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[2016] ZALCJHB 66
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South African Municipal Workers Union (SAMWU) obo Tafu v Mogale City Local Municipality and Others (JR2959/12) [2016] ZALCJHB 66 (16 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR 2959/12
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
(SAMWU obo
TAFU)
Applicant
and
MOGALE
CITY LOCAL
MUNICIPALITY
First Respondent
COMMISSIONER
M.L
MATLALA
Second Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
Heard:
16 June 2015
Delivered:
16 February 2016
Summary:
The Practice Manual of the Labour Court of South Africa came into
effect on 2 April 2013. It is not retrospective and does
not apply to
review applications filed before its commencement date.
JUDGMENT
LALLIE,
J
[1]
The individual applicant (“the applicant”) was an
employee of the first respondent. Pursuant to his dismissal, he
referred an unfair dismissal dispute to the third respondent. The
second respondent arbitrated the dispute and issued, on 5 November
2012, an award in which he found the applicant’s dismissal
substantively and procedurally unfair; and ordered that he be
reinstated. On 11 December 2012, the first respondent launched an
application to review and set aside the arbitration award. On
25 July
2014, the applicant, being of the view that the first respondent was
dilatory in prosecuting the review application, served
and filed an
application for an order in the following terms:
‘
1
That the first respondent’s review application filed in the
matter is deemed
to have been withdrawn and/or has lapsed for non
compliance with the provisions of clause 11.2 of the Practice Manual
of the Labour
Court of South Africa which became effective on 1 April
2013.
Alternatively
2
An order compelling the first respondent to file the record in the
review
application within 5 days of the court order.
3
In the event that the first respondent failed to comply with
paragraph 2
above, the applicants can approach the court on the same
papers, supplemented by a supplementary affidavit as may be
necessary,
for an order dismissing the review application, with
costs.
4
An order in terms of
s 158
(1) (c) of the
Labour Relations Act 66 of
1995
making the award issued by the third respondent under case
number GPD080923 and dated 5 November 2012, as varied, an order of
court.
5
Further and/or alternative relief.
6
Costs of suit.’
[2]
On 21 October 2014, the first respondent filed its answering
affidavit opposing the dismissal application. The answering affidavit
was filed 50 days late. On 22 October 2014, the applicant objected to
the late filing of the answering affidavit. The dismissal
application
was set down for 18 June 2015. Just before the matter was argued, the
first respondent filed an application for condonation
of the late
filing of the answering affidavit. As the first respondent filed the
record after the dismissal application had been
filed, the applicant
sought only the order that the review application be deemed to have
been withdrawn and/or has lapsed for non-compliance
with provisions
of clause 11.2 of the Practice Manual of the Labour Court of South
Africa (“the practice manual”).
[3]
The reason advanced, on behalf of the first respondent, for the late
filing of the answering affidavit is that Mr Skhosana (Skhosana),
the
attorney to whom the first respondent’s file was initially
allocated resigned with immediate effect in December 2014.
The
deponent to the founding affidavit of the condonation application, Mr
Phungo (Phungo), of the firm of attorneys representing
the first
respondent, submitted that around the beginning of November 2014, he
instructed Skhosana to prepare the condonation application.
He
discovered, in June 2015, that Skhosana had not carried out his
instructions. He drafted and filed it on 18 June 2015. When
Phungo
instructed Skhosana to file the condonation application, the
answering affidavit was either due or already overdue. Phungo
gives
no reason for not establishing shortly after Skhosana’s
resignation whether he had filed the condonation application.
His
omission of the date, on which he discovered that the condonation
application had not been filed in June 2015 has the effect
of
concealing the extent of the delay.
[4]
The approach of dealing with attorneys who do not comply with Rules
of Court is expressed as follows in
Grootboom
v NPA:
[1]
‘
The language
used in both
Van
Wyk
and
Ethekwini
is unequivocal. The warning is expressed in very stern terms. The
picture depicted in the two judgements is disconcerting. One
gets the
impression that we have reached a state where litigants and lawyers
disregard the Rules and directions issued by the Court
with
monotonous regularity. In many instances very flimsy explanations are
proffered. In others there is no explanation at all.
The prejudice
caused to the Court is self -evident. A message must be sent to
litigants that the Rules and the Court’s directions
cannot be
disregarded with impunity.’
[5]
The explanation proffered by the first respondent for filing its
answering affidavit late is flimsy and unreasonable. The delay
caused
prejudice to the Court in that the condonation application was filed
on the date that the matter was set down for hearing.
It makes
mockery of the requirement, in the first respondent’s notice of
motion that the applicant should file the opposing
affidavit within
10 days. Absent a reasonable explanation for the delay, the
condonation application cannot succeed.
[6]
The applicant elected to base its application on the provisions of
clause 11.2 of the Practice Manual. The directives in the
Practice
Manual came into effect from 2 April 2013. Its application is not
retrospective. The provisions of the practice manual
do not apply to
the review application which the applicant seeks this court to
dismiss as it was filed on 11 December 2012. The
application for
dismissal can, therefore, not succeed.
[7]
In the premises, the following order is made:
7.1
The application for condonation of the late filing of the answering
affidavit is dismissed.
7.2
The application is dismissed.
____________
Lallie, J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate Navsa
Instructed
by:
Cheadle Thompson and Haysom Inc
For
the First Respondent: Advocate Sibuyi
Instructed
by:
Phungo Incorporated
[1]
[2014] 1 BLLR 1
(CC) at para 34.