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[2017] ZALCJHB 172
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Theart v General Public Service Sectoral Bargaining Council and Others (JR742/14) [2017] ZALCJHB 172 (13 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
Case no: JR 742/14
DANIEL
D
THEART Applicant
and
THE
GENERAL PUBLIC SERVICE SECTORAL BARGAINING First
Respondent
COUNCIL
COMMISSIONER
L DREYER
N.O. Second
Respondent
THE
DEPARTMENT OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT Third
Respondent
Heard
on: 10 February 2017
Delivered: 13 February 2017
JUDGMENT
VAN NIEKERK J
[1]
This is an application to review and set
aside an arbitration award issued by the second respondent on 14 May
2013. In her reward,
the second respondent upheld the penalty of
demotion imposed on the applicant after he had been found guilty of a
number of charges
of misconduct.
[2]
The present application was filed on 21
January 2015, more than 18 months late. The applicant has filed an
application to condone
the late filing of the review application. The
third respondent in the review application is filed an application in
terms of Rule
11 seeking to dismiss the review application on the
basis that the applicant failed to prosecute the review application
with the
required degree of diligence.
[3]
The record was made available to the
applicant by 18 March 2015. The transcription of the record was filed
only on 1 December 2015,
way in excess of the 60-day period
prescribed by the practice manual. There is no application for
condonation for the late filing
of the record.
[4]
It is well-established that this court has
the power to dismiss proceedings on account of the delay in the
prosecution of the proceedings.
This power is premised on the court’s
inherent power to prevent an abuse of its own process, and in the
case of review applications,
the exercise of the power to dismiss is
one that is used more often than not to ensure compliance with the
principle that review
applications must be expeditiously dealt with.
[5]
The present applications were enrolled for
a pre-enrolment hearing. At the time of the hearing, six years had
elapsed since the
applicant was first dismissed and almost 4 years
had elapsed since the arbitration award under review was issued. In
my view, the
rule 11 application should succeed and the review
application ought to be dismissed. I take into account particularly
the fact
that the review application was filed inordinately late. The
applicant does not dispute that the extent of the delay is
substantial.
In my view, the explanation for the delay is
unsatisfactory. The explanation centres on effort by the applicant to
secure representation
by the trade union that represented him at the
arbitration hearing, and then another union, to prosecute the present
application.
While the court would ordinarily afford degree of
latitude to a party seeking to prosecute a review application, the
degree of
lateness in the present instance this so excessive that any
explanation for the period of delay must necessarily meet a high
standard.
The explanation in the present instance does not serve to
offset the substantive delay in filing the application. Further, it
is
apparent from the papers that the applicant’s real complaint
is with the arbitrator’s assessment of the evidence and
his
conclusions that the decision to which the arbitrator came was
incorrect. This is not the applicable test. Commissioners are
allowed
to be wrong. This court is entitled to intervene in limited
circumstances, if and only if an applicant establishes that
the
commissioner’s decision was so unreasonable that no reasonable
decision maker could come to that decision on the available
material.
This is not the case that the applicant is made out. The applicant’s
prospects in the review application are therefore
minimal, if they
exist at all.
[6]
In any event, the applicant’s failure
to file the record timeously has the result that in terms of
paragraph 11.2 of the practice
manual, the application was deemed to
have been withdrawn 60 days after the record was made available. The
applicant took none
of the steps provided in the practice manual in
the case of an inability to file a record timeously. It is also not
in dispute
that during the course of September 2015, efforts were
made to ensure that the applicant’s attorney file the record.
Despite
assurances that the record would be filed without further
delay, it was not filed until December 2015.
[7]
Perhaps the most fundamental factor to be
considered is that of the statutory purpose of expeditious dispute
resolution. The practice
manual requires parties to prosecute review
applications as if they were urgent applications. Recent amendments
to the LRA make
clear that parties are required to prosecute review
applications without delay; indeed, all of the relevant papers are
required
to be submitted within a period of six months from the date
on which the application is filed. Given these benchmarks, the
applicant
has been dilatory and as failed to prosecute the review
application with the required degree of diligence. In these
circumstances,
and given the poor explanation for a delay in excess
of 18 months in filing the review application, a consideration of all
of the
circumstances dictates that the application to dismiss ought
to be granted
[8]
In the premises I make the following order:
1.
The application for review is dismissed.
_____________________
Van Niekerk J
Judge
of the Labour Court
APPEARANCES
APPLICANT:
Lange Carr & Wessels inc.
THIRD
RESPONDENT: Ms N Gchilitshana, The State Attorneys