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[2019] ZALCJHB 8
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Setlaba and Another v Ngcosane NO and Others (JR1501/15) [2019] ZALCJHB 8 (17 January 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
1501/15
In
the matter between:
KETLHWOECOENG
MILDRED
SETLABA 1
st
Applicant
THWALA
CAROLINA
LETANTA 2
nd
Applicant
and
mpe
ngcosane
n.o
1
st
Respondent
GPSSBC 2
nd
Respondent
DEPARTMENT
OF HUMAN SETTLEMENTS:
FREE
STATE 3
rd
Respondent
Heard
:
13 JULY 2018
Delivered
:
17 January 2019
Summary:
Application for review of arbitration award – section
145(1)(a) Labour Relations Act, 66 of 1995 (as amended).
JUDGMENT
RAPHULU,
AJ
Introduction
[1]
The applicants were found guilty of misconduct and were subsequently
dismissed. They appealed their dismissal, but their appeal
was
unsuccessful. They then referred an unfair dismissal dispute to the
second respondent where the first respondent upheld their
dismissal.
In these proceedings, the applicants seek to have the arbitration
award of the first respondent dated 13 May 2015, reviewed
and set
aside.
[2]
The third respondent opposes the review application. It claims that
the applicants were late in filing their application to
review the
arbitration award, and did not made an application for condonation
for the late filing of the notice of motion, which
was filed on 01
September 2015. The third respondent also claims that the applicants
failed to comply with this court’s Practice
Manual and the
application was therefore archived and there is no application to
de-archive and/or re-instate the review application.
Accordingly, the
third respondent seeks to have the review application dismissed with
costs.
Background
[3]
The applicants were in the employ of the
third respondent and were dismissed after they were found guilty of
misconduct, namely:
3.1
They engaged in unauthorised and/or
irregular negotiations with contractors to facilitate irregular and
undue payments to the contractors;
3.2
They falsified documentation to the Finance
Division of the Department to facilitate irregular and undue payments
to the contractors;
and
3.3
They solicited and/or required and/or
received undue/irregular gratification in the form of cash and/or
otherwise from the contractors
in exchange for the facilitation of
the falsified and undue claim payments as mentioned above.
[4]
The applicants appealed their dismissals,
but the appeal was dismissed by the third respondent. Following
which, the applicants
referred an unfair dismissal dispute to the
second respondent. Conciliation was conducted on 07 July 2013 and
arbitration proceedings
were concluded on 01 April 2015.
[5]
The arbitration was conducted by the first
respondent, and his award was given on 13 May 2015, which stated:
“
[63]
The applicants’ dismissal is upheld.
[64]
The application is dismissed.
[65]
There is no order as to costs.”
[6]
The second respondent served the award on
the third respondent on 15 June 2015. The applicants state that they
were only made aware
of the award of 16 July 2015. The applicants
seek to review and set aside this arbitration award.
Condonation
[7]
If
the version of the applicants are correct and they did in fact only
become aware of the arbitration award on 16 July 2015, their
application to review the award would have been due on or before 28
August 2015. The applicants filed their review application
on 01
September 2015, outside of the 6 week period prescribed under the
Labour Relations Act
[1]
(LRA). The applicants did not seek condonation for their late
application.
[8]
If the version of the applicants are
incorrect and they were sent the arbitration award on the same day as
the third respondent,
on 15 June 2015, their application to review
the award would have been due on or before 27 July 2015, even further
outside of the
6 week period as by the LRA.
[9]
Clause 11.2.2 of the Practice Manual of the
Labour Court of South Africa reads as follows:
For
the purposes of
Rule 7A(6)
[of the Labour Court Rules], 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.
[10]
It is not clear when the applicants were
advised by the registrar in terms of Rule 7A (6) of the Labour Court
Rules but it is clear
that the applicants took longer than 60 days of
being advised by the registrar that the record has been received, to
file the record.
[11]
The second respondent filed its Notice of
Compliance in terms of Rule 7A (2)(b) on 15 October 2015. It appears
from the papers that
the second respondent did not file the full
record, and there was a reconstruction process held on 8 and 9
November 2016. On 30
March 2017 the applicants filed a Rule 7A (6)
notice, furnishing the registrar and the respondents with the
“additional record”.
[12]
According to clause 11.2.3 of the Practice
Manual, should an applicant fail to comply with clause 11.2.2
(supra), the matter will
be deemed to have been withdrawn by the
applicant, unless the extension of time has been agreed upon by
consent between the parties
or is granted by the Judge President of
this Court.
[13]
It is clear that a period of more than 60
days passed between the applicant receiving notice from the registrar
and the applicant
filing the record. At the hearing of this matter,
the applicants did not deny this, and said that this Court would have
been aware
of their ongoing interest in this matter by virtue of the
fact that they were taking steps, such as pursuing the full record.
The
difficulty is that there is neither an agreement between the
parties to extend the time periods, nor is there an extension of time
granted to the applicants by the Judge President of this Court, as
required by clause 11.2.3.
[14]
Further, clause 11.2.7 reads as follows:
A
review application is by its nature an urgent application. An
applicant in a review application is therefore required to ensure
that all the necessary papers in the application are filed within 12
months of the date of the launch of the application (excluding
Heads
of Arguments) and the registrar is informed in writing that the
application is ready for allocation for hearing. Where this
time
limit is not complied with, the application will be archived and be
regarded as lapsed unless good cause is shown why the
application
should not to be archived or be removed from the archive.
[15]
The applicants commenced the review
application on 01 September 2015. As it is nearly 3 years later, and
unless good cause for the
delay can be shown by the applicants, the
application will be deemed to have lapsed.
[16]
The applicants were legally represented at
various time periods, and on the hearing of this matter they declined
the assistance
of the pro bono legal services provided by this Court.
[17]
The applicants have not applied for
condonation providing an explanation or good cause to explain the
delay and give the necessary
detail to this Court of what transpired
during the various time periods in the past 3 years. Without such an
application, this
Court has not been given the benefit of being able
to apply its mind to the delay.
[18]
It is on these premises, in accordance with
clauses 11.2.3 and 11.2.7 of the Practice Manual, that I must strike
this application
from the roll
[19]
In the circumstances the following order is
made:
Order
1.
The review application is struck from the
roll.
2. No order is made as to costs.
_______________________
L. Raphulu
Acting
Judge of the Labour Court of South Africa
.
Appearances:
For the Applicants: Self-Representing
For
the Respondent: Advocate P.H Kirstein
Instructed
by: Johan Gouws Attorneys
[1]
66 of 1995, as amended.