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[2017] ZALCPE 27
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Samuels v Aspen Pharmacare Ltd (P556/17) [2017] ZALCPE 27 (20 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
NOT
REPORTABLE
Case
Number P556/17
In
the matter between:
VERONIQUE
SAMUELS
Applicant
and
ASPEN
PHARMACARE LTD
Respondent
Heard:
19 December 2017
Delivered:
20 December 2017
JUDGMENT
POTGIETER,
AJ
[
1]
This is an application brought in terms of Section 158(1)(c) of the
Labour Relations Act No 66 of 1995 (LRA) for an order –
(i)
“
The Arbitration Award handed down
under the auspices of the National Bargaining Council under
case number ECCHEM -13/14 and
handed
down on 15 February 2016 be made an order of Court.
(ii)
The Respondent pay the Applicant R53
606.84
(iii)
The respondent to re-instate the
Applicant on terms and conditions of employment applicable to the
applicant immediately prior to
her dismissal on 11 July 2014
(iv)
The respondent to pay the Applicant
interest on the amount of R53 606.84 at the legal rate from 15
February 2016 to date of final
payment, both days inclusive.
(v)
Costs of the application on an
Attorney and Client sacle
(vi)
Further and / or alternative
relief
[2]
The matter was placed on the unopposed roll.
[3]
The respondent filed an explanatory service affidavit on 19 December
and filing notice with answering affidavit that was filed
under case
number PR30/16 (on 6 December 2017)
BACKGROUND
[4]
The applicant was dismissed on11 July 2017 and obtained an award in
her favour which the respondent took on review.
[5]
The respondent did not file the record as required within 60 days.
The review application is thus deemed to have lapsed in terms
of the
provisions of item 11.2.3 of the Labour Court Directive
[6]
Mr. Thys, on behalf of the applicant argued that the matter should
proceed as unopposed as the respondent did not give notice
of
intention to oppose but filed an answering affidavit under the review
application case number.
[7]
Mr. Brandt on behalf of the respondent argued that the matter should
be postponed to the opposed roll and tendered costs I was
inclined to
postpone the matter to the opposed roll but after consideration
proceeded to hear the parties.
[8]
Mr Thys convinced me that I should deal with the matter on the
unopposed roll
EVALUATION
[9]
Rule 7 is peremptory in nature the respondent was required to deliver
a notice of opposition and answering affidavit within
ten days. The
respondent filed only an answering affidavit (albeit under the wrong
case number)
[10]
The answering affidavit was on own admission not served on the
applicant, it cannot thus be said that opposing papers were
delivered
as required by the rules.
[11]
Section 145(7) of the LRA is explicit to state that a review does not
automatically suspend the operation of an award. It will
only be
suspended if security is furnished as provided for in subsection 8.
[12]
There is nothing before me suggesting that the respondent had sought
an extension from the respondent or applied for an extension
of time
to prevent item 11.2.3. of the Practice Manuel kicking in. The
factual situation is thus that the review is withdrawn.
There is thus
no lis pending between the parties
[1]
[13]
The respondent chose not to furnish security when it brought the
review nor after the review was withdrawn (by not complying
with the
60 day period)
[14]
The applicant established in her papers that she tendered her
services as she was obliged to do in terms of the award and demanded
payment, both were refused.
[15]
I am convinced that the applicant is entitled to the primary relief
sought in her papers.
COSTS
[15]
The applicant did not place anything before me in her founding
affidavit to warrant attorney and client costs to be awarded.
I am,
however, convinced that costs should follow the result.
[16]
In the event the following order is made:
Order:
1.
The arbitration award made by the NBCCI
arbitrator on 15 February under the auspices of the NBCCI under case
number ECCHEM506-13/14
is made an order of the Court.
2.
The respondent must discharge all of its
obligations in terms of the Arbitration award.
3.
The respondent pay interest on the amount
of R53 606-84 at the rate of 10,25% from 15 February 2016
4.
The respondent pay the costs of this
application
-----------------------------------
POTGIETER,
A J
Appearances
For
the Applicant: Advocate M.Thys
Instructed
by Butler Attorneys.
For
the Respondent: Mr. Denver Brandt.
Kirchmanns Inc.
[1]
See Ralo v
Transnet Port Terminals & Others (2015) 36
ILJ
2653
(LC) at paragraph[10] “
To
the extent that the applicant contends that the meaning of the word
'deemed' is such that the dispute between the parties remains
unresolved and that the application has not been withdrawn, the
meaning of 'deemed' in a context similar to the present has been
the
I
subject
of an instructive judgment by the Labour Court of Namibia.
While
Municipal
Council of the Municipality of Windhoek v Esau
2010
(2) NR 414
(LC) (LCA 25/2009 12 March 2010) concerned the lapsing of
appeals, the wording of the rule under consideration in that
instance
is not dissimilar. Rule 17(25) of the Rules of the
Labour
J
Court
of Namibia provide that an 'appeal to which this Rule appliesmust be
prosecuted within 90 days after the noting of such
appeal, and
unless so prosecuted it is deemed to have lapsed'. The word 'deemed'
in this instance was clearly considered to have
conclusive effect —
in the absence of the prosecution of the appeal within
the
A
prescribed
period the appeal was held to have lapsed. (See also
Pereira
v Group Five (Pty) Ltd & others
[1996]
4 All SA 686
(SE) at 698, where the court referred with approval
to
Steel
v Shanta Construction (Pty) Ltd & others
1
973
(2) SA 537
(T), in which Coetzee J stated that the word 'deemed'
means 'considered' or 'regarded' and is used to
B
denote
that 'something is a fact regardless of the objective truth of the
matter'.) 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.