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[2019] ZALCJHB 35
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National Union of Mineworkers obo Morobe and Others v Protea Coin Group (JS 317/14) [2019] ZALCJHB 35 (26 February 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: JS 317/14
In
the matter between:
NATIONAL
UNION OF MINEWORKERS obo
MOROBE
AND 4 OTHERS
Applicants
and
PROTEA
COIN GROUP
Respondent
Heard:
27 November 2018
Delivered:
26 February 2019
JUDGMENT
LALLIE.
J
[1]
This matter was set down for a
pre-trial conference before a Judge on 27 November 2018.
Ms Kungoane
for the respondent objected to the pre-trial conference being held on
the grounds that the statement of case was filed
on 2 June 2014. She
argued that owing to the respondent’s delay, the file was
archived by the Registrar in terms of the Practice
Manual of the
Labour Court
[1]
(the Practice
Manual). Mr Molotsi for the applicants argued that the pre-trial
conference should proceed. He further argued that
clause 6.1 of the
Practice Manual was not designed to trump the Rules of the Labour
Courts. He sought to rely on the Registrar’s
omission to
archive the file and the respondent’s silence on the prejudice
that the delay has caused it. Mr Molotsi added
that the applicants
did not adopt a supine attitude but took steps to pursue their case
and even wrote letters to the respondent’s
attorneys. Ms
Kungoane denied and argued that after the applicant’s letter
which was sent to the respondent’s attorneys
in 2015, the
applicants took no further steps until March 2018. She sought an
order that the respondent be directed to bring an
application to
retrieve the file from the archives.
[2]
Clause 16.1 of the Practice Manual provides as follows:
“
In spite of any
other provision in this manual, the Registrar will archive a file in
the following circumstances:
in the case of referrals
in terms of Rule 6, when a period of six months has elapsed from the
date of delivery of a statement of
case without any steps taken by
the referring party from the date on which the statement of claim was
filed, or the date on which
the last process was filed; and”
Clause 16.3 provides as
follows:
“
Where a file has
been placed in archives, it shall have the same consequences as to
further conduct by any respondent party as to
the matter having been
dismissed”
[3]
The Practice Manual provides that its aim is to promote access to
justice and consistency
and to set guidelines on the standards of
conduct expected from those practising in the Labour Court. The
Practice Manual is not
a substitute for the Rules but facilitates
their application. Its provisions are flexible where flexibility is
required to promote
their purpose.
[4]
The respondent seeks to rely on clause 16.1 and 16.2 of the Practice
Manual which
require the applicants to file an application for the
retrieval of their file from the archives because of their failure to
take
steps to pursue their matter for a period in excess of six
months from the date of delivery of their statement of case. The
applicants
filed their statement of case on 2 June 2014. The
six-months period envisaged in clause 16.1 of the Practice Manual
expired in
December 2014. The file should have been placed in the
archives shorty, thereafter. In terms of clause 16.3 and on the
respondent’s
argument that the file was archived, the
consequences of the archiving of the file on the respondent were that
the matter had been
dismissed. When a matter is dismissed, the
parties may not file papers to pursue it. The respondent filed its
response to the statement
of case on 19 June 2015, six months after
the file should have been achieved. The respondent’s conduct is
inconsistent with
provisions of clause 16.3 of the Practice Manual.
The respondent therefore took a decision not to comply with the
provisions of
clause 16.3 of the Practice Manual. In terms of the
doctrine of peremption the respondent stands and falls by its
decision. It
may not blow hot and cold. It may also not pick parts of
clause 16 of the Practice Manual it seeks to comply with and
disregard
others. The respondent may not be allowed to be
opportunistic and use clause 16 of the Practice Manual other than the
purpose it
was created for. The respondent’s conduct of filing
the response to the statement of case is consistent with the
applicants’
argument that the file was never archived. The
applicant therefore failed to establish grounds to have the applicant
ordered to
apply for the retrieval of the file from the archives.
[5]
In the circumstances the following order is made:
Order
1.
The application to have the applicant apply for the retrieval of the
file from the archives is dismissed.
2.
The parties are directed to file a pre-trial minute within 21 days of
this order.
________________________________
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate M Molotsi
Instructed
by:
Malebaoa Attorneys
For
the Respondent: Ms Kungoane of Lancaster Kungoane Attorneys
[1]
2 April 2013.