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[2018] ZALCPE 23
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Mbema v Commission for Conciliation, Mediation and Arbitration and Others (PR04/2015) [2018] ZALCPE 23 (23 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PR 04/2015
In the matter between:
XOLISWA
MBEMA
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
First
respondent
ANTHONY MARE
N.O
Second
Respondent
SA POST
OFFICE
Third
Respondent
Heard:
30 November 2017
Delivered:
23 August 2018
JUDGMENT:
TLHOTLHALEMAJE, J.
[1]
The applicant, a member of Communications Workers Union (CWU), seeks
an order reinstating her review application, which was
deemed to have
been withdrawn following the late filing of the transcribed record of
arbitration proceedings.
[2]
The common cause facts are that the applicant was dismissed on
18 December 2013. Having referred an alleged unfair
dismissal dispute, the matter came before the second respondent
(Commissioner) for arbitration, and an award in terms of which
her
claim of unfair dismissal was dismissed was issued on
16 October 2014. A review application was launched on
25 January 2015.
On 3 February 2015, the CCMA served a copy
of Notice of Compliance in terms of Rule 7A(3) of the Court’s
Rules on CWU, and
was accordingly advised by the office of the
Registrar of this Court that the record was available.
[3]
CWU conceded that that it failed to comply with the provisions of
clause 11.2.2 of the Practice Manual of this Court in
that it did not
obtain the consent of the third respondent upon having failed to file
the transcribed record within 60 days.
[4]
CWU explanation for the failure to file the transcribed record
timeously is averred to have been attributable to the CCMA having
filed an incomplete record. Urgent correspondence was then sent to
the CCMA on 14 and 25 May 2015, and also on 9 July 2015,
in which the CCMA was reminded of the incomplete record. It was only
on 13 August 2015 that the full record was ultimately
made
available.
[5]
The third respondent in opposing the application averred the
following (as per the answering affidavit of Setimela Jerry Selala);
5.1 The record having been made
available on 1 March 2015, its attorneys of record had on
13 April 2015,
enquired from the Court whether it had
been filed and was informed that it had still not been collected for
transcribing. On 15 April 2015,
correspondence was
addressed to CWU confirming that the record was available and that in
terms of the provisions of the Practice
Manual, the record should
have been collected within 7 days of its receipt by the Court. CWU
was reminded that failure to comply
with the provisions of the
Practice Manual could result in the review application being deemed
to have been withdrawn. No response
was received from CWU.
5.2 On 14 May 2015, CWU
advised the third respondent’s attorneys of record that the
record was incomplete and a
request had been made to the CCMA to
furnish the completed record. Similar correspondence was received on
9 July 2015.
On 13 August 2015, the Registrar of
the Court had sent correspondence to the parties advising that a
further disc of
the proceedings was made available, and CWU was
directed to make copies of the transcription and to provide proof of
service.
5.3 Between 14 May 2015 and
1 March 2017, no further correspondence was received from
CWU in regard to the matter.
It was only on 1 March 2017
that CWU had sent correspondence to the third respondent’s
attorneys of record in which
it was stated that even though the
record was received, it was unhelpful as it was inaudible, and that
the evidence of one of the
witnesses had not been interpreted from
isiXhosa to English.
5.4 It was only on 25 April 2017
that CWU had sent correspondence to the Judge President of the Court
seeking a directive
concerning the poor quality of the record.
[6]
The application to reinstate the review application was launched on
31 May 2017 which was promptly opposed. CWU did
not file a
replying affidavit.
Evaluation:
[7]
Rule 7A(6) of the Rules of this Court provides that applicants in a
review application must furnish the Registrar and each of
the other
parties with a copy of the record or portion of the record.
Applicants are required to make available copies of such
portions of
the record as may be necessary for the purposes of the review. The
service and filing of the record in review applications
is provided
for in clause 11.2 of the Court’s Practice Manual as follows:
“
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.”
[8]
In this case, it is common cause that the transcribed record of
arbitration proceeding was filed way out of the prescribed 60
day
period, if it is accepted that the full record was made available as
from August 2015. The 60 days period expired on 6
November 2015,
and it took CWU until 25 April 2017 to seek a directive from the
Judge President of this Court. It was further common
cause that no
request was made for an extension from the third respondent. Even
then, it is not disputed that such the request
to the Judge President
was by way of an application, which the third respondent had objected
to as being ill-conceived. Upon that
objection, the request was
subsequently abandoned, and this application was launched on 31 May
2017. In essence, there was never
a request made to the Judge
President at any stage.
[9]
Other than correspondence sent to the CCMA by CWU between May and
July 2015, it does not appear that any further steps
were taken
by the Union until April 2017 when the aborted directive was sought
from the Judge President. Despite Mr Mashego’s
averments in the
founding affidavit that attempts were made to reconstruct the record,
and which attempts were frustrated by the
first and second
respondents, it is not indicated in the affidavit as to when those
attempts were made and how these were frustrated
by the first and
second respondents.
[10]
The submissions made on behalf
of the applicant that the necessary steps were taken at all times to
diligently pursue the review
application cannot therefore be correct.
Once a review application is deemed withdrawn by virtue of the
provisions of clause 11.2.3
of the Practice Manual has a binding
effect
[1]
,
there is an onerous burden on the applicant to convince the Court why
that application ought to be reinstated.
[11]
In this case, and as correctly pointed out on behalf of the third
respondent, there was a delay of about 22 months before any
steps
were taken by CWU. That delay is hardly explained in the founding
affidavit, and ordinarily, this should be the end of the
enquiry. For
the sake of completeness however, I will proceed to deal with other
considerations in this application.
[12]
Mr Mashego’s averments in regards to the applicant’s
prospects on the merits of her review application are equally
less
than convincing, as all that is indicated is that there are good
grounds in law to ‘substantiate’ the review application.
Such a bare averment hardly takes this matter any further. On the
other hand, the third respondent’s contentions were that
the
applicant’s prospects were exceedingly poor based on the fact
that she was dismissed after being found guilty of charges
related to
fraud in respect of her wilful and unlawful misrepresentation of
facts when performing a card issue transaction on a
client’s
account without his knowledge or authority. The applicant was also
charged with theft in that she had wilfully and
unlawfully performed
a withdrawal transaction and removed an amount of R3 200.00
belonging to a client without authorisation.
Other than these
allegations, which the Commissioner had found to have been proven,
reference was also made to the fact that the
applicant had in her
testimony, conceded that she had indeed made the transaction.
[13]
Significantly, there was no replying affidavit filed by either Mr
Mashego or the applicant. Equally so, the applicant did not
even
bother to file a confirmatory affidavit to Mr Mashego’s
founding affidavit. Nowhere in the founding affidavit was it
indicated to the court that the review application ought to be
incorporated into this application, and nor was any reference made
to
the review application in support of any averments. In these
circumstances, I fail to appreciate how this Court can come to
any
conclusion that the applicant has established some prospects of
success, even on a
prima facie
basis.
[14]
It was further submitted on behalf of the applicant that she would
suffer substantial prejudice should the review application
not be
reinstated. However, it is my view that the alleged prejudice to the
applicant is of her own or the Union’s making.
In my view, in
circumstances where the applicant or CWU had not acted diligently in
the prosecution of the review application,
and/or where no
explanation was proffered for the failure to act with any haste,
and/or where the applicant has not demonstrated
any prospects of
success on the merits of the review application, it is more the
third respondent that stands to suffer substantial
prejudice if the
review application was to be reinstated.
[15]
In conclusion, no case has been made out as to why the review
application deemed to have been withdrawn as a consequence of
the
applicant’s lack of diligence should be reinstated. I have
further had regard to the requirements of law and fairness
and
conclude that a cost order is not warranted in this case.
[16]
In the circumstances, the following order is deemed appropriate;
Order:
1. The application to reinstate the
review application deemed to have been withdrawn by virtue of the
provisions of Clause 11.2.3
of this Court’s Practice Manual is
dismissed.
2. There is no order as to costs
_____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Mr. B Mashego of Communications Workers Union
For
the Third Respondent: F Le Roux
Instructed
by: Goldberg & De Villiers Incorporated
[1]
Samuels v Old Mutual Bank
[2017] 7 BLLR 681
(LAC); (2017) 38 ILJ 1790 (LAC) at paras
14-15, where it was held that;
“
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.”