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[2016] ZALCJHB 51
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Edcon Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR941/14) [2016] ZALCJHB 51 (12 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case
No: JR941/14
In
the matter between:
EDCON
LIMITED
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
VIVI MASINA,
N.O.
Second Respondent
SIMANGELE
YVONNE SEKGOBELA
Third Respondent
Heard:
03 September 2015
Judgment
:
12 February 2016
Summary:
Application to dismiss an application for review on account of delays
in its prosecution; Explanation
for the delay wholly unsatisfactory;
Application for review dismissed with costs.
JUDGMENT
VOYI
AJ.
[1]
The Third Respondent (“
the
employee
”) was dismissed by the
Applicant (“
Edcon
”)
on or about 21 January 2014. She challenged her dismissal before the
First Respondent (“
the CCMA
”)
and an arbitration award reinstating her with back pay was ultimately
issued by Commissioner Vivi Masina (“
the
Commissioner
”) on or about 29
April 2014.
[2]
Being
discontent with the Commissioner’s award, Edcon launched an
application for review in terms of section 145 of the Labour
Relations Act.
[1]
The
application for review was instituted on or about 9 June 2014.
[3]
After the launching of the review in June
2014, Edocon took no steps whatsoever to prosecute the review. This
resulted in the employee
launching an application to dismiss the
review application on account of Edcon’s non-compliance with,
inter
alia
, the
relevant provisions of Rule 7A of the Labour Court Rules.
[4]
In
addition to the dismissal of the review, the employee also seeks an
order making the arbitration award an order of court as envisaged
by
section 158(1)(c) of the LRA.
[2]
[5]
Before me is the application to dismiss and
to also make the arbitration award an order of court. The present
application is opposed
by Edcon. It would appear that the
matter was being handled internally within Edcon throughout. At the
hearing of the application
to dismiss, Edcon was represented by Mr H
Nieuwoudt of Norton Rose Fulbright SA.
[6]
Understandably, there was not much that Mr
Nieuwoudt could say in resisting the application as he came on record
in this matter
shortly before it was heard before this Court.
[7]
As stated herein above, the application for
review was launched on or about 9 June 2014. Within a few days later
and on 17 June
2014, the CCMA filed with the Registrar of this Court
the record of the arbitration proceedings.
[8]
The CCMA’s notice of compliance with
Rule 7A(3) of the Labour Court Rules lists the documents forming part
of the record delivered.
Included in the list is one (1) compact
disc. On or about 18 June 2014, the Registrar of this Court
efficiently notified Edcon
of the availability of the record as
follows:
‘
1.
This serves to notify you in terms of Rule 7A(5) of the Labour Court
rules that the CCMA/ Bargaining
Council have delivered the Records at
the Office of the Registrar of this Court.
2.
You are hereby called upon to come and collect same within 7 days
from the date of this letter,
failing which the Registrar shall
thereafter return them back to the CCMA / Bargaining Council, which
could in turn, unnecessarily
delay the hearing of your case
.’
[9]
Quite significant to this matter, Edcon
never bothered to uplift the record from the Registrar as envisaged
by Rule 7A(5) of the
Labour Court Rules. The record filed by the CCMA
is still intact in the court file and was also never returned to the
CCMA as intimated
in the above notification.
[10]
The application to dismiss was launched on
or about 08 October 2014, after a period of almost four (4) months
had elapsed with no
tangible steps being taken by Edcon to prosecute
the review. After the application to dismiss was launched, Edcon was
quick to
deliver its notice of intention to oppose and answering
affidavit. These were delivered well within October 2014.
[11]
Even when faced with an application to
dismiss its review, Edcon still took no steps whatsoever to prosecute
the review. The
explanation for the delay is quite bizarre.
Edcon admits to having received the CCMA’s notice of
compliance with
Rule 7A(3). The deponent to Edcon’s answering
affidavit, however, proffers the following justification for the
delay in prosecuting
the review:
13.1
‘…
had
the Third Respondent bothered to enquire about alleged delays from
[Edcon], they would have found out that [the deponent] was
out of the
country at the time on holiday in Brazil to watch the Fifa Soccer
World Cup. See email confirmation marked “ED1”.
My
holiday began on 10 June 2014 and I returned to the South Africa on
or about 25 June 2014. I was due to return on 29 June 2014
but I cut
my trip short in order to return to work and attend to the
outstanding matters, and also in anticipation of my wife going
into
labour with our first child in the beginning of July. Upon my return
to office on 26 June 2014 I discovered that the record
was ready for
collection at the Labour Court. The following day on 27 June 2014 the
record was indeed uplifted and collected.’
[3]
13.2
‘
On
4 July 2014 whilst still in the process of attempting to sort out the
transcription with the transcribe, my wife went into labour
and
delivered the most amazing baby boy. I was on maternity leave during
this time and would return to work after a couple of days.
However,
during my wife delivery there were complications as a result of a
medical condition which forced her to remain in hospital
for weeks on
end intermittently. This added a lot of stress and unavailability of
my part in terms my (sic) commitments at work.
I would have to be
looking after the baby and caring for my wife during this period upon
release from hospital which has led neglecting
(sic) of work, I
sincerely apologise for my part in failing to attend to delivery of
the record within a reasonable time’
[4]
[12]
The
deponent proceeds further and apportions blame on the employee and
her attorneys. It is even suggested in the answering affidavit
that
the employee’s attorneys have ‘…
not
once communicated with [Edcon] to push for the delivery of the
record
.’
[5]
[13]
In conclusion, Edcon’s answering
affidavit remarks that this Court should dismiss the application by
the employee, with costs,
on account of her failure to engage Edcon
‘…
to encourage
prosecution
…’ of the
review.
[14]
Based the material before me, it is not
correct that Edcon ‘uplifted and collected’ the record
from the Registrar of
this Court. As stated herein before, the record
is still part of the Court file. The alleged attempts to transcribe
the recordings
of the arbitration proceedings were made before the
launching of the review. They are, accordingly, no attempts to
prosecute the
review following its delivery.
[15]
It is nowhere mentioned in the answering
affidavit as to why Edcon has not complied with Rule 7(6) of the
Labour Court Rules. At
paragraph 13 of Edcon’s answering
affidavit, the deponent thereto advances the following shocking
proposition:
‘
In
terms of the Rule 7A (6) of the Rules of the Labour Court the
Applicant must furnish the registrar and each of the other parties
with a copy of the record or portions of the record as the case may
be.
No time is prescribed in terms of
this Rule as to when this ought to occur
.’
[
own emphasis
]
[16]
I
do not hesitate to find that no reasonable explanation has been
advanced by Edcon as to the cause of the delay in prosecuting
the
review. The explanation tendered is superficial, unacceptable and
wholly unsatisfactory. In
Moraka
v National Bargaining Council for the Chemical Industry and
Others
,
[6]
this Court held as follows:
‘
A
party defending itself against an application to dismiss a review on
account of undue delay is effectively asking the court to
condone its
dilatoriness and similar considerations which apply to the evaluation
of applications for condonation ought to be relevant
in the
evaluation of these applications.’
[17]
In the present matter, Edcon opted not to
deal at all with its prospects of success in the review. At paragraph
25 of Edcon’s
answering affidavit, the following is stated:
‘
The
relief sought in the notice of motion will be further considered in
the main action but I wish to record that the merits of
the main
action as delay with by the [employee] in this application need not
be dealt with at this stage.’
[18]
Not only is there no reasonable explanation
for the excessive delays in prosecuting the review application, the
merits of the review
itself are not even addressed.
[19]
The prejudice to the employee on account of
Edcon’s delay is glaringly obvious and cannot be overlooked.
[20]
The
power and authority of this Court to dismiss a case on account of
delays in its prosecution was, recently, affirmed by the
Constitutional Court in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others.
[7]
[21]
The
relevant principles for consideration when dealing with applications
to dismiss proceedings on account of delays in their prosecution
were
extensively dealt with by this Court in
Sishuba
v National Commissioner of the SA Police Service.
[8]
[22]
The overriding considerations in the
present matter weigh heavily in favour of the dismissal of the
review. I also find that a case
has been made out for the arbitration
award to be made an order of court as contemplated by section
158(1)(c) of the LRA.
[23]
With the review application not having been
prosecuted as required by the Labour Court Rules, there is no
hindrance to this Court
making the arbitration award an order of
court.
[24]
In conclusion, nothing prevents me from
concluding that the application for review was simply launched as a
stratagem to frustrate
compliance with the Commissioner’s
arbitration award. The employee is being severely prejudiced in the
process.
[25]
There is absolutely no explanation as to
why Edcon failed to prosecute the review. The purported explanation
is nothing but a daring
and disdainful disregard of the Labour Court
Rules.
[26]
A punitive costs order against Edcon is,
therefore, warranted under the circumstances.
Order
[27]
I, accordingly, make the following order:
27.1
The application for review launched by Edcon Limited on or about 9
June 2014
under case number JR941/14 is hereby dismissed.
27.2
The arbitration award
issued by Commissioner Vivi Masina on 29 April 2014 under
case number
GAJB 2489-14 is hereby made an order of court in terms of
section
158(1)(C)
of the
Labour Relations Act, No. 66 of 1995
as amended.
27.3
Edcon Limited is ordered
to pay the Third Respondent’s costs in respect of
both the
application for review and the present application on an
attorney-and-client scale.
_________________________________
NP
Voyi
Acting
Judge of the Labour Court of South Africa
Appearance:
For
the Applicant:
Mr H Nieuwoudt
(attorney) of Norton Rose Fulbright SA
For
the Third Respondent: Advocate ZQ Majenge
Instructed
by:
TB Mtholo Attorneys
[1]
Act
No. 66 of 1995 (“
the
LRA
”).
[2]
Section
158(1)(c) reads as follows:
“
The
Labour Court may –
(a)
…
(b)
…
(c)
make any arbitration award …an order of the Court
.”
[3]
Answering
Affidavit, at p. 61, para 10.
[4]
Ibid
,
para 15.
[5]
Ibid
,
p. 63, para 17.
[6]
(2011)
32
ILJ
667 (LC) at para 20.
[7]
(CCT
228/14)
[2015] ZACC 557
(15 December 2015).
[8]
(2007)
28
ILJ
2073
(LC). See also:
BP
Southern Africa (Pty) Ltd v National Bargaining Council for the
Chemical Industry & Others
(2010)
31
ILJ
1337 (LC);
Moraka
v National Bargaining Council for the Chemical Industry and
Others
(
supra
)