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[2018] ZALCJHB 96
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Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, Ellies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR484/15) [2018] ZALCJHB 96; (2018) 39 ILJ 1748 (LC) (9 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR 484/15
In
the matter between:
ELLIES
ELECTRONICS (PTY)
LTD Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
&
ARBITRATION First
Respondent
COMMISSIONER
KHUMALO, B N.O. Second
Respondent
MEMMO
G Third
Respondent
IN
RE REVIEW APPLICATION
ELLIES
(PTY)
LTD Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
&
ARBITRATION First
Respondent
COMMISSIONER
KHUMALO, B N.O. Second
Respondent
MEMMO
G Third
Respondent
MEGATRON
SA (PTY) LTD
Fourth
Respondent
(FORMERLY
ELLIES (PTY) LTD
Heard:
27 February 2018
Delivered:
09 March 2018
Summary:
Practice and procedure:
Application for reinstatement of withdrawn application for review of
arbitration award – Withdrawal
being akin to absolution order
allows for reinstitution and not reinstatement of proceedings –
Reinstatement possible in
respect of matters pending before court
such as those removed from or struck off the roll - Application
dismissed.
JUDGMENT
LEKALE,
AJ
INTRODUCTION
AND BACKGROUND
[1]
This is unopposed motion for reinstatement of a review application
instituted and later withdrawn by the applicant’s predecessor
in business Ellies (Pty) Ltd (“the fourth respondent”)
which has since changed its name to Megatron (Pty) Ltd and is
currently under supervision and business rescue. It is, further, an
application for applicant’s joinder as co-applicant in
the
review application as a consequential relief.
[2]
The application has its roots in the arbitration award issued on 05
March 2015 against the fourth respondent in favour of the
third
respondent by the second respondent in his capacity as the
arbitrating commissioner with the first respondent.
[3]
The fourth respondent felt aggrieved by the award and launched an
application in terms of section 145 of the Labour Relations
Act (“the
LRA”) under the above case number for review of the same on the
01 April 2015. On 01 May 2015 and while the
review application was
pending before the court the applicant purchased the
consumer/commercial division of the fourth respondent’s
business, in which the third respondent was employed, as a going
concern, thus, triggering the operation of the provisions of section
197(2) of the LRA with regard to automatic transfer of employment
contracts of employees such as the third respondent.
[4]
The applicant, further, became
bound
ex lege
by the arbitration award issued in favour of the third respondent
insofar as there existed no agreement to the contrary.
[1]
[5]
On 12 June 2015 the fourth respondent changed its name to Megatron SA
(Pty) Ltd (the fourth respondent in the review application)
and on 12
August 2016 it got provisionally placed under supervision and
business rescue in terms of
section 131(1)
of the
Companies Act 71 of
2008
which order was confirmed on 19 August 2016. On 18 August 2016
the review application was set down for hearing on 22 March 2017
but
before the hearing could take place the fourth respondent,
represented by its appointed business rescue practitioner, withdrew
the same on 14 March 2017.
[6]
Following such developments, the third respondent invoked the
provisions of
section 158(1)(c)
of the LRA seeking to make the award
an order of court and, further, sought to substitute the applicant’s
holding company
for the fourth respondent. The applicant, thereafter,
sought in vain to secure the third respondent’s consent to
reinstatement
of the review application as well as its joinder as the
second applicant in the review application. The correspondence
directed
to the third respondent’s attorneys simply went
unanswered.
[7]
The applicant now approaches this court for reinstatement of the
withdrawn application for review and intervention in those
review
proceedings. The application serves unopposed before the court
although all the respondents have been properly served. After
hearing
the matter on 27 February 2018, I reserved judgment as I needed to
satisfy myself as to whether it is possible, in law
and/or practice,
to reinstate a withdrawn matter in the light of all the authorities
relied upon by the applicant party.
ISSUE
FOR DETERMINATION
[8]
I am enjoined by the facts and circumstances in the instant matter to
determine firstly whether or not the withdrawn review
application
can, in law and/or practice, be reinstated with the applicant party
contending in the positive and pointing out that
a withdrawal has the
same effect as an order of absolution from the instance.
[9]
A positive answer to the preceding question raises the question
whether or not the applicant can, in law, intervene in the review
proceedings regard being had to the provisions of
section 197
of the
LRA applicable to it.
CONTENTIONS
FOR AND ON BEHALF OF THE APPLICANT
[10]
[10] Mr Hollander for the applicant submits,
inter alia
, to
the effect that according to case law the withdrawal of the matter
does not deal with the merits of such a matter and has the
effect of
an order of absolution from the instance. In his view a withdrawn
application can be reinstated in the same manner as
a labour dispute
withdrawn before the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”).
[11]
In Mr Hollander’s view the applicant has direct and substantial
interest in the review application in light of the provisions
of
section 197
of the LRA and should, as such, be allowed to intervene
as a co-applicant in the matter.
APPLICABLE
LEGAL POSITION
[12]
The withdrawal of a matter is
akin to an order of absolution from the instance and, as such, does
not bar a party from reinstituting
the proceedings with the
consequence that the
exceptio
rei judicatae
is
not available as a defence in the same way in which withdrawn
criminal charges can, in terms of our criminal justice system,
be
reinstituted against the accused person without a plea of
autrefois
acquit
or
autrefois
convict
being available to
the latter.
[2]
[13]
The test for joinder in our law
is that a party sought to be joined in the proceedings must have a
direct and substantial interest
in the matter in the sense of “
an
interest in the right which is the subject matter of the litigation
and not merely a financial interest
”.
[3]
APPLICATION
OF THE LEGAL POSITION TO THE FACTS AND FINDINGS
[14]
The applicant, in effect, seeks to withdraw the withdrawal insofar as
it prays for the reinstatement of the withdrawn review
application.
[15]
In my view reinstatement in the context of the instant matter means
restoration of the review application to the position it
occupied on
the books of the Registrar, retaining its case number as if it was
always pending before the court. In this regard
it is worth noting
that the present application is brought under the same case number as
the review application as if the latter
is still pending before the
court.
[16]
The applicant, thus, seeks to revive the review application as
opposed to reinstituting the proceedings in the
same way
as the plaintiff would pursue the absolved defendant by reinstituting
the proceedings consequent to an order of absolution
from the
instance.
[17]
In my considered opinion it is not possible to reinstate withdrawn
proceedings regard being had,
inter alia
, to the need for
finality in legal disputes and expeditious resolution of labour
disputes in particular. The need to comply with
prescribed time
frames such as the six-week period limited by
section 145(1)
of the
LRA for launching review proceedings also militates strongly, in my
view, against reinstatement of withdrawn review proceedings
as
opposed to reinstitution of the same in the form of re-application.
[18]
Reinstatement is, in my view, limited to matters removed from or
struck off the court roll insofar as such matters are pending
before
the court and only have to be reinstated on the roll for purposes of
being heard and finalised.
[19]
In the instant matter the review application was withdrawn on 14
March 2017 while the present application was delivered more
than
seven months later on 03 November 2017. The reinstatement desired
in
casu
is foreign to our law and equity. It is, further, neither
recognised nor regulated, as a relief, by our practice rules. Even if
such a relief were sanctioned by the common law, it would be
necessary, in the circumstances of the instant matter, for the
applicant
to apply for condonation regard being had to the fact that
at common law applications are supposed to be brought within a
reasonable
time
[20]
In my judgment the option available to the applicant in the
circumstances is reinstitution of review proceedings in the same
way
as the applicants in the
Ncaphayi
and
SAMWU
matters
(
supra
) sought and were, in fact, allowed to refer withdrawn
disputes to the CCMA afresh as opposed to reinstating them.
[21]
Reinstatement is, thus, in law and equity not available to the
applicant as a relief in the circumstances of the instant matter.
[22]
Joinder or intervention is also not possible at this stage because
there is simply no review application before the court.
Order
[23]
The application is dismissed.
____________________
LJ
Lekale
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr L Hollander
Instructed
by:
Webber Wentzel
For
the Respondent:
No appearance
[1]
See
section
197(5)(b)(i)
of the LRA and
High
Rustenberg Estate (Pty) Ltd v NEHAWU obo
Cornelius
& Others
(2017) 38 ILJ 1758 (LAC).
[2]
See
Ncaphai
v CCMA & Others
[2011]
32 ILJ 402 (LC) at paragraph 27;
SAMWU
v
CCMA
& Another
[2014] 35 ILJ 2011 (LC) and
section 6(a)
of
Criminal Procedure Act, 51
of
1977
.
[3]
S
ee
State Information Technology Agency (Pty) Ltd v Swanevelder &
Others
[2009] 30 ILJ
2786
(LC).