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[2018] ZALCJHB 130
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Sibanyoni v Trans-Africa Projects (Pty) Ltd (J385/16) [2018] ZALCJHB 130 (13 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JS385/16
In
the matter between:
MAPULE
MUSHAISANO
SIBANYONI
Applicant
and
TRANS-AFRICA
PROJECTS (PTY) LTD
Respondent
Heard
:
23 February 2018
Delivered
:
13 March 2018
Summary:
A tale of two conflicting directives issued by Judges in Chambers.
What then becomes the status of those directives? The history
of the
directives and the enforcement thereof considered. In applications of
this nature prospects of success play a minimal or
no role. As long
as the explanation is adequate and acceptable, an applicant must be
afforded her rights guaranteed in section
34 of the Constitution.
Held (1) the application is re-enrolled. (2) There is no order
as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an opposed application
to re-enrol a condonation application which was struck of the roll
due to non-appearance of the applicant.
The applicant was ordered to
make an application for re-enrolment
[1]
.
Before then, the applicant had invoked the provisions of Rule 15 (1)
read with the provisions of clause 14.4.2
[2]
of the Practice Manual of the Labour Court of South Africa
[3]
.
The explanation under oath was presented to Acting Justice Snyman
[4]
.
He then issued a directive (decision) wherein he refused to re-enrol
the matter and archived it. For some unknown reasons, the
file was
placed before Madam Justice Nkutha-Nkontwana for another directive.
She then directed (ordered) the applicant to make
a formal
application for re-enrolment in accordance with Rule 11
[5]
.
The applicant obliged. The present application serves before me
consequent upon the directive (order) by Madam Justice
Nkutha-Nkontwana.
Background
facts
[2]
The applicant joined the respondent as an
independent contractor in 2005. On or about 1 June 2011, the
applicant was permanently
employed by the respondent in the position
of Document Controller/Receptionist. During April 2015, the
respondent commenced a retrenchment
process. The applicant opted for
a Voluntary Severance Package (VSP). Following that, a separation
agreement was concluded. The
applicant received a sum of money as
part of the separation package. In May 2015, the applicant referred a
dispute of alleged unfair
dismissal based on operational requirements
to the CCMA. A settlement agreement was concluded in terms of which,
the applicant
received further sums of money.
[3]
On 26
October 2015, the applicant referred a dispute of alleged unfair
discrimination. On 24 March 2016, the CCMA declined jurisdiction.
On
25 July 2016, the applicant referred the dispute to this court in
terms of Rule 6. At the same time an application for condonation
for
the late filing of the statement of case was launched. The referral
and the application for condonation were opposed. The condonation
application was enrolled for hearing on 18 November 2016. On this
day, owing to the applicant’s non-appearance, Justice La
Grange
struck the matter off the roll and reserved costs. On 22 June 2017,
the applicant requested that the matter be re-enrolled
as she was not
aware of the set down date, since her lawyers did not inform her
[6]
.
[4]
The file was
forwarded to Acting Justice Snyman. After considering the request
supported by an affidavit, he refused to re-enroll
the matter and
actually directed that it be archived. Almost two months later, Madam
Justice Nkutha-Nkontwana, issued another directive
to the effect that
the applicant must invoke the provisions of Rule 11
[7]
.
Consequent thereto, the applicant launched the present application,
seeking to have the matter that was struck off the roll to
be
re-enrolled.
Evaluation
[5]
Before I
consider the application on its merits, I need to deal with a
point
in limine
raised by the respondent
[8]
.
The respondent sought an order dismissing the matter on the strength
of this point. This point raises an interesting and somewhat
a novel
point. There are two contradictory directives. Before I consider the
legal status of both directives, it is imperative
to consider the
meaning and content of each. Perhaps a little bit of history might
assist.
The
origin of practice directives in this court.
[6]
Some years back a form titled “Judge’s
directions in terms of Rule 6 (5)” was designed. This form
allowed a judge
sitting in chambers to direct whether the matter
should be enrolled on the unopposed motion court, opposed motion
court, for default
judgment, for trial, for diary, for pre-trial and
other directions. The Rules of the Labour Court are tantamount to
subordinate
legislation and are binding on the Labour Court. The
relevant rule provides thus:
Judge’s directions
(5) When the minute of a pre-trial
conference is delivered or the time limit for its delivery lapses,
whichever occurs first, the
registrar
must
send the file to a
judge of the court
for directions in terms of this subrule
.
The judge who receives the file from the registrar may
-
(a)
direct the registrar to enroll the matter for a hearing if the judge
is satisfied
that the matter is ripe for hearing; or
(b)
direct that an informal conference be held before a judge in chambers
to deal with
any pre-trial matters; or
(c)
direct the parties to convene a further formal pre-trial conference
at a date, time
and place fixed by the registrar, at which a judge
must preside, to deal with any pre-trial matters.
[7]
It is clear that this subrule is meant to apply to
referrals in terms of Rule 6. There are no similar provisions in Rule
7, which
deals with applications. It must then immediately follow
that both directives are not authorised by the subordinate
legislation.
Unless of course if the directives can be accommodated
under Rule 11 (3). The rules define the court to mean-the Labour
Court established
by section 151 of the Act and includes any judge of
the court. On the face of it, it seems to me that a judge may adopt
any procedure
that he or she deems appropriate in the circumstances.
This simply entails that if the rules do not provide for a situation
that
arises, then a judge may fashion out any procedure he or she
deems appropriate. The further question to be considered is where and
when? The subrule refers to in proceedings or contemplated
proceedings.
[8]
The
dictionary meaning of the word proceedings mean a lawsuit; all or
some part of a cause heard and determined by a court or any
legal
step or action taken at the direction of a court or any measures
necessary to prosecute or defend an action. In the context
of the
Rules proceedings must mean a referral in terms of rule 6 and
applications or motion proceedings in terms of Rule 7. Rule
3 (1)
provides that any party initiating proceedings must do certain
things. This to my mind must be what is termed contemplated
proceedings. When a party applies for a case number, he or she
contemplates referral proceedings or motion proceedings. A statement
of claim is known as a document initiating proceedings
[9]
.
Rule 7 makes no reference to proceedings being initiated by a
document like in Rule 6 but simply provides that an application
must
be brought.
[9]
It seems to
me that the word proceedings ought to be given a narrow meaning. It
relates only to referrals and not applications.
I say so because in
the rules, the only time there is reference to a document initiating
proceedings, is when a statement of case
is being referred to. In my
view, a judge is authorised to issue directions on any matter
involving a referral and not applications.
Even in a striking off the
roll situation, a judge is authorised to decide and order and not
direct
[10]
.
That being my view, I conclude that the two “directives”
[11]
are not authorised by the subordinate legislation. The directives
involved in this matter do not equates directives that may be
issued
by a Judge President or a head of a court.
[10]
Normally,
such directives come in a form a rule or practice direction. In
relation to those the court has stated the position as
follows.
In
Tadyn Trading cc t/a
Tadyn Consulting Services v Steiner and others
[12]
states that:
“
in
law the Judge President was entitled to issue practice directives
relating to the procedure of setting down matters on the roll.
”
[11]
The court in
ABSA
Bank Limited v Lekuku Daniel
[13]
stated that
“
the
High Court in issuing Practice Directive is clearly entitled to
regulate its own intimate process and does so not only based
on the
existing common law but is also entitled to do so by virtue of s173
of the Constitution… This court based on constitutional
principles and the inherent common law right principles referred to
above clearly entitles the Judge President and the Deputy Judge
President to issue practice directives where appropriate.”
[14]
Therefore,
I am of a view that until authorized by the Rules, the practice of
issuing chambers directives in respect of applications
need to be
reconsidered as it is not authorized by the Rules. This of course is
different from what the High Court said in relation
to practice
directives. The court in
In
re: Several matters on the urgent court roll
[15]
stated
that:
[13]
I am consequently of the view
that the word ‘action’ in s 43 of the Supreme
Court Act
should be read to include all proceedings in the High Court.
This
would entitle the Judge President to issue practice directives
relating to the setting down of matters both in actions and
in the
applications.
[16]
The
effect of the Practice Manual on directives.
[12]
As pointed
out above, the practice of issuing directives in chambers existed
long before the coming into operation of the Practice
Manual. There
are decisions of this court to the effect that the Practice Manual is
binding in effect. The LAC in
Samuels v Old Mutual
Bank
[17]
held thus:
“
The
consolidated practice manual which came into operation on
2 April 2013 constitutes a series of directives issued by
the Judge President over a period of time. Its purpose is,
inter
alia
,
to
provide access to justice by all those whom the Labour Court serves;
promote uniformity and/or consistency in practice and procedure
and
set guidelines on standard of conduct expected of those who practice
and litigate in the Labour Court. Its objective is to
improve the
quality of the court’s service to the public, and promote the
statutory imperative of expeditious dispute resolution.
The
practice manual
is
not intended to change or amend the existing Rules of the Labour
Court
but
to enforce and give effect to the Rules, the Labour Relations Act as
well as various decisions of the courts on the matters
addressed in
the practice manual and the Rules.
Its
provisions therefore are binding
.
The Labour Court’s discretion in
interpreting
and applying
the provisions of the practice manual remains intact, depending on
the facts and circumstances of a particular matter before the
court.”
[18]
(Emphasis added and footnotes omitted.)
[13]
The Practice
Manual is not a replacement of the Rules. The Rules do make provision
for the striking off of matters from the roll.
[19]
However according to clause 14.4.2 of the Practice Manual, provision
is made only for re-enrolment by giving an explanation under
oath.
The clause does not provide that the re-enrolment can be done or
refused by a Judge. Therefore, this clause must be read
in
tandem
with the provisions of rule 15. There a judge is authorised to decide
based on the affidavit or affirmation and not to issue a
directive as
it were. The other provision for enrolment in terms of the Rules
occur in subrule 6 (8)
[20]
.
[14]
Rule 7 (6)
(a) provides that the registrar must allocate a date for the hearing
of the application once the replying affidavit is
delivered, or once
the time limit for delivering a replying affidavit has lapsed,
whichever occurs first. The power to re-enroll
matters that are
struck off the roll lies with a single judge in chambers. That single
judge issues a decision and not a directive.
Therefore, if the
decision is valid in law, which I doubt though, the principle of
functus
officio
must apply. Therefore, only if Snyman AJ’s decision to refuse
enrollment is valid in law, to my mind, the only remedy available
to
the applicant is one of rescission, because, ordinarily decisions
made in chambers are made in the absence of a party
[21]
.
[15]
I,
accordingly also agree with the respondent that the order of
Nkutha-Nkontwana J, ordering the present application, is lacking
in
legal consequences. In terms of the enabling rule, an order that an
application for re-enrolment must be made instead of a decision
to
refuse to re-enroll has to be made by the judge before whom the
affidavit or affirmation is placed. In other words, Snyman AJ
was
authorised at the time to order the launching of the present
application before me. He did not do so. However, my reading of
rule
15, suggests that the only decision that Snyman AJ was authorised to
make is the re-enrollment and not the refusal thereof.
He ought to
have issued an order to have the application for re-enrolment to be
made
[22]
and be decided in an open court.
[23]
If for any reason, Snyman AJ understood the provisions of clause
14.4.2 to empower him to refuse enrollment, then I must say the
following. A superior court has overriding jurisdiction to prevent
abuse of process, it has inherent power to make any orders furthering
the administration of justice only when a statute or rule of court is
silent about the situation.
[24]
In
Western
Bank Limited v Packery
[25]
,
it was held that Rules of Court are delegated legislation, they have
statutory force and are binding on the court.
[16]
Instead of
invoking the provisions of the rule by ordering the present
applications, Snyman AJ invoked clause 16
[26]
.
To my mind invocation of the clause was unwarranted. The
circumstances contemplated in the clause were not present. To my mind
the decision of Snyman AJ to refuse to enroll this matter is
inconsistent with the enabling rule and also the Constitution. Since
to my mind it is not in line with the enabling rule, it is not
binding on me. It was made without the necessary powers and is
brutum
fulmen
.
Might I add, issuing a directive is not an administrative action in
this context. Perhaps it is in the context of the Judge President
issuing a practice directive as empowered. Therefore the principle in
Oudekraal
[27]
does not find application. The order of Nkutha-Nkontwana J is also
not in line with the enabling rule. There is no evidence before
me
that after Snyman AJ’s decision, was there a further affidavit
placed before her to enable her to invoke the provisions
of Rule
15(3).
[17]
Having said
all that, I do not believe that in the interest of justice, I can
refuse to hear the present application because it
was not properly
ordered. In
Greenberg
v Khumalo and another, Greenberg v Du Preez and another
[28]
,
the High Court was faced with almost a similar situation. In dealing
with the matter, Acting Justice Potgieter refused to apply
a
directive that required an affidavit before a matter that was struck
off the roll is re-enrolled.
[29]
The
court found that in terms of Uniform Rules enrolment is the function
of a registrar and anything contained in a practice directive
cannot
serve as a bar to enrolment of a matter. Section 34 of the
Constitution entitles the applicant to be before me and have
her
dispute resolved by a court of law. I am seized with an application,
clearly authorised by rule 15(3) to be the appropriate
path for a
party whose matter has been struck off the roll. Also, section 1 of
the Labour Relations Act, enjoins speedy resolution
of labour
disputes. I shall now turn to the merits of the application.
Should
this matter be re-enrolled?
[18]
This
application is not akin to an application to reinstate a lapsed
appeal and or review. The principles applicable to condonation
are
not applicable in this matter. The applicant must simply provide an
adequate and acceptable explanation. In
Khunou
and others v M Fihrer & Son (Pty) Ltd and others
[30]
,
the
court had the following to say.
The
proper function of a Court is
to try disputes between litigants who have real grievances and to see
to it that justice is done.
The rules of civil procedures exist
in order to enable courts to perform this duty with which, in turn,
the orderly functioning,
and indeed the very existence, of society is
inextricably interwoven. The Rules of Court are in a sense merely a
refinement of
the general rules of civil procedure. They are designed
not only to allow litigants to come to grips as expeditiously and as
inexpensively
as possible with the real issues between them, but also
to ensure that the Courts dispense justice uniformly and fairly, and
that
the true issues which I have mentioned are clarified and tried
in a just manner.
[19]
To my mind the above sums up the duty of a court in applications of
this nature. Although this was said in 1982, it resonates
well with
the constitutional imperatives set out in section 34 of the
Constitution.
Is
the applicant’s explanation adequate and acceptable?
[20]
I must state upfront that although I have said the
order of Nkutha-Nkontwana J is not in line with the rules, it was
nonetheless
communicated to the applicant by the registrar on 28
August 2017. In other words, by that time the applicant knew that she
ought
to seek an indulgence from this court. Like an applicant for
condonation, such an applicant must act as soon as knowledge is
gained
that condonation is required. The application before me was
only launched on 20 September 2017, with no explanation why it was
not brought soon after the 28
th
of August 2017. To my mind she cannot be non-suited because of this.
[21]
The
explanation of the applicant is simply that she was unaware of the
date since her attorneys of record withdrew and the notice
of set
down was sent to them and not her. The applicant’s attorneys
withdrew on 30 August 2016. The registrar sent a notice
of set down
to the parties on or about 25 October 2016. Indeed, according to the
records, the set down was sent to the erstwhile
attorneys and not to
the applicant. The respondent seems to have sent an email to the
applicant on 17 November 2016 at about 9:28
AM advising her of the
set down the following day. There is no evidence that the applicant
indeed received this email. Nonetheless,
the duty to send notices of
set down is that of a registrar and not the other party
[31]
.
I am therefore satisfied that the applicant did not receive
notification. Such is a reasonable and an acceptable explanation.
Does
the applicant possess reasonable prospects of success nonetheless?
[22]
The reasonable prospects of success required for
the purpose of this application could be whether the late filing of
the statement
of case is condonable. In the condonation application,
the reasonable prospects of success-that the applicant was subjected
to
an automatically unfair dismissal-will be a factor. If she does
not possess prospects condonation shall be refused. If she does
not
possess prospects there it would be a futile exercise to grant this
application, so it was submitted.
[23]
However, in my view, at this stage I am not
hearing the condonation application. I can neither refuse nor grant
it. Therefore, prospects
of success play a minimal role if any at
this stage. What is important is the explanation for the default. I
say so because if
Snyman AJ had allowed the matter to be back on the
roll, a decision in keeping with section 34 of the Constitution in my
mind,
the applicant would still have to persuade the judge hearing
the condonation application that she possess prospects of success.
Rule 15(1) requires an explanation for the failure to attend court.
Parties do not attend court only for matters that are meritorious.
Even unmeritorious matters are heard in court. As I said, to my mind,
even if I doubt that the applicant possesses reasonable prospects
of
success on the condonation application, I certainly cannot deny her
access to court. She must have an opportunity to ventilate
her
application for condonation in an open court. Accordingly, I am not
to discuss the prospects of success at this stage, the
applicant is
still burdened to show prospects at the hearing of the condonation
application. To expect her to do so at this stage
would be to
overburden her unnecessarily.
[24]
In summary, both the directives are non-compliant
with the enabling Rule. In the interest of justice, I heard the
application. The
explanation by the applicant is adequate, reasonable
and acceptable. Prospects of success play a minimal role at this
stage. Accordingly,
the application ought to be granted with no order
as to costs.
[25]
In the results, I make the following order:
Order
1.
The application for condonation is hereby
re-enrolled.
2.
No order as to costs.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
In Person
For
the Respondents:
Advocate F Venter
Instructed
by:
Cowan-Harper Attorneys, Sandton.
[1]
The Nkutha-Nkontwana J directive.
[2]
14.4.2 A matter struck from the roll will only be re-enrolled if a
proper explanation for
non-appearance is given. The explanation must be on oath.
[3]
The Manual came into effect from 2 April 2013
[4]
As decreed by Rule 15 (2).
[5]
11
Interlocutory applications and procedure not specifically provided
for in other rules
(1)
The following applications must be brought on notice, supported by
affidavit:
(a)
Interlocutory applications;
(b)
other applications incidental to, or pending, proceedings referred
to in these rules
that are not specifically provided for in these
rules; and
(c)
any other applications for directions that may be sought from the
court.
(2)
The requirement in sub rule (1) that affidavits must be filed does
not apply to applications that deal with procedural aspects.
(3)
If a situation for which these rules do not provide arises in
proceedings or contemplated proceedings,
the court may adopt any
procedure that it deems appropriate in the circumstances.
(4)
In the exercise of its powers and in the performance of its
function, or in any incidental matter, the court may act in a
manner
that it considers expedient in
the circumstances to achieve
the objects of the Act.
[6]
A procedure contemplated in Rule 15 read with clause 14.4 of the
Practice Manual.
[7]
It is not altogether clear why the file was placed before the Madam
Justice. As per the directive of Snyman AJ, the file was
archived.
In terms of clause 16.2 of the Practice Manual, a party to a dispute
in which the file has been archived may submit
an application, on
affidavit, for retrieval of the file, on notice to all the parties
to the dispute. The provisions of Rule
7 will apply to an
application brought in terms of this provision. There is no
indication that such an application was launched
or not. It seems to
me that what was placed before Madam Justice for the purposes of the
directive was the explanatory affidavit
made on 22 June 2016. This
is pure speculation from my side.
[8]
The point being that the application is moot as per the directive of
Snyman AJ and that the directive of Nkutha-Nkontwana J is
of no
legal effect as the matter has already been decided upon by Snyman
AJ.
[9]
Rule 6 (1) (a)
[10]
15 Matters struck off the
roll
(1) If a matter is struck
off the roll because a party who initiated the proceedings was not
present, the matter may
not be re-enrolled without that party having
provided the court with a satisfactory explanation, under oath or
affirmation, for
the failure to attend court.
(2) The affidavit or
affirmation must be delivered and the registrar must place it before
a judge in chambers,
to decide
whether the matter may be
re-enrolled.
(3) The judge before whom
the affidavit or affirmation is placed
may order
that an
application for re-enrolment be made. In that event, the application
must comply with rule 11.
[11]
However, although they are labelled directives, in truth they are
decisions of the judges.
[12]
[2014] 5 BLLR 516 (LC)
[13]
Absa Bank Limited
v Lekuku (32700/2013) [2014] ZAGPJHC 244
[14]
Paragraph 22 and 23
[15]
[2012] JOL 29563 (GSJ)
[16]
See paragraph 12 – referenced
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism
2004 (4) SA 490
(CC)
[17]
[2017] ZALAC 10.
[18]
Id at paras 14-5.
[19]
Ibid fn 6
[20]
(8) (a) When a judge decides that
any
directions given in terms of this rule
have been satisfied, the judge
must
direct the registrar to enrol
the matter for hearing.
(b)
When the registrar receives a direction in terms of paragraph (a),
the registrar must enrol the matter and notify the parties
of the
time, date and place that has been allocated for a hearing.
[21]
165 Variation and rescission of orders of Labour Court
The
Labour Court, acting of its own accord or on the application of any
affected party may vary or rescind a
decision
, judgment or
order
(a)
erroneously sought or erroneously granted
in the absence of any
party affected by tha
t judgment or order.
[22]
Section 34 of the Constitution provides that everyone has the right
to have any dispute that can be resolved by application of
law
decided in a fair public hearing before a court or, where
appropriate another independent and impartial tribunal or forum.
[23]
Section 160 (1) of the Act requires proceedings to be carried out in
an open court.
[24]
See ABSA Bank Ltd v De Villiers and another [2010] 2 All SA 99
(SCA).
[25]
1977 (3) SA 137 (T)
[26]
16
ARCHIVING
FILES
16.1 In
spite of any other provision in this manual, the Registrar will
archive a file in the following
circumstances:
·
In the case of an application in terms of Rule 7 or Rule 7A, when a
period
of six months has elapsed without any steps taken by the
applicant from the date of filing the application, or the date of
the
last process filed.
[27]
Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA). See also Merafong City Local Municipality v Anglogold Ashanti
2016 ZACC 35
[28]
[2012] ZAGPJHC 91 (11 May 2012)
[29]
9.22 STRIKING FROM THE ROLL
4 If a matter has been struck from
the roll, counsel in the course of the week in which the matter was
struck from the roll, may
seek that the matter be re-enrolled. The
matter will only be re-enrolled if a proper explanation for
non-appearance is given.
In appropriate circumstances, the
explanation must be on oath.
5 if a matter has been struck from
the roll it may only be re-enrolled for a subsequent week if
simultaneous with the filing of
J118, an affidavit explaining the
previous non-appearance is filed.
[30]
1982 (3) SA 353 (W)
[31]
Rule 14 (2)