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 64
|
|
Da Costa v Commission for Conciliation, Mediation and Arbitration and Others (JR2527/2014) [2017] ZALCJHB 64 (22 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR 2527/2014
In
the matter between:
PETRA
DA COSTA
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
MOHAMMED RAFFEE
Second Respondent
SA GERMAN COMMERCE
Third Respondent
Heard:
15 February 2017
Delivered:
22 February 2017
DIRECTIVE
TLHOTLHALEMAJE,
J
[1]
This
matter was set-down for pre-enrolment hearing. The only issue for
determination is whether the record of proceedings was filed
timeously or whether the review application as filed by the applicant
should be deemed to have been withdrawn in accordance with
the
provisions of clause 11.2.3 of this Court’s Practice Manual
[1]
.
[2]
The award that the
Applicant seeks to have reviewed and set aside was issued on 14
October 2014. The application was launched on
26 November 2014. The
Notice of Compliance in terms of Rule 7A (3) was filed by the First
Respondent on 03 December 2014. On 20
May 2015, the Third Respondent
confirmed receipt of the Notice of Motion together with the Founding
Affidavit as well as the Rule
7A Notice, and further confirmed that
it had filed its notice as well as the answering affidavit. The Third
Respondent further
advised the Applicant that she had a duty to
attempt to attempt to reconstruct the record of proceedings, since
the record provided
by the First Respondent was materially
incomplete.
[3]
The Applicant’s
attorneys of record responded on 26 May 2015, and confirmed that the
First Respondent had indicated that the
complete record could not be
located, and invited the Third Respondent to participate in the
reconstruction of the record at the
First Respondent. The matter was
set down for the reconstruction of the record on 27 July 2015 as per
the parties’ consent.
On 14 October 2015, the Applicant’s
attorneys of record sent correspondence to the Second Respondent,
advising that the reconstructed
notes were still outstanding since 27
July 2015.
[4]
In further compliance
in terms of Rule 7A (3) of the rules of this court, the First
Respondent on 16 October 2015 filed what
appears to be the
reconstructed notes of the second respondent.
[5]
It is my view that in
the light of the parties having consented to the reconstruction of
the record of proceedings, and in view
of a ‘record’
having been filed, there is no basis for the review application to be
deemed withdrawn. At most, the
so-called ‘record’ is
nothing but ineligible notes which one cannot make sense of, but
which are meant to supplement
part of the already transcribed record
of proceedings.
[6]
To the extent that the
Third Respondent deems this ‘record’ to be incomplete and
not of assistance in the determination
of the review application, it
is up to it to raise that as a separate issue either before a Judge
once the matter is set down,
or alternatively, to utilise the
provisions of clause 11.2.4 of the Practice Manual for any directive
in respect of the defect
in the record complained of, but prior to
the matter being set down for a hearing. I am however satisfied that
all reasonable attempts
were made by the Applicant to comply with the
provisions of Rule 7A (6), and to the extent that the applicant has
also filed a
Rule 7A (8) (b) Notice, the matter is ripe for hearing.
Directive:
1.
The Applicant’s
application for review is found to be in compliance with the
provisions of Rule 7A (6) of the Rules of this
Court.
2.
The Third Respondent
has 30 days within which to seek any further directives on the record
of proceedings as filed.
3.
In the absence of any
such an application by the Third Respondent, the Registrar of this
Court is directed to set the matter down
for the hearing of the
review application.
__________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Mr. N Kubayi of
Noveni Eddy Kubayi INC
On
behalf of the Third Respondent: Adv. J Campanella
Instructed
by:
Werthschroder
INC
[1]
Which provides that;
“
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.”