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[2018] ZALCJHB 229
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Robor Tube (Pty) Ltd v MEIBC and Others (JR1758/13) [2018] ZALCJHB 229; (2018) 39 ILJ 2332 (LC) (21 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: JR1758/13
In the matter between:
ROBOR
TUBE (PTY)
LTD
Applicant
and
MEIBC
First
Respondent
J MATHEBULA
N.O
Second
Respondent
KEHLA F
MOTLOUNG
Third
Respondent
Application heard: 20 June 2018
Judgment delivered: 21 June 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an application to
reinstate an application to review and set aside an arbitration award
issued by the second respondent.
[2] The factual background can be
summarised as follows. The third respondent was employed by the
applicant in July 1987. He was
dismissed on 30 December 2013 after a
disciplinary hearing into charges of gross misconduct. The third
respondent disputed the
fairness of his dismissal and the matter was
ultimately referred to arbitration. On 17 June 2013, the second
respondent, appointed
as an arbitrator by the first respondent,
issued an award in terms of which he concluded that the third
respondent’s dismissal
was procedurally fair but substantively
unfair and reinstated the third respondent into the applicant’s
employ, on the basis
that he report for duty on 25 June 2013. The
arbitration award was served on the applicant and the third
respondent on 9 July 2013.
The applicant filed an application to
review and set aside the award. That application was enrolled for
hearing on 27 July 2016.
The applicant contended that in terms of the
law that prevailed at the time, the arbitration award had prescribed
on 8 July 2016.
At the time that the review application was to be
argued, the third respondent had not taken any steps to enforce the
award. On
the date of the hearing, the applicant withdrew the review
application. The transcript of the proceedings discloses that the
applicant’s
attorney sought to have the court make a note on
the file that the application had been withdrawn because the award
had become
prescribed. The court declined that invitation, recording
that if the applicant sought to withdraw the application, the court
was
obliged simply to accept that there was no longer an application
that served before the court and that no decision or judgment was
necessary on whether the award had prescribed. The transcript reads:
“The application is withdrawn”. On 12 August
2016, the
third respondent filed an application in terms of s 158(1) (c)
seeking to have the arbitration award made an order of
court. That
application was filed under case number J 1773/16, and remains
pending.
[3] In the notice of motion, the
applicant seeks an order declaring the withdrawal of the review
application to be invalid, and
secondly, an order reinstating the
review application alternatively reviewing and setting aside the
award issued by the second
respondent . Mr Kirstein, who appeared for
the applicant, pursued only prayer two of the notice of motion, i.e.
that the review
application be reinstated.
[4] The applicant relies
Ncaphayi v
Commisison for Conciliation, Mediation and Arbitration & others
(2011) 32
ILJ
402 (LC), a matter where a referral to the CCMA
had been withdrawn, and a fresh referral made. Lagrange J said the
following (footnotes
omitted):
[27]
The second reason relates to the effect of a withdrawal of a referral
to conciliation. The LRA does not deal with the withdrawal
of matters
referred to the CCM a and neither do the rules of the CCM a will stop
rule 13 of the Labour Court rules merely deals
with the procedure to
be followed if a party wishes to withdraw proceedings. It is
instructive to note how the High Court has considered
the effect of a
withdrawal of the matter. It is been held that there was taller the
matter by a party is akin to an order of absolution
from the
instance. Ordinarily, an order of absolution from the instance does
not prevent a party from reinstituted proceedings
and the defendant
absolved in the first proceedings will not be able to raise the
exception rei judicatae if sued again on the
same course of action.
[28]
If the withdrawal of a matter in the High Court at a stage when it is
ripe for hearing does not necessarily prevent the institution
of
fresh proceedings, it would be anomalous if the withdrawal of a
matter at the conciliation stage of dispute resolution under
the LRA
– when no decision on the merits of the dispute is even
possible – precluded a party from making a fresh referral.
Obviously, if the withdrawal under consideration as part and parcel
of the final settlement of the dispute the situation would
be quite
different. However, in this case, the withdrawal was at the
applicant’s own instance and not an intrinsic part of
a
settlement agreement…
[5] In
SAMWU obo Others v Zenzeleni
Cleaning and Transport Services
(unreported, JR 852/13, 23
February 2015) Molohlehi J followed the same principle, agreeing that
the withdrawal of the dispute
and labour matters is similar to an
order of absolution from the instance in civil procedure. Molahlehi J
referred to
Kgobokoe v Commission for Conciliation Mediation and
Arbitration & others
(2012) 33 ILJ 235 (LC), where the court
held that a party was entitled to withdraw a notice of withdrawal. In
that judgment, the
court disagreed with the application of the
doctrine of election applied in
Public Servants Association of SA
obo Strydom v SARS
[2007] JOL 20040
(LC), where Moshoana AJ (as
he then was) held that having referred a dispute to this court for
adjudication and then advising the
respondent that the matter was
‘not being proceeded with’ the applicant was bound by
that election and not entitled
effectively to seek leave to withdraw
the withdrawal of the action. In
SAMWU & others v Commission
for Conciliation Mediation and Arbitration
(2014) 35
ILJ
2011 (LC), Steenkamp J approved of the approach in
Ncaphayi
and held that the withdrawal of a referral to the CCMA did not
preclude a party from making a fresh referral, nor did it deprive
the
CCMA of jurisdiction to entertain the second referral. In so far as
the application of the doctrine of election was concerned,
the court
held that this was a matter for the arbitrator considering the second
referral to decide.
[6] The third respondent’s
representative referred me to the recent decision by Lekale AJ in
Ellies Electronics (Pty) Ltd v CCMA & others
(JR 484/15, 9
March 2018). In that matter, the applicant sought to reinstate a
review application that had been withdrawn by a
business rescue
practitioner appointed after the filing of the application. The
applicant’s successor sought leave to reinstate
the review
application. Lekale AJ refused the applicant leave to reinstate the
withdrawn application, on the following basis:
[17]
In my considered opinion, it is not possible to reinstate withdrawn
proceedings regard being head, inter-alia, to the need
for finality
in legal disputes and expeditious resolution of labour disputes in
particular. The need to comply with the prescribed
timeframes such as
the six week period limited by section 145 (1) of the LRA for
launching review proceedings also militate strongly,
in my view,
against reinstatement of withdrawn review proceedings as opposed to
reinstitution of the same in the form of reapplication.
[18]
Reinstatement is, in my view, limited to matters removed from or
struck off the court roll in so far as such matters are pending
before the court and only have to be reinstated on the role for
purposes of being heard and finalised….
[20]
In my judgement the option available to the applicant in the
circumstances is reinstitution of review proceedings in the same
way
as the applicant in
Ncaphyi
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 present matter.
[7] In my view, there ought to be no
reason, in principle, why an application that has been withdrawn
ought not to be capable of
reinstatement. First, the Labour Court is
established a court of law and equity, with the inherent powers and
standing, in relation
to matters under its jurisdiction, equal to
that which a division of the High Court has under its jurisdiction.
The court therefore
has the inherent jurisdiction to regulate its own
proceedings and control its own process (see
Windybrow Theatre v
Maphela
(2016) 37
ILJ
2641 (LAC) at paragraph 15.) Section
158 (1) confers specific powers on the court, including the power to
deal with all matters
necessary or incidental to performing its
functions in terms of the LRA or any other law (see s 158(1)(j)).
(See also
Johannesburg Metropolitan Municipality & others v
Independent Municipal and Allied Trade Union & others
(2017)
38
ILJ
2695.) Secondly, there is the compelling analogy with
referrals to the CCMA that are withdrawn, and the right of a party to
make
a fresh referral. The prevailing authority is clearly to
the effect that the withdrawal of a matter is not a bar to the
reinstitution
of proceedings. There are obvious process-related
differences between the withdrawal of a referral to conciliation and
the withdrawal
of an application enrolled for hearing on this court’s
motion roll, but it seems to me that an applicant ought to be able
to
have the dispute heard and determined by way of a re-referral or
re-enrollment, unless there is some imperative that militates
against
that, for example, a claim has been withdrawn in terms of a
settlement agreement and thus extinguished.
[8] I fail to appreciate why the
reinstatement of applications that have been withdrawn should be
limited to those that have been
removed or struck from the roll, or
that any withdrawn application must necessarily recommence with the
delivery of a fresh notice
of motion and founding affidavit. To
impose the latter requirement would simply further delay the
determination of the review application.
The imperative of
expeditious dispute resolution dictates that the application be
re-enrolled and argued.
[9] Principle aside, the particular
circumstances of this case also warrant the reinstatement of the
review application. Until the
judgment by the Constitutional Court in
Myathaza v Johannesburg Metropolitan Bus Services
on 15
December 2016, and on the basis of the LAC’s judgment in the
same matter, it was assumed by most practitioners (including
the
applicant’s attorney) that an arbitration award is a debt that
prescribes after the expiry of three years. It is
not disputed
that the only reason for the withdrawal of the review application was
the applicant’s contention that the application
had become
academic because the award had prescribed. It is also not disputed
that had the applicant been aware on 27 July 2016
that the law was
that the Prescription Act did not apply to the award under review, it
would not have withdrawn the review application.
[11] For the above reasons, in my
view, the applicant ought to be afforded leave to re-enroll the
review application. Mr Kirstein
charitably did not pursue the issue
of costs and I intend therefore to make no order as to costs.
I make the following order:
1.
The applicant is granted leave to reinstate
the application for review.
2.
The registrar is directed to enroll the
review application for hearing on the opposed motion roll, together
with the application
in terms of s 158 (1) (c) filed by the third
respondent under case number J 1773/16.
3.
There is no order as to costs.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. P Kirstein, instructed by Geldenhuys
Attorneys
For
the respondent: Union official