About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 42
|
|
National Union of Metalworkers of South Africa obo Matabane v Fabricated Steel Manufacturing (Pty) Ltd and Others (JR1343/10) [2017] ZALCJHB 42 (7 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JR
1343/10
In the
matter between:
NATIONAL
UNION OF METALWORKERS OF
SOUTH
AFRICA obo ANDREW MATABANE
Applicant
and
FABRICATED
STEEL MANUFACTURING
(PTY)
LTD
First
Respondent
CENTRE
FOR DISPUTE
RESOLUTION
Second Respondent
BONGANI
KHUMALO
Third Respondent
Heard
:
01 February 2017
Delivered
:
07 February 2017
Summary:
An opposed application to dismiss a review
application due
to lack
of prosecution and an application to make an arbitration award an
order of this Court. The binding effect of the Practice
Manual of the
Labour Court considered. The principles applicable to delay in
prosecuting a review restated. Held: (1) The provisions
of the
Practice Manual of the Labour Court are binding. (2) The review
application is deemed to be withdrawn. (3) The application
to dismiss
the review application is dismissed due to lack of jurisdiction. (4)
If the application to dismiss is not academic and
the Court possesses
jurisdiction, then the review application is bound to be dismissed
for lack of prosecution. (5) The award is
accordingly made an order
of Court. (6) Each party to pay its own costs.
JUDGMENT
MOSHOANA,
AJ
Introduction
[1]
This is an opposed application to dismiss a review
application due to lack of prosecution and an application to make an
arbitration
award an order of this Court.
Background
facts
[2]
Andrew Matabane (Mr Matabane), a member of the applicant, National
Union of Metalworkers of South Africa (NUMSA), was employed
by the
first respondent as a fork lift driver. Following allegations of
theft or attempted theft of copper, the applicant was charged,
found
guilty and dismissed on 17 June 2009. He unsuccessfully launched
an appeal against his dismissal. Aggrieved by his dismissal,
a
dispute concerning the fairness of the dismissal was referred to the
second respondent.
[3]
On 24 May 2010, an award reinstating
Mr Matabane with back pay was published. The first respondent was
aggrieved by the award. On
14 June 2010, it launched an
application in terms of section 145 of the Labour Relations Act in
this Court.
[1]
On 15 June 2010, the applicant served
and filed a notice of intention to oppose the review application. On
5 July 2010, the
first respondent was informed that the records
of the award sought to be reviewed were filed with the Registrar of
this Court.
After this step, it is apparent that the record was
partly transcribed.
[2]
It is evident that from 5 July 2010,
the first respondent did nothing to prosecute the review further.
Almost three years
later, the applicant launched the present
application seeking to have the review dismissed and have the award
made an order of
court. The first respondent sought to oppose the
application and effectively raised a barrage of technical points,
which points,
given the view I take at the end, I have no intention
to entertain in this judgment.
Arguments
[4]
In Court, counsel for the first
respondent, Mr Campanella, attempted to raise a prescription
argument. However, in the light of
the recent Constitutional Court
judgment in
Myathaza
[3]
he jettisoned that attempt. Although
he raised other arguments ancillary to the prescription argument, I
am of the view that such
arguments are academic. For completeness
sake, he argued that on the strength of the Labour Appeal Court (LAC)
judgment in
Myathaza,
[4]
the interruption of
prescription had lapsed because the applicant did not prosecute the
present application diligently and timeously
.
For what it is worth and this point in time in passing, I state that
the application was filed before the lapse of the three-year
period
of prescription. The pleadings in respect of the present application
closed on 11 April 2013, when the applicant
filed its
replying affidavit. The fact that the Registrar only enrolled the
application for the first time on 28 July 2016
has nothing
to do with the applicant. The LAC dealt with the provisions of
section 15(2) of the Prescription Act.
[5]
In terms thereof, prescription if
interrupted by any process, such will be deemed not interrupted if
there is no successful prosecution
or there is abandonment or setting
aside of a judgment. The situation contemplated in section 15 (2)
is not applicable
to this matter before me.
[5]
Further, he submitted that a practice
manual is a guideline and cannot take away the discretion of the
Court to entertain a review
which is deemed to be withdrawn. He
persisted with an argument that the founding affidavit is defective
in that the Commissioner
of Oaths did not append a date on the
affidavit. He submitted that the granting of an order in terms of
section 158(1)(c)
of the LRA
[6]
will prejudice the first respondent’s
chances to seek reinstatement of the review application. On the other
hand, Ms Mthiyane
for the applicant argued that the review
application ought to be dismissed due to lack of diligent
prosecution. Further, she argued
that there are no impediments for
the Court to make the award its order. On the issue of costs, both
representatives did not press
for an order for costs.
Evaluation
[6]
It is appropriate in my mind to
address the issue of the Practice Manual
[7]
first. The provisions relied on by the
applicant reads thus:
“
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 app
licant may, on notice of motion
supported by affidavit, apply to the Judge President in chambers for
an extension of time…”
(Emphasis added.)
[7]
In
casu
,
the first respondent was advised by the Registrar that the records
had been received on 6 July 2010. The 60-day period expired
around
September or October 2010. The effect of this is that the review
application is deemed to be withdrawn. Put differently,
as from
September or October 2010 there is no review application pending
before Court. The question that immediately crops is the
binding
effect of the Practice Manual. Such a question has received the
attention of the LAC in
Samuels
v Old Mutual Bank
[8]
where it held thus:
“
The
consolidated practice manual which came into operation on
2 April 2013 constitutes a series of directives issued by
the Judge President over a period of time. Its purpose is,
inter
alia
,
to
provide access to justice by all those whom the Labour Court serves;
promote uniformity and/or consistency in practice and procedure
and
set guidelines on standard of conduct expected of those who practice
and litigate in the Labour Court. Its objective is to
improve the
quality of the court’s service to the public, and promote the
statutory imperative of expeditious dispute resolution.
The
practice manual is not intended to change or amend the existing Rules
of the Labour Court but to enforce and give effect to
the Rules, the
Labour Relations Act as well as various decisions of the courts on
the matters addressed in the practice manual
and the Rules.
Its
provisions therefore are binding
.
The Labour Court’s discretion in
interpreting
and applying
the
provisions of the practice manual remains intact, depending on the
facts and circumstances of a particular matter before the
court.”
[9]
(Emphasis added and footnotes omitted.)
[8]
Therefore, the LAC decisively held that the Practice Manual is
binding. As the Labour Court, I retain a discretion only on
application and or interpretation of the practice manual. The
provisions of the Manual quoted
supra
are lucid and clear and
require no different interpretation other than the literal meaning
thereof. In the circumstances of this
case, I cannot find any reason
why I should not apply the provisions of the Manual. Mr Campanella
did not proffer any reason why
I should not. On the contrary, he
submitted that the Practice Manual is not binding. To my mind this is
a classical case where
the provisions of the Practice Manual should
be applied. For a period of almost three years, the first respondent
did absolutely
nothing to prosecute the review. Mr Campanella
sought to shift the blame onto the applicant. He even submitted from
the bar
that a view was held that the award was abandoned based on
rumours that Mr Matabane had passed on. Given the approach taken
in the heads of argument – the award has prescribed, the first
respondent sat back and hoped that the award would prescribe
and
become unenforceable in law.
[9]
This in my view was an unfair tactical manoeuvre on the part of the
first respondent. It is not surprising that section 22 of
the Labour
Relations Amendment Act
[10]
sought to deal with
such manoeuvres by enacting subsections (5)-(10) to section 145 of
the LRA. Given the fact that I am of full
intent to apply the Manual,
the question to which I turn hereunder is: what then becomes of the
application to dismiss the review
application?
[10] A
review application that is deemed to be withdrawn does not exist. Put
differently, there is nothing before the Court to be
dismissed. This
Court will have no jurisdiction to dismiss a non-existent review
application. Such to my mind suggests that I must
refuse to entertain
the dismissal application due to lack of jurisdiction. In argument,
Mr Campanella submitted that the first
respondent should be left
with an opportunity to approach the Judge President with an
application for extension of time. Sadly,
the first respondent did
not seek consent within the 60-day period, nor did it launch the
application for extension within the
60 days. I was perturbed to hear
a submission by Mr Campanella that the review could have been argued
without a record. If that
was the case, I am unable to comprehend why
the first respondent did not request the Registrar to enrol the
review or filed a notice
to stand by to enable the applicant to
answer and continue to prosecute the review. Upon enquiry from the
Court why such step was
not taken, Mr Campanella informed the Court
of the “
No record no review rule
” which is
allegedly being implemented by this Court and/or the Registrar’s
office. I am unaware of such a rule. On
the contrary, I am aware of
judgments of this Court that have held that if the grounds of review
are not germane from the record
but from the award itself, this Court
can still entertain the application. Considering of course that an
arbitration award in itself
forms part of the record of the
proceedings to be reviewed. Accordingly, I conclude that the review
application is withdrawn, resultantly,
the application to dismiss
ought to be dismissed due to lack of jurisdiction. Assuming that I am
wrong, I now consider the application
to dismiss the review
application.
[11] As
at 1 February 2017, a review which was launched on 14 June 2010,
was not ripe for a hearing. Almost 7 years later,
the first
respondent did nothing to have the review prosecuted to finality.
This is troubling and concerning gravely. It is not
surprising that
the legislature sought to enact section 145(5).
[11]
In terms of the Uniform Rules of
Court, applying for a date is a step towards prosecuting an appeal,
failing which, an appeal lapses.
[12]
In my mind, such provision must have
influenced the manual provisions in respect of reviews in this Court.
It can be inferred, albeit
not expressly stated, that failure to
apply for a date of review within the contemplation of subsection (5)
leads to the lapsing
of the review application. It is for that reason
that the legislature behooves a party to seek condonation for such a
failure.
Nonetheless, the provisions of the subsection do not apply
to the review application involved herein.
[12] As
to the principles applicable to the delay issue, I resort to the
LAC’s judgment in
Colett
v Commission for Conciliation, Mediation and Arbitration and
Others
.
[13]
In that matter, the LAC dealt with an
appeal against an order of this Court to dismiss the review
application due to delay in prosecuting
the review application.
Unlike in the matter before me, the applicant there applied for
condonation for the late prosecution of
the review. The LAC, at para
32, quoted with approval
Associated
Institution Pension Fund and Others v Van Zyl and Others.
[14]
Therein the SCA held thus:
“
The
reasonableness or unreasonableness of a delay is entirely dependent
on
the
facts
and
circumstances of any particular case. . . The
investigation
into
the reasonableness of the delay has nothing to do with
the
court’s discretion
.
It is an investigation into the facts of the matter in order to
determine whether, in all the circumstances of that case, the
delay
was reasonable. Though this question does imply a value judgment it
is not to be equated with the judicial discretion involved
in the
next question, if it arises, namely, whether the delay which has been
found to be unreasonable should be condoned . . .”
(Emphasis
added.)
[13]
Conspicuously absent in this matter are the facts to be investigated
to determine whether the delay is reasonable or unreasonable.
It is
common cause that the prosecution of the review has been delayed. In
fact, Mr Campanella conceded that the delay was deliberate
since, in
the first respondent’s view, the award was either abandoned or
had become unenforceable in law. Mr Campanella implored
me to
exercise discretion in the interest of justice not to dismiss the
review. As correctly and decisively held by the SCA, the
investigation of the facts has nothing to do with the court’s
discretion. I fully agree with the submission by the applicant
that
the principles enshrined in
Mkhize
v Tankers Services (Pty) Ltd
[15]
finds application. Surprisingly, in
responding to the application to dismiss, the first respondent made
no effort, in fact took
a cavalier approach, to explain to the Court
why the prosecution of the review is being delayed. Laughably, the
deponent testified
that the facts pleaded by her indicate a clear
lack of interest in the pending review proceedings by the applicant’s
member.
Largely, the deponent devoted her time by being critical of
the applicant. There is no iota of evidence seeking to explain the
apparent excessive delay.
[14] The
LAC in
Colett v CCMA
[16]
concluded that when assessing the
reasonableness or unreasonableness of a delay sight must not be lost
of the fact that labour disputes
must be resolved without delay.
[17]
Mr Campanella implored me to have
regard to the prospects of success in the review application. In its
opposing affidavit,
the first respondent is completely mum about its
prospect of success. Mr Campanella referred me to a ‘detailed’
founding
affidavit in support of the review application. In that
supposedly detailed affidavit, the deponent deals with the grounds of
review
in two paragraphs.
[18]
The grounds can be summarised as
follows: (a) failure to apply mind to the evidence as required by the
law of evidence; and (b)
rejection of circumstantial evidence of
Viljoen, requiring possession of the stolen goods and rejection of
the polygraph results.
A brief glance at the award suggests to me
that the award was well reasoned and supported by the applicable
legal principles. In
any event the review application is not before
me. In
Colett v CCMA
the LAC went further to hold thus:
“
There
are overwhelming precedents in this Court, the Supreme Court of
Appeal and the Constitutional Court for the proposition that
where
there is a flagrant or gross failure to comply with the rules of
court condonation may be refused without considering the
prospects of
success.”
[19]
(Footnote omitted)
[15] In
this matter, the first respondent clearly ignored the Rules and
Directives of this Court. I accordingly have no reason to
even
consider the prospects of success in the review application.
[20]
Therefore I would, without hesitation,
dismiss the review application due to lack of diligent prosecution. I
now turn to the section
158(1)(c) application.
[16] This
Court retains discretion in applications of this nature. I do not
agree with Mr Campanella that this Court is impeded
to exercise its
discretion. It has long been held by this Court that a filing of a
review does not suspend the operation of an
award. This position
found its way into the LRA in 2015.
[21]
Regard being had to the views
expressed by me above, I do not find any persuasion not to grant the
section 158(1)(c) application.
Order
[17] In
the results, I make the following order:
1.
The application to dismiss the review application is dismissed
for
want of jurisdiction.
2.
The Arbitration Award issued by the third respondent dated
24 May 2010
under case number MEGA 25789 is hereby made an
order of this Court.
3.
Each party to pay its own costs.
_______________________
G.N
Moshoana
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant:
S Mthiyane
Instructed
by:
NUMSA
For the
First Respondent:
G Campanella,
Instructed
by:
Luita Cirone Attorneys, Johannesburg.
[1]
66 of 1995 (LRA)
as amended. Section 145 is entitled “Review of arbitration
awards” and provides in relevant part:
“
(1)
Any party to a
dispute
who alleges
a defect in any arbitration proceedings under the auspices of the
Commission may apply to the Labour Court for an
order setting aside
the arbitration award -
(a)
within six weeks of the date that the award was served on the
applicant, unless
the alleged defect involves the commission of an
offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so
far as it
relates to the aforementioned offences) of Chapter 2 of
the Prevention and Combating of Corrupt Activities Act, 2004; or
(b)
if the alleged defect involves an offence referred to in paragraph
(a), within six
weeks of the date that the applicant discovers such
offence.”
[2]
In
paras
9.2 to 9.4 of the opposing affidavit, Ms Cirone testified that the
first respondent had every intention of finalising its
review
application
as
soon as possible
.
Further, that the record of the arbitration proceedings has been
partly transcribed, and the first respondent’s legal
team are
using their best endeavours to obtain a full copy of the record of
the proceedings. That counsel has been requested
to assist with the
further pleadings and investigation into what is still required.
This testimony was delivered on 3 April 2013.
[3]
Myathaza v Johannesburg
Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others
[2016] ZACC 49.
[4]
Myathaza v
Johannesburg Metropolitan Bus Service, Mazibuko v Concor Plant,
Cellucity v CWIU obo Peters
[2016]
37 ILJ (LAC) at para 77.
[5]
Act 68 of 1969.
Section 15 is entitled “Judicial interruption of prescription”
and subsection (2) thereof provides:
“
(2)
Unless the debtor acknowledges liability, the interruption of
prescription in terms of
subsection (1) shall lapse, and the running
of prescription shall not be deemed to have been interrupted, if the
creditor does
not successfully prosecute his claim under the process
in question to final judgment or if he does so prosecute his claim
but
abandons the judgment or the judgment is set aside.”
[6]
Section 158(1)(c)
states:
“
(1)
The Labour Court may—
.
. .
(c)
make any arbitration award or any settlement agreement an order of
the Court.”
[7]
Practice Manual of the Labour Court
of South Africa. (Practice Manual)
[8]
[2017] ZALAC 10.
[9]
Id at paras 14-5.
[10]
6 of 2014. The
provisions introduced by this section came into effect in January
2015.
[11]
This section
provides:
“
(5)
Subject to the rules of the Labour Court, a party who brings an
application under subsection
(1) must apply for a date for the
matter to be heard within six months of delivery of the application,
and the Labour Court may
on good cause shown, condone a late
application for a date for the matter to be heard.”
[12]
See rule 50(1) of the Uniform Rules
of Court which provides:
“
An
appeal to the court against the decision of a magistrate in a civil
matter shall be prosecuted within 60 days after the noting
of such
appeal, and unless so prosecuted it shall be deemed to have lapsed.”
[13]
[2014] 6 BLLR 523
(LAC); (2014) 35
ILJ 1948 (LAC).
(
Colett
v CCMA)
. See also
the recent judgment of the Constitutional Court in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(CCT
228/14)
[2015] ZACC 557
at paras 1, 34 and 35.
[14]
[2004] 4 All SA
133
(SCA) at para 48.
[15]
[1993] 14 ILJ 688
(LAC) at page 692. Here, the Court, in holding that the maxim
vigilantibus
non dormientibus iura subveniunt
also
applied in labour relations matters, remarked as follows:
“…
an
applicant must bring his application within a reasonable time. The
legal maxim is
vigilantibus
non dormientibus iura subveniunt
which in
effect means that the law comes to the aid of those who are vigilant
and those who look after their own interest and
does not do so in
case of the indolent.”
[16]
Colett v CCMA
above
n 13.
[17]
Id at para 34.
[18]
Paras 18 and 19,
pages 31-2 of the pagination.
[19]
Colett v CCMA
above
n 13 at para 38.
[20]
Id at para 39.
[21]
See section 145(7)
of the LRA which provides that—
“
The
institution of review proceedings does not suspend the operation of
an arbitration award, unless the applicant furnishes security
to the
satisfaction of the Court in accordance with subsection (8).”