissal of the review application
on the basis
that it was filed in order to delay the implementation of the
arbitration awards issued in favour of the individual
third
respondents. The applicant opposed the application for the dismissal
of the review application and argued that it was not
open to the
third respondent to apply for the dismissal of the review application
while its
lis pendens
preliminary point was pending.
[3]
I have considered the submissions and arguments on behalf of both
parties before me and am convinced that having raised a preliminary
point of
lis pendens
which may be dispositive of this matter,
there was a duty on the third respondent to ensure that, the
preliminary point was set
down and determined before the application
dismissing the review application was enrolled. This court has an
obligation to determine
the preliminary point which was raised by the
third respondent. The application to dismiss the review application
is premature
in the circumstances and has the effect of denying this
court of the opportunity to determine the preliminary point.
[4]
The applicant sought the dismissal of the application to dismiss its
review application with costs. I am not convinced that
dismissing
this application is the appropriate relief because the third
respondent should not be denied of the opportunity of applying
for
the dismissal of the review application at the appropriate time. I am
further not convinced that both the law and fairness
require that a
costs order be made against the third respondent. The applicant
contributed substantially to the filing of this
application as it has
for years prevented the individual third respondents from being
reinstated in terms of arbitration awards
issued in 2010.
[5]
In the premises, the following order is made:
5.1
The application to dismiss the review application under case number
PR 108/14 is struck
off the roll.
5.2
No order is made as to costs.
________________
Lallie, J
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant:
Advocate Matotie with Advocate Pango
Instructed
by:
Ximbi Ncolo Inc Attorneys
For
the Third Respondent:
Mr Heuer of
Minnaar Niehaus Attorneys