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[2017] ZALCJHB 63
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Rakomane and Others v General Public Service Sectoral Bargaining Council and Others (JR1341/2015) [2017] ZALCJHB 63 (22 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR1341/2015
In
the matter between:
RAKOMANE
AND 31 OTHERS
Applicants
and
GENERAL PUBLIC
SERVICE SECTORAL
BARGAINING COUNCIL
First Respondent
COMMISSIONER DAVID
SEOPELA
Second Respondent
DEPARTMENT OF ROADS
AND TRANSPORT,
LIMPOPO PROVINCE
Third Respondent
Heard:
16 February 2017
Delivered:
22 February 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
This
matter was set-down for pre-enrolment hearing. The Third Respondent
had raised several preliminary points, and argued that
the review
application was not ripe for hearing, and that in fact it ought to be
dismissed. The Applicants had brought an application
to review and
set aside the award issued by the Second Respondent on 20 May 2015.
The review application was launched on 30 July
2015.
[2]
Other
than the issue of condonation in respect of the late filing of the
review application, the Third Respondent also raised concerns
surrounding whether a complete and proper record of arbitration
proceedings had been timeously filed; whether the Applicants’
cause of action had not become moot, and further whether there was a
proper case made out for the review in view of new material
that was
not canvassed at arbitration proceedings having been introduced in
that review application.
[3]
The
Applicants contended that even though the award is dated 20 May 2015,
it only came to their attention on 18 June 2015, and as
far as they
are concerned, the application was launched on time. The Third
Respondent however denied that the award could have
only come to the
Applicants’ attention on 18 June 2015, or that the application
was filed timeously
[4]
In
terms of the provisions of section 145 (1) (a), a review application
ought to be brought before the court
within
six weeks of the date that the award was
served
on the Applicant. There are no attachments to the notices of
compliance in terms of Rule 7A of the rules of this court to indicate
the date on which a copy of the award was served on the Applicants.
This notice was filed on 18 August 2015. However, in an explanatory
affidavit filed by the First Respondent’s Ephafrus Lephai
Kgofelo, he averred that the arbitration proceedings were not
recorded hence a mechanical recording could not be made available.
Significant with the averments made by Kgofelo is that the review
application was served on the First Respondent by the Applicants on
20 May 2015
[1]
. It appears
unlikely however that the Applicants could have filed and served the
review application on the same date that the award
was issued.
[5]
In
the absence of any confirmation from the First Respondent as to the
date on which the award was served on the Applicants, and
the award
being dated 20 May 2015, I am prepared to accept that a copy could
not have been served on them a month later. In their
founding
affidavit, the Applicants had merely contended that they had received
it some one month later. However, no attempt was
made to attach any
proof in that regard or to explain the circumstances under which the
award could have been received a month
later. The only averment made
was that they had received it on that specific date. This simple
averment in the light of the requirements
of section 145 (1) (a) of
the LRA cannot be a basis to conclude that they had indeed received a
copy on the date in question.
[6]
Worst
still, the Applicants, despite the Third Respondent having raised the
issue of compliance with the time frames in filing the
review, failed
to file a supplementary affidavit. A supplementary affidavit in the
light of the concerns raised in the answering
affidavit would have
afforded them an opportunity to clarify the circumstances under which
a copy of the award was received about
a month later after it was
issued, and the reasons, if any why, a condonation application was
not necessary.
[7]
The
Applicants have therefore not complied with the time frames
stipulated in section 145 (1) (a) of the LRA. The review application
was filed out of time, and the delay is about four weeks. No attempt
was made to seek condonation in this regard, nor was an attempt
made
in the founding affidavit to justify why condonation was not
necessary. Accordingly, the review application is not properly
before
the court, and ought to be dismissed. In the light of this
conclusion, it would not be necessary to deal with the other
preliminary points raised on behalf of the Third Respondent. I am
further not persuaded that a cost order is warranted in this
case.
Order:
1.
The
review application as launched by the Applicants does not comply with
the provisions of section 145 (1) (a) of the Labour Relations
Act,
and is accordingly dismissed;
2.
There
is no order as to costs.
__________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants:
Mr S Rangoanasha of S Rangoanasha
INC
On
behalf of the Third Respondent: Adv. SM Shaba
Instructed
by:
State Attorney
[1]
Paragraph 4 of the “Explanatory Affidavit on compliance to
rule 7A of the Labour Court” (Sic)