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[2016] ZALCPE 24
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South African Municipal Workers Union obo Mlalandle v South African Local Government Bargaining Council and Others (PR115/15) [2016] ZALCPE 24; [2017] 1 BLLR 99 (LC); (2017) 38 ILJ 477 (LC) (2 November 2016)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: Pr115/15
SOUTH AFRICAN
MUNICIPAL WORKERS UNION obo
NOMAVA
MLALANDLE
Applicant
And
THE SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL
First Respondent
NIEL A PAULSEN N.
O
Second Respondent
NELSON MANDELA BAY
METROPOLITAN MUNICIPALITY
Third Respondent
Heard
on: 27 October 2016
Delivered:
02 November 2016
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The Applicant
approached the Court in terms of the provisions of section 145 of the
Labour Relations Act, to seek an order reviewing
and setting aside an
arbitration award issued by the Second Respondent on 28 March 2016.
In the award, it was found that the dismissal
of Mlalandle fair. The
application is opposed by the Third Respondent. There are also two
preliminary points before the court,
of which only one will be dealt
with.
[2]
The review application
was launched outside of the time periods stipulated in section 145
(1) of the LRA. The Applicant sought condonation
in that regard. This
judgment however is not concerned with that application.
[3]
It was common cause
that the Applicant had not complied with the provisions of clause
11.2 of the consolidated Practice Manual of
this Court, which provide
as follows;
“
11.2
Applications
to review and to set aside arbitration awards and rulings
11.2.1
Once the
registrar has notified an applicant in terms of Rule 7A (5) that a
record has been received and may be uplifted, the applicant
must
collect the record within seven days.
11.2.2
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.
11.2.3
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will be deemed to have withdrawn the application,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 an extension of time and consent has been
given. If
consent is refused, the applicant may, on notice of motion supported
by affidavit, apply to the Judge President in chambers
for an
extension of time. The application must be accompanied by proof of
service on all other parties, and answering and replying
affidavits
may be filed within the time limits prescribed by Rule 7. The Judge
President will then allocate the file to a judge
for a ruling, to be
made in chambers, on any extension of time that the respondent should
be afforded to file the record.”
[4]
The Third Respondent’s
contention was that the matter ought to be struck off the roll as in
terms of the above provisions,
the review application is deemed to
have lapsed. It is common cause that the Applicant was initially
advised by the Registrar of
this Court on 16 October 2015 that the
record of proceedings was available. The record was to filed within
60 days after the Applicant
was informed of its availability. It was
however filed on 9 February 2016, some three months outside of the
sixty days’ period.
[5]
The
provisions of clause 11.2 of the Practice Manual have received
attention in several decisions in this court
[1]
.
Emanating from these decisions, the consistent approach of this Court
in regards to the provisions of the Practice Manual is as
follows;
5.1
They contain a series
of directives, which the Judge President is entitled to issue. 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.
5.2
While
the Manual acknowledges the need for flexibility in its application,
its provisions are not cast in the form of a guideline
to be adhered
to or ignored by parties at their convenience
[2]
;
5.3
The
Practice Manual is a procedural tool meant to facilitate the
management of review applications, and does not trump any of the
rules of the Court. Thus, a failure to comply with the provisions of
Practice Manual will ordinarily result in the application
for a
review being deemed to have been withdrawn. A defaulting party is
nonetheless entitled to apply for condonation for the
non-compliance
[3]
.
5.4
To
the extent that the defaulting party may contend that it would suffer
prejudice on account of any application of clause 11.2.3
of the
Practice Manual, or that it would be deprived of its right to access
to court and to have its application fully ventilated,
the proper
order is to strike the review application from the roll. Once a
matter has been struck off the roll, nothing prevents
a party from
filing an application to have the review application reinstated,
together with an application in which condonation
for the late filing
of the record is sought;
[4]
[6]
Recently
in
MJRM
Transport Services CC v CCMA & others
[5]
,
this
court had an opportunity to revisit of the provisions of the manual
in question and came to the following conclusions;
6.1
The Provisions of the Manual must be understood within the context of
its objectives as
outlined in its ‘
Introduction’
[6]
;
6.2
The Manual is not a substitute for the Labour Court Rules. Its
purpose is to fill in gaps
not adequately catered for in either the
Rules or the provisions of the LRA for the proper functioning of the
court and expeditious
resolution of disputes;
6.3
Inasmuch as the provisions of the manual call for flexibility in
their application where
required, litigants are nevertheless bound by
them. To hold otherwise would lead to a dysfunctional court system,
where parties
can litigate in any manner that they deem fit, simply
because it suits them to do so;
6.4
Clause 11.2.3 of the Practice Manual makes it clear that if the
Applicant fails to file
the record of proceedings within the
prescribed period of 60 days, the Applicant will be deemed to have
withdrawn the application,
unless the Applicant has during that
period requested the Respondent’s
consent
for an extension of time and consent has been granted;
6.6
Where no extension is consented to, it therefore follows that the
application remains withdrawn
until such time that the Applicant has
filed the necessary papers as contemplated in the manual, to seek an
extension from the
Judge President, which essentially entails seeking
an indulgence;
6.7
By all accounts, and to the extent that the Manual requires the
Applicant to apply to the
Judge President for extension by way of
notice of motion supported by an affidavit, and to serve such an
application, and further
to the extent that answering and replying
affidavits may be filed within the time limits prescribed by Rule 7,
it can only be inferred
that the extension sought can only be akin to
an ordinary application for condonation as Van Niekerk J correctly
pointed out in
Ralo;
6.8
The Applicant will therefore still have the right to file an
application to reinstate the
review application, together with an
application for condonation for the late filing of the record where
none had been filed as
at the hearing of the request for an
extension.
6.9
An extension sought from the Judge President must thus be in the form
of an application
for condonation, and such an application will be
dealt with by a Judge in Chambers. Where a record has been filed
albeit
out of time, it is for the court to issue any further
directives in regards to the matter. Such matters should therefore
not be
placed on the already overburdened motion roll, as they can be
disposed of in chambers. (However, where no such an application is
made, the issue of non-compliance can still be dealt with in open
court)
6.10 It
was never the intention of the Practice Manual that whenever the
provisions of clause 11.2.3 were to be
invoked, the respondent party
could by necessity, implore the Court to dismiss the main review
application. Respondent parties
can therefore not bypass the other
provisions of the Rules of this Court (in particular Rule 11) where
there is an allegation of
a failure to timeously prosecute a review
application, and if they seek a dismissal of the review application;
[7]
In this case, it was
common cause that the Applicant had neither requested an extension
from the Third Respondent to file its record
of proceedings out of
time, nor had it approached the Judge President for such an extension
as contemplated in clause 11.2.3 of
the Practice manual. It was
further common cause that the only application for condonation on
file is in respect of the late filing
of the review application in
view of the failure to file within the time periods contemplated in
section 145 (1) of the LRA.
[8]
Mr. Grogan’s
submissions on behalf of the Applicant in this regard were to the
effect that the deeming provisions were not
a bar to having the
review application being considered, moreso since the court was in a
position to exercise its discretion to
hear the application even in
the absence of an application to de-archive.
[9]
The Third Respondent’s
contention was that there was no longer a
lis
before the Court because the review application was deemed to have
been withdrawn. To this end, the Applicant was obliged to have
brought an application for the reinstatement of the review
application, alternatively, an application for condonation.
[10]
I agree with the
submissions made on behalf of the Third Respondent, and this approach
is in line with the authorities as referred
to elsewhere in this
judgment. Accordingly, by virtue of the fact that there was
non-compliance with the 60-day period contemplated
in clause 11.2.2
of the Practice Manual, the review application as filed by the
Applicant is deemed to have been withdrawn.
[11]
In the absence of an
application to reinstate the review application, or further in the
absence of an application for condonation
as inferred from the
provisions for such non-compliance, the Court cannot exercise its
discretion in a vacuum. To therefore request
the Court to exercise
its discretion, and to ignore the fact that no formal request or
application have been made is indeed a big
ask, which the court
cannot accede to. To do so would make a mockery of practices in this
court which are meant to ensure its smooth
and efficient running. It
is not for this court to willy-nilly grant extensions or indulgences
where no formal applications have
been made in that regard.
[12]
Lastly, in regards to
the issue of costs, the Third Respondent’s contention was that
to the extent that the matter would be
struck from the roll, an
appropriate cost order should follow. I have had regard to the
requirements of law and fairness in considering
costs, and having
done so, I am of the view that a cost order is not warranted in this
matter.
Order:
i.
The application for
review as brought by the Applicant is deemed to have been withdrawn
by virtue of the provisions of clause 11.2.3
of the Practice Manual
of this Court.
ii.
The matter is
accordingly struck off the roll.
iii.
There is no order as to
costs.
________________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. JG Grogan
Instructed
by:
Wheeldon Rushmere & Cole
For
the Third Respondent:
Adv. P Kroon SC
Instructed
by:
McWilliams & Elliot INC
[1]
Minister of
Justice & Correctional Services v Mashiya and Others (J16/14)
[2015] ZALCJHB 68 (5 March 2015); Tadyn Trading
CC t/a Tadyn
Consulting Services v Steiner and Others (J 2845/13) [2014] ZALCJHB
7; (2014) 35 ILJ 1672 (LC); Ralo v Transnet
Port Terminals &
others (2015) 36 ILJ 2653; Shaik v Commission for Conciliation,
Mediation and Arbitration and Others (JR874/13)
[2016] ZALCJHB 239
(8 July 2016)
[2]
Ralo at
para [9]
[3]
Minister of
Justice and Correctional Services v Mashiya and Others at para [16]
[4]
Ralo ta
para [11]
[5]
Case no:
JR1171/14 delivered on 20 September 2016
[6]
Which is
to;
to
promote access to justice by all those whom the Labour Court serves;
to promote consistency in practice and procedure; to set
guidelines
on the standards of conduct expected of those who practise in this
Court; to tell representatives and litigants how
things are done in
this court, and what is expected of them; to address the need to
maintain respect for the court as an institution;
to promote
efficiency in the adjudication of disputes; to improve the quality
of the court’s service to the public, and
to promote the
statutory imperative of expeditious dispute resolution