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[2017] ZALCJHB 118
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Toba v Molopo Local Municipality and Others (JR2422/08) [2017] ZALCJHB 118 (28 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no. JR 2422/08
In the matter between:
GEORGE
TOBA
Applicant
and
MOLOPO LOCAL
MUNICIPALITY
First Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
(“SALGBC”)
NORTH-WEST
DIVISION
Second
Respondent
ADVOCATE T.L. MABUSELA
N.O
Third Respondent
Heard:
25 August 2016
Delivered:
28 March 2017
JUDGMENT
MAHOSI
AJ
[1]
This is an application in terms of Rule 11 of the Labour Court Rules
for an order to dismiss the first respondent’s application
to
review and set aside the arbitration award issued by the third
respondent (“the arbitrator”) under the auspices
of the
SALGBC (“second respondent”) under case number NWD090708
dated 12 September 2008. The applicant further seeks
an order
declaring the said arbitration award to be made an order of court in
terms of section 158(1)(c) of the Labour Relations
Act
[1]
(“LRA”).
[2] The factual
backgrounds to the present dispute may be summarised thus. The
applicant was employed by the first respondent as
a personal
assistant to its Mayor from the 1
st
of October 2006 until
his dismissal on the 1
st
of August 2007.
[3] The applicant
referred an unfair dismissal dispute to the second respondent, South
African Local Government Bargaining Council
(SALGBC), for
conciliation but it remained unresolved. The matter was then referred
to arbitration that was heard on the 2
nd
of June 2008 and
the 1
st
of August 2008. The arbitrator found that the
dismissal of the applicant was substantively unfair. He ordered that
the applicant
be reinstated retrospectively from the date of his
dismissal. The first respondent allegedly received the arbitration
award on
the 18
th
of September 2008 and had six weeks
within which to file the review application. Therefore, the last day
to launch a review application
was the 30
th
of October
2008.
[4] The applicant
submitted that the first respondent filed its review application to
set aside the arbitration award of the arbitrator
on the 11
th
of November 2008. The applicant further submitted that the review
application was 11 days out of the prescribed period and that
it was
not accompanied by an application for condonation of its late filing.
However, the first respondent submitted that the review
application
was served by facsimile to the applicant and filed at this Honourable
Court on the 30
th
of October 2008. The original papers
were allegedly forwarded on the same day by overnight mail to an
advocate in Pretoria who
would assist with the filing thereof. The
original papers could allegedly not reach him the following day.
After an enquiry, the
said papers were allegedly located at the Post
Office on the 10
th
of November 2008 and were filed with
the Registrar of this Court on the 11
th
of November 2008.
However, the first respondent did not submit a proof of fax to the
Registrar or a confirmatory affidavit from
the said advocate. As
such, the first respondent did not prove that the review was lodged
on the 30
th
of October 2008.
[5] On the 21
st
of May 2009, the applicant brought an application to dismiss the
first respondent’s review application together with an
application to make the award an order of the Court. The first
respondent opposed the said applications. It is common cause that
the
record was not filed at the time the applicant filed the Rule 11
application, some six months after the first respondent had
filed the
review application. The applicant submitted that the conduct of the
first respondent and its attorneys in failing to
prosecute the review
application within a reasonable time has and still continues to
prejudice him. Accordingly, the applicant
submitted that no adequate
grounds exist to overlook the excessive delay on the part of the
first respondent to prosecute its review
application.
[6] On the 3
rd
of June 2016, this matter was set down on the pre-enrolment roll
where the court heard brief submissions of the parties regarding
the
status of the matter and the issues in dispute. Judge Van Niekerk
made the order in terms of which the parties were to file
heads of
arguments on the issue of prescription by not later than the 19
th
of August 2016. It was on this basis that the first respondent
required this Court to consider the issue of prescription prior
to
considering the application of dismissal of the review application
and the application to make the award an order of the court.
The
applicant argued that the issue of prescription was not properly
raised as it was only raised in the letter to the applicant’s
attorney and in the heads of argument.
[7]
As aforesaid, the applicant launched an application to make an award
an order of the court and an application for the dismissal
of the
review application on the 21
st
of May 2009. He was represented by his then attorney, Mr. Stefan van
Rensburg. Both the Rule 11 and section 158 applications were
enrolled
to be heard on the 17 February 2011. However, the matter was struck
off the roll due to failure to attend by all parties.
The applicant
appointed his current attorney, Mr Goldberg, on the 18
th
of September 2014. Mr. Goldberg wrote letters to the first
respondent’s attorneys on the 13
th
of January 2015 and on the 6
th
of March 2015. The first respondent’s attorneys responded to
the said letters on the 16
th
of March 2015. It was in this letter in which they communicated that
the matter has prescribed. The applicant’s attorneys
filed
indexes for the rule 11 and section 158(1)(c) applications, but they
were advised to file an explanatory affidavit. It was
then filed on
the 27
th
of July 2017. The matter was then set down for hearing.
[8]
The first respondent argued that on the strength of the LAC judgment
in
Myathaza
v Johannesburg Metropolitan Bus Services Soc Ltd t/a Metrobus In re:
Mazibuko v Concor Plant; Cellucity (Pty) Ltd v Communications
Workers
Union obo Peters,
[2]
the interruption of the prescription had lapsed because the applicant
failed to successfully prosecute his application to make
the award an
order of court, notwithstanding that a period of more than seven
years has lapsed since he launched his application.
As such, it was
the first respondent’s view that the application to make the
arbitration award an order of the court should
be dismissed with
costs. The application to make the award an order of the court was
filed before the lapse of the three-year period
of prescription. In
Magaila
v Coca Cola Fortune (Pty) Limited,
[3]
the Constitutional Court restated the principles relation to the
prescription of a claim arising from an order of reinstatement
in
dismissal dispute and stated as follows:
‘
[27]
Because of the parity of votes in
Myathaza
,
in which none of the judgments secured a majority, no binding basis
of decision (ratio) emerges from the Court’s decision.
But, on
either approach, that of Jafta J and Zondo J, or that of Froneman J,
Ms Mogaila is entitled to an order declaring that
the arbitration
award ordering her reinstatement has not prescribed. She is entitled
to secure its certification under section
143(3) of the LRA, and its
enforcement under section 143(1).
[28] Whether the arbitration award in
her favour could not have prescribed because the Prescription Act
does not apply at all to
LRA matters, as the first and third
judgments held (or because, even if that statute were applicable, the
reinstatement order was
“not an obligation to pay money,
deliver goods or render services”), or because, as the second
judgment held, the CCMA
referral interrupted prescription, persisting
until the finalisation of the review proceedings in October 2013, Ms
Mogaila must
succeed.
[29] On the second judgment’s
approach, the arbitration award would have prescribed only in October
2016. Ms Mogaila filed
her application in this Court timeously, in
April 2016. Prescription was therefore interrupted, again, pending
the finalisation
of these proceedings. On either approach, Ms Mogaila
is entitled now to proceed with the certification of the award under
section
143 of the LRA.’
[9] In the light of the
above judgment, this Court finds that the applicant’s claim
arising from the arbitration award has
not prescribed. I now consider
the application to dismiss the review application.
[10]
The principles relating to the application to dismiss the review
application due to unreasonable delay in its pursuit were
recently
dealt with in the judgment of
Toyota
SA Motors (Pty) Ltd v CCMA and Others
[4]
where the Constitutional Court stated as follows:
‘
It needs to
be stressed that when assessing the reasonableness of a delay, sight
must not be lost of the purpose of the LRA. This
purpose was
articulated by Ngcobo J in CUSA:
“
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes. This alternative process
is intended
to bring about the expeditious resolution of labour disputes. These
disputes, by their very nature, require speedy
resolution. Any delay
in resolving a labour dispute could be detrimental not only to the
workers who may be without a source of
income pending the resolution
of the dispute, but it may, in the long run, have a detrimental
effect on an employer who may have
to reinstate workers after a
number of years. The benefit of arbitration over court adjudication
has been shown in a number of
international studies. (Footnote
Omitted)’
[11] In opposing this
application, the first respondent did not dispute that there was a
delay in prosecution of the review application.
It, however,
submitted that the delay was caused by the fact that the second
respondent failed to inform it that the record was
filed with the
Registrar of this Court. This, according to the first respondent, is
evident from the fact that the applicant’s
then attorney, Mr.
van Rensburg, discovered that the record was filed with the Registrar
only during his inspection of the file
on the 25
th
of
March 2009. The first respondent argued that if the applicant’s
attorneys’ intention was to expedite the finalisation
of this
matter, he could have notified the first respondent of his discovery.
The first respondent allegedly became aware that
the record was filed
with the Registrar when the application for the dismissal of the
review was served on it.
[12] As aforesaid, at the
time of the filing of this rule 11 application, the record of the
arbitration ruling was not made available.
The second respondent
discharged the record to the Registrar on the 5
th
of
February 2009 and it is not clear if it notified the parties. The
applicant’s then attorneys discovered on the 25
th
of
March 2009 that the record was dispatched on the 5
th
of
February 2009. The applicant then filed this dismissal application on
the 20
th
May 2009. This prompted the first respondent to
uplift the record and to deliver it to the transcribers. This was
done on the 26
th
of May 2016. The first respondent took
issue with the fact that the applicant’s attorney failed to
inform it that it discovered
that the record was dispatched to the
Registrar on the 5
th
of February 2009. The first
respondent suggested that his attorney’s failure to inform it
that the record was dispatched
was motivated by his intention to use
the further delay to gain a tactical advantage against it.
[13] The first respondent
admitted that six months have lapsed since the dismissal application
had been launched but denied that
it delayed the process. It is the
first respondent’s view that the second respondent contributed
to the delay in the prosecution
of the review application and that
this application is premature. The first respondent submitted that
the applicant ought to have
first compelled any party which he
believed were delaying the process, to comply with its obligation.
Rule 7A of the Labour Court
Rules reads as follows:
‘
(1)
A party desiring to review a decision or proceedings of a body or
person performing a reviewable
function justiciable by the court must
deliver a notice of motion to the person or body and to all other
affected parties.
(2)
The notice of motion must-
(a)
call
upon the person or body to show cause why the decision
or proceedings should not be reviewed and corrected or set
aside;
(b)
call upon the person or body to dispatch, within 10 days after
receipt of the notice of motion, to the registrar, the record
of
the proceedings sought to be corrected or set aside, together
with such reasons as are required by law or desirable to
provide,
and to notify the applicant that this has been done;’
[14]
On the issue of record, the first respondent argued that it had no
obligation to bring an application to compel the second
respondent to
dispatch the record of the arbitration.
[5]
It was of the view that the applicant could have brought an
application to compel the second respondent to dispatch the record
if
he was of the view that the second respondent’s failure to file
the record delayed the prosecution of matter.
In its opposing affidavit, the first respondent’s attorney
submitted that on the 2
nd
of December 2008, he sent a letter to the applicant’s attorney
in which it was confirmed that the second respondent was requested
to
attend to the record speedily. It is apparent that Rule 7A(5)
requires the applicant in the review application to make copies
of
the record or portion of the record necessary for the purpose of the
review and sub-rule (6) requires it to furnish the record
or portion
of the record to the registrar or other parties. Further, sub-rule
(8) provides that:
‘
(8)
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.’
[15] The delay between
the 30
th
of October 2008 and the 21
st
of May
2009 is excessive and there is no explanation for delay of over six
months. The first respondent simply attributed blame
to the second
respondent for its failure to dispatch the record within the
prescribed period. It cannot be said that the first
respondent had an
intention to prosecute its review application within a reasonable
period. This is evident from its submission
that it had no obligation
to bring an application to compel the second respondent to dispatch
the record of the arbitration. There
is no indication that the first
respondent made enquiries from the Registrar of the Labour Court
whether the record was received.
This is so because there is no
indication of any letter or telephonic conversation and relevant
dates when those enquiries were
made. Had any follow-up been
made, evidence would have been adduced. I agree with the
applicant that it remains the duty and the responsibility of the
applicant
in the review application to ensure compliance with Rule
7A(2)(b). The first respondent failed to do that.
[16]
The record was only filed on the 4
th
of March 2010. However, it was incomplete. The parties undertook to
reconstruct the record but could not agree on how to proceed
and the
second respondent informed the parties that the arbitrator’s
handwritten notes were missing. The applicant’s
attorney of
record in an effort to seek finality to the matter wrote to the first
respondent’s attorneys to place the first
respondent on terms
to set the matter down for reconstruction, to apply for condonation
and to comply with Rule 7A(8) of this Court.
However, the first
respondent informed the applicant that there would be no further
purpose in any further communication between
the parties as the
matter had prescribed.
[17]
To date, the record of the arbitration proceedings remains
incomplete. The delay of almost nine years, that is between the
date
on which the arbitration award was issued to date, is extremely
excessive. It cannot be said that the first respondent had
the
intention to reconstruct the record and to bring the matter to
finality. The first respondent should have taken steps to ensure
that
the record is reconstructed. If the second respondent was not
cooperating, it could have made an application to the Court
for a
direction on the further conduct of the review application.
[6]
As the
dominus
litis
,
the first respondent had to ensure that the review application is
prosecuted within a reasonable period.
[18]
Its explanation for the delay is flimsy, unsatisfactory and
unreasonable and the review application stands to be dismissed
for
this reason alone. It is clear that the first respondent’s
conduct delayed the finalisation of the review application
and by so
doing,
prejudiced the applicant in the process. The legal principles
governing the unreasonable delay where review proceedings are
concerned
were also set out in the case of
Radebe
v Government of the Republic of SA and Others
[7]
where
it was stated as follows:
‘
Whilst
an appeal has to be noted and prosecuted within specified time
limits, no such time limits have been specified for the institution
of review proceedings of this nature. In the absence of a statutory
time limits the Court have, however, in terms of their inherent
powers to regulate procedure, laid down that the review proceedings
have to be instituted within a reasonable time. There are two
principal reasons for the rule that the court should have the power
to refuse to entertain a review at the instance of an aggrieved
party
who has been guilty of an unreasonable delay. The first is that the
unreasonable delay may cause prejudice to the other parties.
Harnaker
v Minister of Interior
1965 (1) SA 372
(C) at 380D;
Wolgroeiers
Afslaers (Edms) Bpk v Municipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41. The second reason is that it is both
desirable and important that finality should be reached within a
reasonable time
in respect of judicial and administrative decision.’
[19]
In the same judgment, it was stated that a Court does not exercise a
discretion in deciding whether a reasonable time has elapsed.
The
enquiry is whether the period which has elapsed was, in the light of
all the relevant circumstances, reasonable. Thus the enquiry
is
factual. Where the Court arrives at the conclusion that there has
been an unreasonable delay, the Court exercises a discretion
as to
whether the unreasonable delay should be condoned. In
Moraka
v National Bargaining Council for the Chemical Industry and
Others,
[8]
Lagrange J restated the relevant principles governing this Court’s
treatment of ongoing delays in conducting review proceedings
as
stated in
Sishuba
v National Commissioner of the SA Police Services
[9]
and
further stated that:
‘
[21] Thus,
as far as the extent and unreasonableness of the delay are concerned,
the applicant's conduct is found seriously wanting
in both respects.
It is not expressly articulated in
Sishubas’
s
case, but in considering whether it would be in the interest of
justice and fairness to dismiss the application, regard ought
to be
had to the merits of the review application.
[20] In its opposing
affidavit to the dismissal application, the first respondent has not
addressed the Court on the prospect of
success in the review
application. The first respondent has further not delivered a notice
in terms of Rule 7A(8) to either supplement
its founding affidavit or
to state that it stands by its notice of motion. It is apparent that
the first respondent disregarded
the Rules of this Court and has
failed to give a reasonable explanation for the delay in the
prosecution of the review application.
It has acted with a degree of
dilatoriness and in a manner that is grossly remiss. The only
inference to be drawn is that the review
application was only brought
with the intention to delay the compliance with the arbitration
award. Consequently, its review application
stands to be dismissed on
this basis only.
[21] The first respondent
prayed for the cost of this application and it is my view that it
opposed this application without having
a substantial explanation for
the delay in prosecuting its review application. As a result, I do
not see why it should not pay
for the costs of this application.
Order
[22] Therefore, the
following order is made:
a)
The review application in respect of the arbitration award issued by
the third
respondent under the auspices of the SALGBC (“second
respondent”) under case number NWD090708 dated 12 September
2008
is dismissed.
b)
The arbitration award is made an order of the court.
c)
The first respondent, Molopo Local Municipality, is ordered to pay
the costs
of this application.
________________
Mahosi AJ
Acting
Judge of the Labour Court
APPEARANCES:
FOR THE
APPLICANT:
Mr. A. Goldberg of Goldberg Attorneys
FOR THE FIRST
RESPONDENTS:
Adv. Riaan Venter
Instructed
by Venter, Booysen & Ferreira Attorneys
[1]
Act 66 of 1995.
[2]
[2016] 1 BLLR 24 (LAC).
[3]
[2017] ZACC 6.
[4]
(2016) 37 ILJ 313
(CC).
[5]
Page 4 of First Respondent’s
Heads of Argument para 5.2.
[6]
Toyota SA
Motors (Pty) Ltd v CCMA and Others
(2016)
37 ILJ 313 (CC)
; Rule
11(1)(c) of the Rules of the Labour Court; Clause 11.2.4 of the
Practice Manual of the Labour Court.
[7]
1995 (3) SA 787 (NPD).
[8]
(2011) 32 ILJ 667 (LC).
[9]
(2007) 28 ILJ 2073 (LC).