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[2017] ZALCD 17
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Mchunu v Rainbow Farms (Pty) Ltd, In Re: Rainbow Farms (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (D203/15) [2017] ZALCD 17 (12 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: D203/15
In
the matter between:
SENZO
HENDRICK
MCHUNU Applicant
[ 3
rd
Respondent]
And
RAINBOW
FARMS (PTY)
LTD Respondent
[Applicant]
In
Re
RAINBOW
FARMS (PTY)
LTD Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION 1
st
Respondent
COMMISSIONER
EMMANUEL
SKHOSIPHI
NGCOBO 2
nd
Respondent
SENZO
HENDRICK
MCHUNU 3
rd
Respondent
Heard:
01 June 2017
Delivered:
12 June 2017
Summary:
Rule 11 Application to dismiss review application. Applicant in
review application failed to comply with the Practice Manual.
Application to dismiss review and that the arbitration award be made
an order of court granted with costs.
JUDGMENT
GUSH J.
[1]
The 3
rd
respondent in the review application applies in terms of Rule 11 of
the rules of the Labour Court for order dismissing the applicant’s
application to review and set aside the arbitration award handed down
by the second respondent in review application. In order
to avoid
confusion I shall refer to the applicant in the rule 11 application
as Mchunu and the respondent therein as Rainbow.
[2]
Both the review and the Rule 11
applications were enrolled for hearing. As Mchunu had applied to
dismiss the review application
it was necessary to determine this
application first as should it succeed it would dispose of the review
application.
[3]
It is important to record the chronology of
events that led to Mchunu launching the Rule 11 application to
dismiss Rainbow’s
review application.
a.
Mchunu was dismissed by Rainbow on 9
October 2014;
b.
The arbitration relating to Mchunu’s
dismissal was heard on 22 January 2015;
c.
On 5 February 2015 the arbitrator handed
down an award in which award he concluded that Rainbow had unfairly
dismissed Mchunu and
ordered that he be reinstated;
d.
Rainbow received the award on the same day
viz. 5 February 2015;
e.
On 18 March 2015 rainbow served the
application to review the arbitration award on the court;
f.
On 21 May 2015 the CCMA filed the record
with the Labour Court and on the same day the Court sent a Rule 7A(5)
notice to the Rainbow;
g.
On 22 May 2015 Rainbow uplifted the record
from the court file in order to transcribe it;
h.
On 11 November 2015 Rainbow filed the
“transcribed”. record with the Court The record comprised
a copy of the arbitration
award, “bundle “A”
comprising one document, “bundle “B” also one
document, a photo copy of
the arbitrator’s hand written notes
and a typed copy of the transcribed electronic record (Rainbow made
no effort to type
a copy of the handwritten notes);
i.
On 11 July 2016 Rainbow filed a
supplementary affidavit in which the deponent inter alia record that
the typed record refers in
a number of places to “un-interpreted
Zulu”;
j.
On 22 July Mchunu filed a rule 11
application asking for the review to be dismissed as a result of
Rainbow’s failure to diligently
prosecute the review.
k.
Rainbow opposed the Rule 11 application on
12 August 2016 and Mchunu filed an opposing answering affidavit in
the review on 16 August
2016;
l.
On 7 and December 2016 and 23 January2017
Rainbow wrote to the registrar of the Court advising him that
the file had been
indexed, that the matter was “ripe for
hearing” and requested that it be enrolled for
hearing.
[4]
The
rules of the Labour Court require an applicant who wishes to apply
for an award of the CCMA to be reviewed is required to “furnish
the registrar and the other parties with a copy of the record or
portion of the record …”
[1]
[5]
The provisions of Rule 7A(8) that
require an applicant, within 10 days of uplifting the record, files a
notice either that
it stands by its notice of motion or varying the
terms of the notice of motion and an affidavit supplementing the
supporting affidavit.
Not only did Rainbow not comply with this rule
when it filed the record it did so without comment. In so far as
Rainbow did file
a Rule 7A(8)(b) notice and affidavit it did so
exactly 7 months later.
[6]
The
Practice Manual issued in 2013
[2]
deals specifically with an applicant’s duties and obligations
regarding the record and the consequences of not complying
with the
obligation to file the record within 60 days of being advised that it
is available to be uplifted and what steps must
be taken if the
record is incomplete.
11.2
Applications to
review and to set aside arbitration awards and rulings
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.
11.2.4
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.
[7]
In this matter Rainbow did not:
a.
file the record within 60 days;
b.
Request an extension from Mchunu;
c.
Make application for an extension of the
period; or
d.
If it was really concerned about the
record, approach the Judge President for a direction as to the
further conduct of the application.
[8]
In the absence of compliance with the
practice manual it is clear that the review application is deemed
withdrawn. As Rainbow seemingly
simply ignored this provision I am
satisfied that Mchunu was entitled to launch the Rule 11 application
to have the review dismissed.
[9]
By so doing Mchunu, as he is entitled to,
brought the Rule 11 application to bring finality to the matter. In
his prayer for relief
Mchunu seeks not only the dismissal of the
review application but that the award be made an order of this Court.
[10]
It may be contended that where an
application is deemed withdrawn that it is unnecessary to have it
dismissed. Whether the review
is dismissed or whether it is deemed
withdrawn is not relevant to the primary issue viz facilitating the
enforcement of the order
by having it made an order of Court.
[11]
A deeming provision is but a legal fiction.
It presupposes that an applicant may endeavour to have the matter
revived as in the
circumstances of a deemed withdrawal the review has
not actually been withdrawn.
[12]
I am in this matter faced with an
application to dismiss the review application and accordingly I am
satisfied therefor that in
the interests of certainty Mchunu is
entitled to order dismissing Rainbows review application to review
the award as a precursor
to the award being made an order of court.
[13]
The practice directive specifically deals
with the process to be followed when an applicant regards the record
as being inadequate.
There is absolutely nothng on record to gainsay
the conclusion that Rainbow deliberately ignored the practice
directive and waited
until the matter was enrolled thereby
effectively non suiting Mchunu to the effect that the matter would be
unreasonably delayed.
[14]
Rainbow has offered no explanation
whatsoever for its failure to comply with the practice directive. Its
explanation for the delay
as set out in the supplementary affidavit
is unacceptable. The facts of the matter are that Rainbow made no
effort whatsoever to
have the “un-interpreted Zulu”
interpreted or have the hand written notes transcribed. The
essence of the dispute
resolution process prescribed by the Labour
Relations Act is to ensure disputes are expeditiously resolved. In
order to facilitate
this where a record may be lacking the Judge
President of the Labour issued practice directives. Rainbow ignored
these directives
at their own peril.
[15]
This
is an application to dismiss Rainbow’s review application on
the grounds that Rainbow has failed to properly, timeously
or
diligently prosecute the review. I am not asked in this application
to consider the merits of the review. Accordingly and particularly
as
Rainbow has taken no steps whatsoever to reconstruct the record, the
issue regarding the completeness of the record is not relevant.
[3]
What is relevant is Rainbow’s conduct regarding the prosecution
of its application to review the award.
[16]
There is no reason in law or fairness why
the Rainbow should not pay Mchunu’s costs.
[17]
For the reasons set above I make the
following order:
a.
The application by Rainbow Farms (Pty) Ltd
to review the arbitration award KNPM3452-14 brought under case number
D203-15 is dismissed
for want of timeous and proper prosecution
thereof;
b.
The award KNPM3452-14 is made an order of
Court;
c.
Rainbow Farms (Pty) Ltd is ordered to pay
Senzo Hendrick Mchunu’s costs.
D H Gush
Judge of the Labour Court
of
South Africa
APPEARANCES:
FOR THE APPLICANT: Adv P
Blomkamp SC
Instructed
by Llewellyn Cain Attorneys
FOR
THE RESPONDENT: Mr Titus MacGregor Erasmus Attorneys
[1]
Rule
7A(6)
[2]
Came
into effect on 2 April 2013.
[3]
See
Baloyi v MEC Health Limpopo. 2106 (4) BCCR 443 CC and in particular
para 58