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[2016] ZALCPE 11
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Butana v South African Local Government Local Government Bargaining Council and Others (P79/13) [2016] ZALCPE 11; [2016] 5 BLLR 469 (LC) (26 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
Of
interest to other judges
C
ase
no: P 79/13
In
the matter between:
TRAYISHILE BUTANA
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL
First
Respondent
NALEDI
BURWANA-BISIWE (
N.O.
)
Second Respondent
AMATHOLE DISRICT
MUNCIPALITY
Third Respondent
Heard
:
24 February 2016
Delivered
:
26 February 2016
Summary
:
(Dismissal of review-non-compliance with practice manual-belated
application for condonation – no
grounds of review revealed on
pleadings – on holistic consideration of relevant factors
review application dismissed)
JUDGMENT
LAGRANGE
J
Introduction
[1]
In this matter, the applicant was a plumber
working for the respondent municipality. On 17 June 2013 the second
respondent, an arbitrator
of the SALGBC found his dismissal was
substantively and procedurally fair. She confirmed his dismissal
effectively for not taking
appropriate measures to safeguard vehicles
under his control on two occasions.
[2]
His original attorneys of record timeously
launched a review application by 6 August 2013. A record of the
proceedings was lodged
by the bargaining Council and his attorneys of
record were notified that the record could be uplifted for
transcription on 14 August
2013. Although the applicant himself
claims he was not aware of this notice, there is good reason to
believe that his attorneys
did receive it as the evidence shows that
arrangements were made to have the record transcribed in September
2013. He was represented
by those attorneys until the end of November
2013.
[3]
For reasons which are not entirely clear
his original attorney of record could no longer represent him at that
stage and the matter
was referred to another firm of attorneys, but
they also declined to pursue the matter and the matter was then sent
to his current
attorney of record with Hendry first consulted on 27
February 2014. It appears that he did not have funds to pursue the
matter
at that point and his attorney undertook to approach the
applicant’s former union to see if they would finance the
matter.
[4]
However this was only done in June 2014
after his attorney had left the employment of the firm he was working
with and had started
to work for his own account in May. There is a
delay of some four months between the time that his attorney took
over his matter
and before he acted upon it. The explanation provided
was that in the course of leaving his former firm he was extremely
busy winding
up matters that were to remain with his former employer
and starting his new practice. His attorney also contacted the
applicant’s
legal insurance scheme but did not receive any
response from them at that time.
[5]
What appears to have jolted his attorney
into action was the filing of the employer’s application to
dismiss the review application
on 14 August 2014. On 28 August 2014
his attorney notified the third respondent’s attorneys that the
applicant wished to
pursue his review application and asked them to
consent to the withdrawal of the dismissal application for which the
applicant
tendered the wasted costs. The municipality was not willing
to withdraw the application but was prepared to grant the applicant
a
short indulgence to file his opposing affidavit in the dismissal
application.
[6]
On 29 August 2014, the day after requesting
the municipality to withdraw the dismissal application, the
applicant’s attorney
contacted the transcription service and
discovered for the first time that in fact the record had already
been transcribed and
paid for by the applicant’s original
attorneys. The applicant had never been billed for the transcription
and it would appear
that possibly this cost had been borne by his
legal insurer. The applicant’s attorney then followed up his
previous correspondence
with the municipality’s attorneys on 2
September 2014 and conveyed the fact that the transcript was now
ready to be filed
and repeated the request to the municipality to
withdraw the dismissal application. He also undertook to shortly file
a supplementary
affidavit. The municipality nevertheless confirmed
that it would pursue the dismissal application.
[7]
On 23 October 2014, the municipality filed
its replying affidavit. In the replying affidavit, it was pointed out
that the documentary
exhibits still had to be filed and pertinently
drew the applicant’s attention to the provisions of the
practice manual and
his failure to file a supplementary affidavit in
terms of rule 7A(8). The municipality also drew his attorney’s
attention
to the requirements of the practice manual in terms of
which a matter is deemed to have lapse if the record has not been
filed
within 12 months of review proceedings commencing.
[8]
Although the applicant undertook to file
his supplementary affidavit in 2014, for reasons which are unclear,
this was only done
barely a fortnight before this hearing in February
2016, without seeking any condonation for his inordinate delay in
doing so.
However, on 28 October 2014 he did file an application to
condone the late filing of the transcribed record and sought to
reinstate
the review application. As far as the court was aware this
matter had not been enrolled for the hearing before me. However, it
emerged that even though neither of the parties appeared to have
received notices of set down, that the review application and the
applicant’s condonation application for the late filing of the
record on 24 November 2015 and 2 December 2015 respectively
had also
in fact been set down for hearing on 24 February 2016.
[9]
Clearly, the applicant failed to seek any
indulgence from the court or from the respondents to extend the time
period for filing
a record and the time for taking such a step in
terms of paragraph 11.2.3 of the practice manual has long passed. In
terms of that
provision, the application was deemed withdrawn in the
absence of such indulgence. In terms of paragraph 16.1 of the
practice manual,
a matter is also archived if no further steps have
been taken to prosecute a review application for a period of six
months. A party
that wishes to revive the matter must make an
application on notice of motion in terms of paragraph 16.3 of the
manual for the
file to be retrieved.
[10]
This
the applicant only did after receiving the replying affidavit in the
dismissal application. By that stage the transcript of
the review
application had been filed but not the bundle of documents, so the
record was still not complete when the respondents
filed their
answering affidavit in the condonation application. The condonation
application provides no new details to explain
why the practice
manual was not complied with, although
Mr
Grobler
appearing
for the applicant gamely suggested that in the past the court might
have allowed the review application to proceed and
that it took a
while for parties to absorb the changes in practice. However, no
explanation appears on the papers from the applicant’s
attorney
why he was ignorant of the practice manual, or why no steps had been
taken by him to acquaint himself with the rules and
directives
applicable in the Labour Court, which would be expected of a
professional who is litigating in an unfamiliar forum,
if indeed that
was the case. At this juncture, it is perhaps appropriate to mention
that to date, the reported judgements of this
court show that the
practice manual is considered a directive, which parties are expected
to comply with, and is not regarded a
mere guideline.
[1]
[11]
It was correctly submitted by
Mr
Grogan
, who appeared for the third
respondent, that this that if the court dismissed the third
respondent’s dismissal application,
that would effectively
dispose of the need to consider the applicant’s condonation
application to revive the review, especially
in the light of the fact
that the condonation application contained no new information which
was not already canvassed in the dismissal
application.
[12]
I should mention that in so far as the
review application had been set down before today’s hearing,
because the applicant
left the filing of the 7A(8) notice so late
that the last day for filing an answering affidavit is the day after
today’s
hearing and pleadings in the review application could
have been not timeously close before today’s hearing. To date,
no condonation
application explaining why it took over a year to file
this notice, which also did not advance any additional grounds of
review,
has been filed.
[13]
Obviously, because I am effectively
considering whether there are good grounds for reviving the review
application and not dismissing
it, regard must be had to the
applicant’s prospects of success if he proceeds with his new
application. He was found guilty
of two incidents in which a Council
vehicle was exposed to risk. The arbitrator’s concluding
observations in this regard
read:
“
24.
The applicant acknowledges that for both he incidents of 14 February
and zero 2 March 2012 he had an ADM vehicle which he had
parked on
private premises. On both incidents vehicles were not parked under
lock and key facilities, neither were they parked
on ADM or
government property. On both incidents the vehicles were parked in
the open, private property was no person in attendance.
25. By the applicant’s
own admission, in one of the vehicles the windows and doors are not
locked due to the closing and locking
mechanisms not working. He
claims to have reported that matter but did not produce any proof to
that effect. In both incidents
the vehicles were accessed with years
with no the preventing such access, to an extent that on 02 March the
vehicle was even towed
away by the police was not even an alarm been
raised by the applicant or anybody he might have trusted the vehicle
to.
26. This sufficiently
proves the fact that the applicant had violated the management policy
of the ADM on the safekeeping of the
vehicles he was entrusted with
an even endangered the safety and exposed them to threat.”
[14]
Having read the record, it is apparent that
much of the applicant’s defence focused on attempting to
demonstrate that more
serious conduct involving vehicles went
unpunished or that fleet management policy should have been invoked
instead of or before
any disciplinary action was taken. Very little
of his own version about what transpired on each of the occasions in
question was
clearly put to the employer’s witnesses.
[15]
In any event, the applicant’s
supposed grounds of review which are set out in his founding
affidavit simply dispute the correctness
of some of the findings that
the arbitrator reached and contend that she failed to take into
account certain mitigating evidence.
The grounds of review are
essentially grounds of appeal. As stated, the factual allegations he
makes, do not even reveal any
prima
facie
basis for a review based on
irregularity, unreasonableness or acting in excess of powers. As
such, they do not reveal that on his
own version the applicant has
made out a case on review. In this regard, it can be mentioned that
in the belated supplementary
affidavits for which condonation is
still sought, these inadequate grounds were not augmented or amended
in any way. As such, it
appears to me that it would be an exercise in
futility for this matter to proceed further with both parties
incurring additional
costs only to confront the fact that the
founding papers do not reveal grounds of review at some later date.
[16]
On the question of costs, simply because I
believe that the applicant himself would not have been aware of the
inadequacy of his
application or the steps necessary to redeem it, I
do not believe it would be equitable to burden him with the costs of
the matter.
Order
[17]
In light of the above,
17.1
the applicant’s review application is
dismissed, and
17.2
the parties must bear their own costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
Grobler instructed by Sharp Attorneys
THIRD
RESPONDENT:
J
Grogan SC, instructed by Wesley Pretorius & Associates.
[1]
See
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner & others
(2014) 35 ILJ 1672 (LC)
and
Ralo
v Transnet Port Terminals & Others (2015) 36 ILJ 2653 (LC)