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[2017] ZALCJHB 40
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Sibanye Gold Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR2396/2008) [2017] ZALCJHB 40 (7 February 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No:
JR2396/2008
In
the matter between:
SIBANYE GOLD
LIMITED (DRIEFONTEIN OPERATION)
Applicant
And
THE COMMISSION FOR
CONCILIATION, MEDIATION AND
ARBITRATION
1
st
Respondent
SIBONGISENI HINTSHO
N.O.
2
nd
Respondent
MODUMEDI JAMES
PHAROE
3
rd
Respondent
Date heard: 18
January 2017
Date delivered: 7
February 2017
JUDGMENT
NAIDOO
AJ
Background
[1]
The
third respondent was dismissed from his employ with the applicant On
23 May 2008 following a disciplinary hearing. On 6 October
2008 the
third respondent filed an unfair dismissal dispute with the first
respondent. The second respondent arbitrated the dispute
and issued
an award on 15 October 2008 bearing case number GAJB21052-08 (“the
award”). The second respondent found
that that the dismissal
was procedurally and substantively fair.
[2]
On
31 October 2008 the third respondent issued a review application in
terms of section 145 of the Labour Relations Act of 1995
(LRA). He
sought the setting aside of the award (“the review
application”).
[3]
On
11 November 2016 the applicant issued the current application (“the
application”). It sought the dismissal of the
review
application in terms of Rule 11 of this Court’s rules (“the
Rules”). It also sought costs against the
third respondent.
[4]
The
third respondent did not file a notice to oppose the application. Nor
did he file any answering affidavit. He, however, presented
himself
at the hearing to oppose the application. He was unrepresented.
[5]
The
applicant averred that the third respondent had, following the issue
of the review application, failed to comply with Rule7A(6)
and Rule
7A(8), which provides:
“
(6)
The applicant must furnish the registrar and each of the other
parties with a copy of the record or portion of the record, as
the
case may be, and a copy of the reasons filed by the person or body.
(7)
The applicant must within 10 days after the registrar has made the
record available either-
(a) by
delivery of a notice and accompanying affidavit, amend, add to or
vary the terms of the notice of motion and supplement the
supporting
affidavit; or
(b)
deliver a notice that the applicant stands by its notice of motion.”
[6]
The
applicant explained that, after receiving the review application, its
attorneys off record addressed a letter to the third respondent
on 12
January 2012. In this letter the third respondent was notified that
that he had done nothing to pursue the matter since he
issued the
review application about 38 months ago. He was asked, in the letter,
whether he had any intentions to pursue the matter.
The applicant’s
attorneys explained to the third respondent that his conduct was
prejudicing the applicant. The applicant
did not respond to this
letter.
[7]
On
18 January 2012 the applicant’s attorneys addressed a letter to
the first respondent in which it enquired whether the recordings
of
the arbitration proceedings had been sent to this court. The first
respondent did not respond to this letter.
[8]
On
5 September 2013 the applicant’s attorneys addressed another
letter to the third respondent in which he was told that,
unless he
delivers the recordings of the arbitration proceedings by 16
September 2013; they would invoke the provisions of this
court’s
practice rule 11.2.7 (“practice rule”) to archive the
review application. Practice Rule 11.2.7, which
was applicable with
effect from 2 April 2013, stated:
“
A
review application is by its nature an urgent application. An
applicant in a review application is therefore required to ensure
that all the necessary papers in the application are filed within
twelve (12) months of the date of the launch of the application
(excluding Heads of Arguments) and the registrar is informed in
writing that the application is ready for allocation for hearing.
Where this time limit is not complied with, the application will be
archived and be regarded as lapsed unless good cause is shown
why the
application should not to be archived or be removed from the
archive.”
[9]
On
2 September 2015 an official of the applicant’s attorney’s
firm, Ms Schoeman, made an attempt to contact the third
respondent by
telephone. She explained that she used the telephone contact number
set out in the review application. She spoke
to the third
respondent’s sister, Ms Bhekiseng, who had answered the call.
Ms Bhekiseng informed Ms Schoeman that the third
respondent lives
with his other sister, Ms Ntabileng. Ms Bhekiseng provided a contact
telephone number to Ms Schoeman. Ms Schoeman
called this number. Ms
Ntabileng answered the call. Ms Schoeman told Ms Ntabileng that the
reason for the call was that she wanted
to serve correspondences
related this matter.
Applicant’s
argument
[10]
The
applicant’s arguments are, in essence, that it would suffer
sever prejudice to deal with the merits of such a long outstanding
matter and that the applicant had failed to make out a case in his
founding affidavit to the review application. The applicant
explained
that it had, since receiving the review application, taken steps to
the third respondent to comply with his duty in terms
of Rule 7A.
Third respondent’s
argument
[11]
The
third respondent argued, from the bar, that he was of the view that
he had done everything necessary to file his review application.
He
was, since he issued the review application, waiting for the court to
advise him further on when he should present himself at
court. After
he had filed his review application the Registrar’s office had
contacted him to collect the arbitration recording.
He did so.
Recently he received a telephone call from the Registrar’s
office again. He was told that the matter was set down
for argument
on 20 January 2017. He responded by presenting himself at court.
[12]
During
his argument he averred that he was dismissed for being absent from
work. He explained that he got ill while at work and
was referred to
the applicant’s mine hospital. His absence was due to his
illness. He was given a sick note by the hospital,
which he delivered
to the applicant’s human resource office on 8 April 2008.
[13]
The
third respondent did not dispute that he got the various letters and
telephone messages from the applicant’s attorneys.
He confirmed
that he did nothing, other than file the review application.
Legal principles –
delayed review proceedings
[14]
The
labour court has on numerous occasions reiterated the legal
principles that should guide this Court when confronted with a
delayed review application
[1]
.
Molahlehi, J pointed out in
Bifawu
and Another v Computershare Investor Services Ltd
[2]
that:
“
From
a policy perspective, there are two principal reasons why the court
should have the power to dismiss a claim at the instance
of an
aggrieved party where the other has been guilty of unreasonable
delay. In Radebe v Government of the Republic of South Africa[3]
the
court said the following:
‘
The first is that unreasonable
delay may cause prejudice to other parties....The second reason is
that it is both desirable and
important that finality should be
reached within a reasonable time in respect of judicial
administrative decisions....’”
[15]
It
is trite that the Court has a discretion on whether to allow
proceedings to continue where there has been this lapse of time
[4]
.
Moreover, the court has an inherent power to control its own
proceedings. The court should, in such an enquiry, first and
foremost,
resolve whether the alleged culprit party is guilty of an
abuse of process.
[5]
[16]
This
Court has stressed in, for example,
Moraka
v National Bargaining Council for the Chemical Industry and Others
[6]
(“the
Moraka
case”), that, in addition to the above common law requirements,
the LRA decrees that labour disputes must be expeditiously
finalised.
An important purpose of the LRA is the promotion of effective
resolution of disputes. The Court reasoned, in the
Moraka
case, that the expeditious resolutions of disputes is what makes
dispute resolution effective. Lagrange J concluded
[7]
that:
“
There
is thus a statutory policy imperative in addition to all the common
law precepts which effectively enjoins a party pursuing
its rights
under the LRA not to allow the prosecution to lose momentum.”
[17]
Lagrange
J further pointed out in the
Moraka
case
[8]
that:
“
A
party defending itself against an application to dismiss on account
of undue delay is effectively asking the court to condone
its
dilatoriness and similar considerations which apply to the evaluation
of condonation applications ought to be relevant in the
evaluation of
these applications. “
…
in
considering whether it would be in the interests of justice and
fairness to dismiss the application, regard ought to be had to
the
merits of the review application.”
[9]
[18]
Rule
7A imposes a duty on an applicant, in review proceedings, to file the
record of the arbitration proceedings. Moreover, clause
11.2. of the
Practice Manual provides that:
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.”
[19]
Tlhotlhalemaje
J pointed out in
South
African Municipal Workers Union obo Mlalandle v South African Local
Government Bargaining Council and Others
[10]
that:
“
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.”
[20]
At
the premise of an enquiry as to whether the third respondent had
complied with Rule 7A, read with clause 11.2 of the Practice
Manual,
is whether he had received the recording from the registrar. He
admitted, from the bar, that he did receive the recording.
[21]
He
then had a duty to ensure that the transcription of the recording was
delivered within 60 days. He failed to do so. The applicant’s
attorneys made several attempts to alert of him of this duty. The
fact that he is unrepresented does not excuse him from this essential
duty as set out in Rule 7A and clause 11.2 of the Practice Manual.
[22]
The
third respondent’s failure to deliver the transcription left
the applicant frustrated for about eight years. Even to this
day, the
third respondent has not provided any indication that he intends
complying with his obligation in terms of Rule 7A and
clause 11.2 of
the Practice Manual.
[23]
The
review application stands to be dismissed. The lapse of time is
severe. The third respondent has made practically no effort
to heed
the applicant’s attorneys’ several alerts to comply with
Rule 7A.
The order
[24]
The
application for review launched by the third respondent (being Mr
Modumedi James Pharoe) on or about 31 October 2008 under case
number
JR2396/08 is hereby dismissed.
[25]
No
order is made as to costs
_____________________
Naidoo
AJ
Acting
Judge of the Labour Court
Appearances:
For
the applicant: Ms Nivaani Moodley
Instructed
by: Webber Wentzel
For
the third respondent: Mr Modumedi James Pharoe
[1]
See
in this regard, for example,
Cashbuild
(Pty) Ltd v Merwe NO and Others
(JR516-11, J2735/13) [2016] ZALCJHB 108 (22 March 2016) at [46]
[2]
(J1345/04)
[2015] ZALCJHB 70 (5 March 2015) at [9]
[3]
1995 (3) SA 787
(N)
[4]
See,
for example,
Molala
v Minister of Law and Order and Another
1993 (1) SA 673
(W) and
Bernstein
v Bernstein
1948
(2) SA 205 (W)
[5]
See,
for example,
Kuiper
& others v Benson
1984 (1) SA 474 (W)
[6]
(2011)
32 ILJ 667 (LC) (29 September 2010)
[7]
The
Moraka
case at [18]
[8]
At
[20] to [21]
[9]
At
[21]
[10]
[2017]
1 BLLR 99
(LC) at [5.1]