About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 315
|
|
Mathiva and Others v Public Health and Social Development Sectoral Bargaining Council and Others (JR804/2016) [2018] ZALCJHB 315 (3 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No: JR804/2016
In
the matter between:
MATHIVHA
AJ AND 5
OTHERS
Applicant
and
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING
COUNCIL
First
Respondent
MPHAPHULI
JOSEPH
Second
Respondent
DEPARTMENT
OF HEALTH,
LIMPOPO
Third
Respondent
Heard:
26 April 2018
Delivered:
3 October 2018
Summary:
Defects in the review application do not justify its dismissal on
grounds of inordinate delay in its prosecution when the
delay is not
proved.
JUDGMENT
LALLIE,
J
[1]
This is an application to dismiss an application for review which was
instituted by the applicant in April 2016. It is opposed
by the
applicant. The factual background to this matter is largely not in
dispute. The individual applicants (the applicants) are
employed by
the third respondent as nurses. In September 2007 the third
respondent and trade unions representing a number of its
employees
concluded a collective agreement which was incorporated in Resolution
3 of 2007 (the resolution). It was referred to
as the Occupational
Specific Dispensation for Nurses (the OSD). The resolution provided
for the translation of professional nurses
to posts on condition that
they met laid down requirements. In 2015 the applicants referred a
dispute to the first respondent (the
bargaining council) regarding
the application and interpretation of the resolution, having been
aggrieved by what they perceived
to be its incorrect application by
the third respondent. The dispute was arbitrated by the second
respondent (the arbitrator) who,
on 17 March 2016 issued an award in
favour of the third respondent. In April 2016 the applicants filed an
application to have the
award reviewed and set aside. On 5 June 2017
the third respondent launched the application at hand to have the
review application
dismissed owing to the applicants’ delay in
prosecuting the review application.
[2]
The grounds the third respondent sought to rely on are that the
application does not contain the names of the applicants or
their
confirmatory affidavits. The application is also based on a number of
defects in the review application which include the
late filing of
the arbitration record, lack of valid grounds for review, a defective
record, the applicant’s failure to cure
defects in the review
application and the delay in its prosecution which prejudiced the
third respondent.
[3]
In their opposing papers the applicants denied that their review
application is defective. In the event of the presence of defects
in
their application, they denied that those defects justified the
dismissal of their review application.
[4]
The reason for dismissing a review application for delay in its
prosecution is aptly expressed as follows in
MJRM
Transport Services CC v Commission for Conciliation, Mediation and
Arbitration and Others
[1]
:
‘
[18]
A
further misconception that needs to be dispelled in this court is
that whenever the provisions of clause 11.2.3 of the Practice
Manual
are to be invoked, the respondent party can by necessity, implore the
Court to dismiss the main review application. It could
never have
been the intention of the provisions of the Practice Manual to allow
parties to by-pass the other provisions of the
Rules of this Court
where there is an allegation of a failure to timeously prosecute a
review application.’
[5]
The matter at hand is, however, distinguishable from
MJRM
Transport Services
[2]
.
The applicants correctly submitted that not every delay justifies the
dismissal of a review application. By the third respondent’s
own admission, the applicants filed their review application on time
in April 2016. On 5 September 2016, the applicants filed their
notice
in terms of Rule 7A(8)(b) of the Labour Court Rules indicating that
they stood by their founding papers. The period between
April and
September 2016 does not constitute an inordinate delay for purposes
of a review application. Having received the Rule
7A(8)(b) notice,
the third respondent should have dealt with the defects in the review
application in its answering affidavit.
The third respondent elected
not to file an answering affidavit and instead used the defects as a
basis of the application at hand.
I am not convinced that the third
respondent’s approach is correct.
[6]
An application to dismiss a review application is not granted lightly
because of its far reaching effects. It denies the applicant
the
right to challenge an arbitration award on review. The late filing of
the record on its own does not, in the circumstances
of this case
constitute an inordinate delay or justify the dismissal of the review
application. Clause 11.2.3 of the Practice Manual
of the Labour Court
(the Practice Manual), does not close the doors of this Court to
applicants who file arbitration records late.
It deems their review
applications withdrawn and affords them an opportunity to show cause
why they should be afforded an opportunity
to pursue their review
applications.
[7]
The third respondent did not establish that the applicants delayed
inordinately in prosecuting their review application. They
further
did not prove any grounds justifying the dismissal of the applicants’
review application.
[8]
In the premises, the following order is made:
Order
1.
The
application to dismiss the applicant’s review application is
refused.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate Mapila
Instructed
by: Ernest Rammela Attorneys
For
the Third Respondent: Ms Maponya of the State Attorney
[1]
[2017] 1 BLLR 40
(LC) at para 18.
[2]
Supra.