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[2017] ZALCPE 11
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Sol Plaatjie Local Municipality v South African Local Government Bargaining Council and Others (PR192/15) [2017] ZALCPE 11 (13 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case
no: PR 192/15
In
the matter between:
SOL
PLAATJIE LOCAL
MUNICIPALITY Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL First
Respondent
T
L MABUSELA
N.O Second
Respondent
SAMWU
obo M D
MORWE Third
Respondent
Heard:
18 May 2017
Delivered:
13 June 2017
Summary:
Application to condone late filing of record in a review application.
Applicant has to file an application for reinstatement
of the review.
Interpretation of clause 11.2 of the Practice Manual. Steps to be
followed when record is missing or inaudible.
Guidelines for
practitioners and parties in general.
JUDGMENT
PRINSLOO
J
Background
facts
[1]
On 19 August 2015 the Second Respondent
(arbitrator) issued an arbitration award reinstating Mr Morwe
(Morwe). On 13 November 2015
the Applicant filed a review application
under case number PR 192/15, seeking the review and setting aside of
the said arbitration
award as well as condonation for the late filing
of the review application.
[2]
The First Respondent filed the record with this
Court on 8 December 2015 and a Rule 7A(5) notice was issued by the
Registrar on
18 December 2015.
[3]
The Applicant explained that between December
2015 and January 2016 it attempted to obtain a formal quotation for
the transcript
of the record and on 27 January 2017 the Applicant’s
attorneys confirmed that they would pay for the transcription of the
record.
[4]
On 4 March 2016 the Third Respondent’s
attorneys, Cheadle Thompson and Haysom Inc (CTH), addressed a letter
to the Applicant’s
attorneys, referring to the Rule 7A(5)
notice of 18 December 2015 and stating that:
“
In
terms of Rule 7A(5) read with clause 11.2.2 of the Practice Manual of
the Labour Court, April 2013, your client is required to
file the
record of arbitration proceedings within 60 days of being notified
that the record is available with the registrar.
We
confirm that 60 days from 18 December 2015 expires on 16 March 2016.
If you fail to deliver the record by 16 March 2016, your
client’s
review application will be deemed to be withdrawn. We trust that the
record will be delivered within the time period
in order to expedite
the resolution of this long outstanding matter.”
[5]
On 18 March 2016 the Applicant’s
attorneys responded to CTH’s letter of 4 March and recorded
that the transcribed record
was still awaited. The Applicant’s
attorneys did not agree with CTH’s view in respect of the
filing of the record and
responded that: “
The
record was timelessly (sic) applied for an we still await for the
feedback in this regard. We therefore cannot concur with the
contents
of your stated letter and revert back to you as soon as we receive
the document.”
[6]
On 22 March 2016 CTH responded to the
Applicant’s attorneys and reiterated that the review
application was deemed to be withdrawn.
[7]
The transcribed record was served on CTH on 5
May 2016 and on 17 May 2016 CTH indicated that the transcript was
incomplete in that
Morwe’s evidence in chief, cross-examination
and re-examination was not part of the transcript. The Applicant’s
attorneys
were requested to urgently provide the transcript of
Morwe’s evidence as well as their Rule 7A(6) and (8) notices.
[8]
On 31 May 2016 the Applicant’s attorneys
requested the missing portion of the record from the transcribers,
Ikamva Veritas
Transcription Services Consortium (Veritas).
[9]
On 1 June 2016 Veritas responded to the
Applicant’s attorneys and informed them that they will have to
enquire from the bargaining
council in respect of the days of the
arbitration for which there appear to be no record. Veritas advised
that the bargaining council
would send a new CD to the Labour Court
whereupon the Labour Court will notify the Applicant’s
attorneys that the record
was filed and the new disc should be
collected and Veritas would prepare a quotation for the transcription
thereof.
[10]
On 6 June 2016 the Applicant’s attorneys
contacted the bargaining council regarding the missing portion of the
record and
one Thabiso informed them that he would look for the
recording and revert. On 7 June 2016 Thabiso was still listening to
the available
recordings to locate the missing portion. On 14 June
2016 Thabiso informed the Applicant’s attorneys that they could
not
locate the missing portion of the record and that the arbitrator
advised that his laptop crashed and there is no available recording.
Thabiso furthermore advised that the arbitrator was willing to assist
with the reconstruction of the record if the parties were
amenable.
[11]
The Applicant’s attorneys informed CTH on
22 June 2016 that the complete record of proceedings was not
available and that
a portion of the recordings was lost. They further
informed CTH that the bargaining council indicated that the
arbitrator will
arrange for a date to reconstruct the missing portion
of the record. CTH was requested to hold the matter in abeyance, in
view
of Morwe’s persistent tender of his services.
[12]
On 22 June 2016 CTH responded that as the
application for review is deemed to be withdrawn, there is no pending
application before
the Labour Court and the Applicant was requested
to comply with the arbitration award. As there was no longer a review
application
pending, the matter could not be placed in abeyance.
[13]
The Applicant subsequently arranged a
consultation with counsel for 30 June 2016 and this application was
filed on 17 July 2016.
[14]
The matter was enrolled for hearing on 18 May
2017.
The
relief sought
[15]
The Applicant seeks an order condoning non-compliance with the Rules
of this Court in respect of the late filing of the complete
record,
an order directing the parties to hold a meeting to reconstruct the
record and alternatively for the matter to be remitted
to the First
Respondent for a hearing
de novo
as the record is incomplete.
[16]
The relief sought will be considered in detail.
Analysis
Filing
of the record
[17]
Rule 7A(6) of the Labour Court Rules provides that the applicant in a
review application must furnish the Registrar and each
of the other
parties with a copy of the record or portion of the record, as the
case may be. The applicant must make available
copies of such
portions of the record as may be necessary for the purposes of the
review.
[18]
The serving and filing of the record in a review application is
provided for in clause 11.2 of the 2013 Practice Manual of
the Labour
Court (Practice Manual) as follows:
“
11.2.1 Once the
registrar has notified an applicant in terms of Rule 7A (5) that a
record has been received and may be uplifted,
the applicant must
collect the record within seven days.
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 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.”
[19]
This Court
and the Labour Appeal Court have considered the status of the
Practice Manual
[1]
and held that
in
essence, the manual promotes uniformity and consistency in practice
and procedure and sets guidelines on standards of conduct
expected of
those who practise and litigate in the Labour Court and it promotes
the statutory imperative of expeditious dispute
resolution. The
provisions of the Practice Manual are binding and should be adhered
to and it is not to be adhered to or ignored
by parties at their
convenience.
[20]
Clauses 11.2.1 and 11.2.2 provide for the time frame within which the
record should be filed and clause 11.2.3 sets out the
steps to be
followed and the consequences should an applicant fail to file the
transcribed record within the prescribed period.
[21]
A proper interpretation of clause 11.2.3 shows that there are three
possibilities if the record is not filed within 60 days
of the date
on which the applicant is advised by the registrar that the record
has been received. The first possibility is the
easy and obvious one
namely for the applicant to request the respondent’s consent
for an extension of time and consent has
been given.
[22]
The second possible scenario arises only in the event that consent
was sought from the respondent but is refused. In such event
the
applicant may, on notice of motion supported by affidavit, apply to
the Judge President for an extension of time. The application
must
comply with Rule 7 and affidavits are be filed within the time limits
prescribed by Rule 7.
[23]
The third possible scenario arises when the applicant in a review
application failed to file the record within the prescribed
60 days
period and failed to obtain the respondent’s or Court’s
consent for the extension of time. In such a case the
review
application is deemed to be withdrawn.
[24]
In casu
the Applicant has not filed the record within the
prescribed 60 day period and has not approached the Third Respondent
for consent
for an extension of time this. It follows that the review
application is deemed to be withdrawn.
[25]
In
Ralo
v Transnet Port Terminals and others
[2]
(Ralo)
the Court accepted the legal definition of ‘deemed’ as
set out in the Namibian authority of
Municipal
Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009,
2 March 2010)
where
the Court held that the word ‘deemed’ is considered to
have a conclusive effect
[3]
.
This Court concluded by stating the following:
“…
The
plain and unambiguous wording of the practice manual is to the effect
that the applicant must be regarded as having withdrawn
the review
application”
[26]
In casu
the same fate meets the Applicant and the status
of the review application is ‘withdrawn’. In view of the
fact that
the review application is withdrawn, the alternative relief
sought by the Applicant cannot be granted.
[27]
There is however no bar,
either in the Rule of this Court or the Practice Manual to the
Applicant filing an application in which
it seeks to have the review
application reinstated. Logic dictates that the review should be
reinstated and be alive before the
late filing of the record could be
condoned. An application to have the review application reinstated
could be filed together with
an application in which condonation for
the late filing of the record is sought.
[28]
I accept that this application was an attempt to get the review
application back on track. The Applicant however should have
filed an
application wherein the order sought is for the review application to
be reinstated.
[29]
In casu
the Applicant sought condonation for the late filing
of a record without an application to reinstate the review
application. Condonation
for the late filing of a record cannot be
granted in respect of a withdrawn application.
Reconstruct
[30]
The Applicant also seeks an order directing the parties to hold a
meeting to reconstruct the record.
[31]
Clause 11.2.4 of the Practice Manual provides as follows:
“
If the record of
the proceedings under review has been lost, or if the recording of
the proceedings is of such poor quality to the
extent that the tapes
are inaudible, the applicant may approach the Judge President for a
direction on the further conduct of the
review application. The Judge
President will allocate the file to a judge for a direction, which
may include the remission of the
matter to the person or body whose
award or ruling is under review, or where practicable, a direction to
the effect that the relevant
parts of the record be reconstructed.”
[32]
In my view clause 11.2.4 of the Practice Manual is abused by some
parties and practitioners in this Court and their abuse contributes
significantly to an unnecessary increase of the workload of Judges in
this Court. Some of the practitioners and parties abuse clause
11.2.4
to the extent that they write letters or file applications seeking
‘direction on the further conduct of the review
application’
long before such direction is needed. This clause is abused and used
as a backdoor to get advice and guidance
from this Court.
[33]
Clause 11.2.4 allows an applicant to approach the Judge President for
a direction on the further conduct of the review application
in very
limited circumstances. Firstly, where the record of the proceedings
under review has been lost. This may happen for instance
when the
arbitrator’s recording has been stolen or destroyed and there
is no recording that could be transcribed. Secondly
where the
recording is of such poor quality that it is inaudible.
[34]
In instances where the record is lost or inaudible the first step for
the applicant is to assess whether the entire recording
or only a
portion of it is lost or inaudible. This is necessary and of
relevance because Rule 7A(5) requires of an applicant to
make
available copies of such portions of the record as may be necessary
for the purposes of the review. Where the issue on review
is limited
or on a point of law only, the entire transcript of the proceedings
may not be necessary for purposes of the review.
The applicant should
assess its grounds for review and consider whether the available
portion of the record is sufficient to proceed
with the review and
whether this Court would be in a position to consider the review on
such limited portion of the record.
[35]
The
Constitutional Court and the Labour Appeal Court confirmed that the
Court is not precluded from determining a matter on less
than a
complete record in appropriate cases where the matter can be decided
on the material before Court. Where the interests of
justice demand
it, a pragmatic approach is appropriate despite the inadequacies of
the record
[4]
.
[36]
Where the entire recording is lost and it has been established that
the record is necessary for the Court to decide the review
application, the parties should attempt to reconstruct the record. I
will deal with the principles relating to reconstruction
infra.
[37]
Where the entire recording is lost and reconstruction proved to be
impossible or a futile exercise, the applicant should first
approach
the respondent and attempt to obtain consent to remit the matter back
to the CCMA or bargaining council for a hearing
de novo
because
of the absence of a transcribed record and the impossibility of
adjudicating the review without a record. The applicant
may, in the
event consent is given, approach the Registrar for an order to be
made by a Judge in chambers in terms of the provisions
of Rule 17(3)
of the Rules of the Labour Court. This step will promote the
expeditious resolution of the dispute.
[38]
In the event that the entire recording is lost and the respondent
refuses to consent to remit the dispute for a hearing
de novo,
the
applicant may approach the Judge President for a direction on the
further conduct of the review application.
[39]
Where the entire recording is inaudible, the parties should attempt
to reconstruct the record. The principles of reconstruction
also
apply where the recording is lost. It is the duty of the applicant in
a review application to initiate the steps and to drive
the process
of reconstruction to finality.
[40]
The process
of reconstruction had been explained by the Labour Appeal Court as
far back as 2003 in
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v
Commission for Conciliation, Mediation and Arbitration
and others
[5]
(Lifecare)
as
follows:
“
A
reconstruction of a record (or part thereof) is usually undertaken in
the following way. The tribunal (in this case the commissioner)
and
the representatives (in this case Ms Reddy for the employee and Mr
Mbelengwa for the employer) come together, bringing their
extant
notes and such other documentation as may be relevant. They then
endeavour to the best of their ability and recollection
to
reconstruct as full and accurate a record of the proceedings as the
circumstances allow. This is then placed before the relevant
court
with such reservations as the participants may wish to note. Whether
the product of their endeavours is adequate for the
purpose of the
appeal or review is for the court hearing same to decide, after
listening to argument in the event of a dispute
as to accuracy or
completeness.
I
appreciate that reconstructing parts of the record some two years
after the event will be time consuming and may prove frustrating.
However, the situation is not all bleakness. In addition to the
commissioner's handwritten notes, Mr Mbelengwa filed a full closing
argument of nine typewritten pages which should prompt his
recollection. Those concerned are expected to cooperate. With the
requisite
cooperation, there is reason to hope that a fair
reproduction will be feasible.”
[41]
The steps set out in
Lifecare
should be followed to
reconstruct an inaudible or incomplete record. Only if the process of
reconstruction proved to be fruitless
or impossible or if the outcome
of the process is inadequate to proceed with the review application,
may the applicant approach
the Judge President for direction on the
further conduct of the review application.
[42]
An applicant seeking such direction from the Judge President should
set out in detail what steps were taken to ensure that
a record,
necessary for the review application, was placed before Court, why
the available record is inadequate to proceed with
the review and
that the parties have done what they could to place a proper record
before Court but are unable to do so.
[43]
The Judge President and Judges in this Court are not to advise
parties to file an application to compel in terms of Rule 7A(4)
or to
order them to reconstruct a record where the bargaining council
already indicated a willingness to facilitate such a process.
Parties
should explore and exhaust the remedies available to them before
approaching this Court for direction on the further conduct
of the
review application.
[44]
In casu
the order sought by the Applicant to direct the
parties to hold a meeting to reconstruct the record is an abuse of
process. The
bargaining council has identified the need to
reconstruct and indicated a willingness to assist with the process as
far back as
June 2016. Instead of expediting the reconstruction
process, the Applicant approached this Court to order the parties to
reconstruct
the record. One year after the need to reconstruct was
identified, the parties have not moved one step closer to attempt the
reconstruction
of the record. The delay and this application could
have and should have been avoided.
Costs
[45]
Costs should be considered against the requirements of the law and
fairness.
[46]
The requirement of law has been interpreted to mean that the costs
would follow the result.
[47]
In considering fairness, the conduct of the parties should be taken
into account and
mala fides
, unreasonableness and
frivolousness are factors justifying the imposition of a costs order.
[48]
Mr Cronje for the Applicant submitted that this is
a
bona fide
application,
this is not a case where the Applicant did nothing and there is still
a relationship between the parties.
[49]
Mr Makhura for the Third Respondent argued that
the Applicant should have filed an application to reinstate the
review application
and that the current application is incompetent.
He further submitted that the Applicant is not serious to obtain the
record as
from August 2016 there was no further movement or any steps
taken to secure the record. Mr Makhura also took issue with the fact
that the matter could have been filed in Johannesburg but was brought
in Port Elizabeth.
[50]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[6]
it was emphasized that:
“……
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.”
[51]
A cost order is a method of ensuring that decisions to litigate in
this Court are taken with due consideration of the law and
the
prospects of success.
[52]
The relief sought by the Applicant was not competent and I see no
reason to deviate from the ordinary rule that costs should
follow the
result.
[53]
In the premises I make the following order:
Order
1.
The
application is dismissed with costs.
__________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate P R Cronje
Instructed
by: Van de Wall Incorporated Attorneys
For
the Third Respondent: Mr M Makhura of Cheadle Thompson & Haysom
Attorneys
[1]
Ralo
v Transnet Port Terminals and Others
[2015]
ZAECPEHC 68 (17 June 2015),
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
[2014]
5 BLLR 516
(LC), (2014) 35 ILJ 1672 (LC),
Rumba
Samuels v Old Mutual
Bank
Case
no DA30/15 handed down on 25 January 2017.
[2]
Ralo
v Transnet Port Terminals and Others
[2015]
ZAECPEHC 68 (17 June 2015),
[2015] 12 BLLR 1239
(LC), (2015) 36 ILJ
2653 (LC).
[3]
Ralo at para 10.
[4]
Papane
v Van Aarde NO and others
(2007)
28 ILJ 2561 (LAC),
[2007] 11 BLLR 1043
(LAC),
Toyota
Motors (Pty) Ltd v CCMA and others
[2016]
BLLR 217
(CC),
Baloyi
v MEC for Health and Social Development, Limpopo and others
(2016)
37 ILJ 549 (CC), Unreported judgment of the Labour Appeal Court JA
19/2015
IDWO
obo Cyril Linda and 4 others v Super Group and others
(28
February 2017)
[5]
(2003)
24 ILJ 931 (LAC).
[6]
2012 33 ILJ 2117 (LC).