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[2019] ZALCJHB 372
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SAMWU obo Shongwe and Others v Moloi NO and Others (JR483/14) [2019] ZALCJHB 372 (24 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Of
interest to other judges
Case
no: JR 483/14
In
the matter between:
SAMWU
OBO K SHONGWE & 45 OTHERS Applicant
And
COMMISSIONER
LUCKY MOLOI (
N.O
)
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATIONS
AND ARBITRATION
Second
Respondent
THE
CITY OF JOHANNESBURG Third
Respondent
Heard:
06 June 2018
Delivered:
24 May 2019
Summary:
(Review application – Rule 11 – Despite good merits
extraordinarily dilatory prosecution
of claim – non-compliance
with practice manual – condonation refused – review
application dismissed)
JUDGMENT
LAGRANGE.
J
Introduction
[1]
Apart from applications for condonation the two substantive
applications before the court when this matter was heard was a review
application of a jurisdictional ruling filed on 26 March 2014 and an
application to dismiss the review application.
[2]
The condonation applications concern the late filing of the
record, which was a few days late, and the supplementary affidavit,
which was at least 38 days late and, for the reasons which follow,
more probably more than a year late.
Background
[3]
This matter has a long history. The underlying dispute
concerned the employment of various members of the applicant union
(‘SAMWU’)
in the Johannesburg Metro Police Department. A
strike over terms and conditions of employment resulted in an
agreement concluded
on 27 June 2008. The pertinent provisions of that
agreement read:
“
Whereas
the City of Johannesburg Metropolitan Municipality is an employer,
and whereas the members of SAMWU raised a number of concerns
on
behalf of their members employed at the Johannesburg Metro Police
Department (JMPD), in order to resolve the current impasse,
parties
record their agreement herein.
1. In relation to
the payment of minimum salaries to Metro Police Officers (MPOs), the
parties agree that;
1.1.1
Newly appointed Trainees will attend a course at the Academy for the
period of 6 months in order to conclude
theoretical aspects and will
receive a stipend of R2 000.00 per month.
1.1.2
Upon completion of the 6 months theoretical training, a Trainee MPO
will be placed as a trainee for a further
period of 6 months, during
which period he/she will be paid an amount of R4 200.00 per month.
1.1.3
Upon a successful completion of both theoretical and practical
training, the MPO will be appointed on the
permanent structure of
JMPD and be paid the applicable minimum salary.
1.2 In principle, the
employer commits that none of its employees will be paid below the
minimum salary of the grade applicable
to the position.
1.3 In relation to
employees who have been in the service of the employer for long,
parties agree that these will be treated as
follows:
1.3.1
Employees who have been in the service of the employer at JMPD for a
period of six years to twelve years,
shall be placed on the median
range of the salary scale;
1.3.2
Employees who have been in the service of the employer at JMPD for
more than twelve years, shall be paid
at the maximum salary of the
salary scale.
2. The parties
agree that the provisions of clauses 1.3.1 and 1.3.2 of this
agreement
shall apply once off only to permanent members of staff
employed by JMPD, and shall not serve as a precedent nor can it be
used
against any other parties in any future disputes
,
engagements and or negotiations
.
3. The parties
agree that this agreement shall supersede any other agreements
relating to the issues contained therein.
(emphasis
added)
[4]
When
it came to implementing the terms of the agreement a number of
disputes arose as to whom the agreement applied to. The earlier
proceedings are summarized in a labour court judgment by
Tlhotlhalemaje J, dealing with one of those disputes, which was
handed
down on 25 February 2016.
[1]
That application concerned a claim for payment allegedly due to 25
individual applicants arising from the collective agreement.
The
court found that the claim was essentially a duplication of the case
in which an arbitration ruling was issued. That ruling
is the subject
matter of this application. The court upheld the municipality’s
pleas of
lis
alibi pendens
and
res
judicata
and
consequently dismissed the claim.
[5]
At the time Tlhotlhalemaje J’s judgment was handed down,
the application to review the arbitration ruling had been launched
but not yet enrolled. Leave to appeal against the judgment was
refused by the learned judge on 11 August 2016.
[6]
For the sake of contextualizing this application, the court’s
summary of the history of the matter as set out in the judgment
is
repeated below:
“
[4] In the light
of the dispute pertaining to whether the individual applicants were
entitled to payment or not in terms of the
agreement, they had then
on their own referred a dispute to the CCMA under case number
GAJB18002-13 on 17 July 2013. In that referral,
they had cited SAMWU
as the second respondent. The dispute was referred in terms of
section 24 (2) of the Labour Relations Act.
[5] Following the failure
of conciliation proceedings on 2 August 2013, the matter came before
an arbitrator on 1 October 2013.
At the arbitration proceedings, the
individual applicants sought to join SAMWU as the co-applicant. The
respondent had opposed
the application for a joinder, and further
raised a preliminary point to the effect that the CCMA lacked
jurisdiction to determine
the dispute on the basis that the
applicants lacked
locus standi
to refer it. The preliminary
issue raised was premised on the contention that the individual
applicants on their own were not party
to the collective agreement
which was the subject matter of the dispute, and could thus not refer
that dispute.
[6] In the award issued
on 11 October 2013, Commissioner Duduzile Madubanya had found that
the individual applicants, even though
bound by the terms of the
agreement, were however not parties to it in their individual
capacities for the purposes of a referral.
The Commissioner had
accordingly refused to join SAMWU as a co-applicant in the matter and
further found that the CCMA lacked jurisdiction
to determine the
dispute before it on account of lack of
locus standi
.
[7] SAMWU then referred
another dispute under case number GAJB27117-13 pertaining to the
interpretation or application of a collective
agreement to the CCMA
on behalf of the individual applicants. The matter came before
another arbitrator on 4 February 2014. At
those proceedings, the
respondent raised yet another preliminary point, contending that the
individual applicants’ claim
had prescribed. In terms of a
ruling issued on 6 February 2014, Commissioner Lucky Moloi had found
that the individual applicants’
claim had prescribed, and that
the CCMA lacked jurisdiction to determine the dispute.
[8] On 26 March 2014,
SAMWU on behalf of the individual applicants filed an application to
review and set aside the ruling issued
by Commissioner Moloi. The
respondent opposed that application and has also since filed an
application in terms of Rule 11 of the
Rules of this court, to have
that review application dismissed on account of lack of diligent
prosecution. These two matters are
pending before this court under
case number JR483-14, which curiously is also the same case number
under which the statement of
claim was filed.
[7]
This case concerns the review application filed on 26 March
2014 and the subsequent application to dismiss it filed on 28 July
2014.
The matters were originally enrolled for a pre-enrolment
hearing on 11 August 2016. At that hearing both applications were set
down for a hearing on 2 February 2017. However, on 2 February 2017
the applications were postponed
sine die
with the applicants
in the review application (‘SAMWU’) being ordered to pay
the costs of the postponement. The applications
were only re-enrolled
for hearing on 6 June 2018.
The arbitrator’s
ruling
[8]
The dispute which had been referred to conciliation by the
union was identified as an ‘Interpretation/Application of
Collective
Agreement’ in the tick box identification of the
‘Nature of the Dispute’ in paragraph 3 of the 7.11
referral
form. In summarizing the facts of the dispute referred in
the same paragraph, the union described those in the following terms:
“
Failure by the
employer to
interpret
the collective agreement of 28 June 2008
in a manner that covers
the applicants.”
(emphasis
added)
[9]
In the referral form, the dispute was identified as having
arisen on 15 May 2013. In the form referring the dispute to
arbitration
the description of the issues in dispute repeated the
formulation contained in the 7.11 form, which is cited above.
[10]
At the arbitration hearing, the municipality raised a special
plea of prescription. The basis of this plea was that the settlement
agreement was a ‘once-off’ arrangement and any claims
arising from it had expired in June 2011. The jurisdictional
question
concerned whether or not the claims of a certain group of employees
based on the settlement agreement had prescribed.
According to the
arbitrator, the municipality contended that the period for the
applicability of the agreement or its enforcement
had prescribed.
Nevertheless, for the sake of the proceedings, the municipality
conceded that the agreement was applicable to the
group of employees
mentioned in the referral.
[11]
Clause 6 of the agreement stated that the agreement would take
effect with effect from 1 July 2008.
[12]
The union’s representative had contended that a dispute
of interpretation or application could not prescribe.
[13]
The arbitrator found that the issue of whom the agreement
applied to was no longer in dispute and had become moot because of
the
municipality’s concession. The crux of the arbitrator’s
reasoning is found in the following paragraphs of his ruling:
6.6
Let us look at the purpose of referring a dispute about
interpretation
or application of the collective agreement. The
intention may be of understanding the meaning of the words contained
in the agreement
or to seek compliance with the terms of the
agreement. The applicants’ representative was clear in that the
applicant sought
to understand as to who falls within the agreement.
The respondent’s representative argued that even if the
applicants fell
within the meaning of “employees employed by
JMPD” enforcement cannot be entertained as the agreement had
prescribed.
Again, clause 6 of the agreement must be borne in mind.
This clause brings in a limitation in terms of duration. It is
binding
on the parties and clarifies the application duration of the
agreement.
6.7
The respondent’s representative had conceded to the agreement
being applicable to employees, but submitted that the application or
enforcement period had prescribed. The argument supports that
of the
applicants’ representative, thus declaring the argument as to
who is the employee in terms of the agreement, a moot
point.
6.8
Therefore, the argument of interpretation is declared moot by the
respondent’s representative’s concession. The only issue
left is that of the application. As indicated in paragraph
6.6,
application deals with compliance with the agreement, and in a way
the enforcement of the agreement taking into consideration
section
142A read with section 158 [1] [c] of the Labour Relations Act.
6.9
The desired outcome was that of interpretation of the agreement.
The
respondent’s representatives’ argument on “
who
is an employee of JMPD
?” has been answered by the
concession made by the respondent’s representative.
6.10
On the issue of application, one cannot rule the same as section 15
of the
Prescription Act requires judicial interruption of
prescription. It must also be mentioned that as per the respondent’s
submission,
this matter was initially referred to the South African
Local Government Bargaining Council on 21 November 2012. By then, the
issue
of prescription was not raised by the same respondent’s
representative. It was successfully argued that only the CCMA has
exclusive jurisdiction over this matter.
6.11
I specifically mentioned the date of 21 November 2012 because it may
count
as a date of judicial proceedings which may interrupt the
running of prescription. Clause 6 of the agreement makes mention of
application
as 1 July 2008, thus outside the three years prescribed
within which to launch the judicial proceedings. …
7 RULING
7.1
I, therefore, rule that even if the applicants were employed by
JMPD
as conceded by Mr Sandile July, the respondent’s
representative, the claim has prescribed. CCMA lacks jurisdiction to
deal with application of the agreement as per section 15 of the
Prescription Act.
7.2
The application is dismissed.”
(
sic
).
[14]
The arbitrator also found that the union was aware or ought to
have been aware of the claim of the individual applicants but had
failed to institute it within the period prescribed by the
Prescription Act.
Condonation
applications
[15]
There are two condonation applications which require
consideration. The first is for the late filing of the review
application itself.
The second is for the late filing of the Rule
7A(8)(b) notice. The dismissal application brought by the
municipality is inextricably
connected to the second condonation
application and the failure to file a record timeously.
Grounds of review
[16]
The applicants review of the ruling may be summarised thus:
16.1
The arbitrator failed to determine the interpretation dispute, when
he accepted the concession by the employer
that the individual
applicants were employees of JMPD at the time the agreement was
concluded. Their contention is that the concession
necessarily ought
to have resulted in a finding that the settlement agreement applied
to the individual applicants.
16.2
Further, in terms of the dispute actually referred to arbitration, he
was not required to determine if the
applicants had a claim pursuant
to the correct interpretation of the agreement. The applicants
contend that the issue of enforcing
the agreement was an entirely
separate matter which was not before the Commissioner. To express it
differently, in effect they
claim he misconceived the issue he had to
decide.
16.3
Because the jurisdictional question was an
in limine
issue
before the Commissioner it was inappropriate and misconceived for him
to have expected evidence of steps taken to interrupt
prescription at
that point in the proceedings.
16.4
The fact that clause 6 of the agreement stated that “its
application will be with effect from 1 July
2008”, did not mean
as the Commissioner appeared to think, that this was the payment
date.
16.5
The arbitrator erroneously failed to appreciate that the agreement
did not prescribe a cut-off for claims.
[17]
For its part, the respondent raises the following substantive
defences to the review application:
17.1
It disputes that the dispute referral merely sought a declaration on
the meaning of the
agreement. It contends that disputes relating to
the application of the collective agreement are tantamount to a
request for enforcement.
17.2
In any event, there would be no point in determining the dispute if
the CCMA had no jurisdiction
because of the prescription ruling.
17.3
A complete cause of action for the recovery of the debt in the sense
of the facts necessary
to prove the claim existed long before the
referral to the CCMA and had existed for a period of three years
prior to 28 June 2011.
[18]
The municipality correctly points out that the review of a
jurisdictional ruling is different to an ordinary review in that the
question for the court to determine is whether the arbitrator was
right or wrong, not whether the decision was reasonably justifiable.
[19]
Before the grounds of review can be addressed, the condonation
applications and dismissal application must be dealt with.
Condonation
applications and Rule 11 application
The late launching
of the review
[20]
The ruling of the Commissioner was issued on 6 February 2014,
but was only received by the applicants on 10 February 2014. The
review
application was launched on 26 March 2014. Accordingly, the
review application was only two days late. The delay in relation to
this stage of the proceedings was minimal and the municipality did
not complain of any prejudice suffered as a result, nor did
they
oppose the application.
[21]
I am satisfied this delay was trivial and no serious prejudice
could have been caused to the respondent. Irrespective of the merits
of the dispute, the late filing of the review ought to be condoned.
The late filing of
the record, supplementary affidavit and the dismissal application
[22]
Whether or not the delays in the subsequent steps of
prosecuting the review should be condoned is the subject matter of
the Rule
7A(8)(b) condonation application and the Rule 11 dismissal
application.
[23]
The
material chronology of the review application after the initial
launch thereof is as follows:
23.1 25
March 2014: The review application is launched.
23.2 30
March 2014: The municipality serves a notice of opposition to the
review application.
23.3 2
April 2014: CCMA delivered the record to the registrar.
23.4 17
April 2014: The applicants claim, though this is uncorroborated by
their erstwhile attorney, Mr Mngomezulu
of CHSM Incorporated
(‘CHSM’), that he consulted with counsel on this day
about the course of action the applicants
should pursue, after
obtaining an opinion of counsel in which he proposed that the
applicants should simply sue for payment of
what they claimed to be
due to them under the settlement agreement.
23.5 30
May 2014: The applicants’ attorneys advised the municipality’s
attorneys that they had uplifted
the record but the compact disc of
the proceedings was blank. The letter recorded that the CCMA had been
requested to provide another
CD and asked for an indulgence pending
this being done and advising that they would consider an application
to compel the provision
of the record if the CCMA was not
forthcoming.
23.6 17
June 2014: The municipality’s attorneys responded that they do
not see the need for a transcript
of the proceedings as the issues
raised in the review were legal in nature. Accordingly, they
requested the applicants to expedite
the review.
23.7 On
or about 27 June 2014: the applicants instruct new attorneys to take
over the matter.
23.8 30
June 2014: the applicants’ new attorneys request CHSM to hand
over the documents by 1 July 2014.
23.9 01
July 2014: CHSM demands payment of final accounts before
relinquishing files.
23.10 15 July 2014:
Applicants’ new attorneys, Maenetja Attorneys, obtain files
from CHSM.
23.11 18 July 2014:
Maenetja attorneys consult with counsel and resolve to institute
action for payment of salaries allegedly
outstanding as a result of
the settlement agreement.
23.12 24 July 2014:
The municipality launches the Rule 11 application, noting that a
period of 81 days had passed since the
review application was
launched. The dismissal application was served on CHSM as the
municipality’s attorneys had not been
advised that they were no
longer attorneys of record for the applicants. Later the same day,
CHSM notified the municipality’s
attorneys that CHSM were no
longer the attorneys of record for the applicants.
23.13 25 July 2014:
A letter of demand is issued to the municipality for payment of
salaries, amounting to approximately R
22 million.
23.14 31 July 2014:
The candidate attorney at Maenetja Attorneys, who was assigned to
handle the matter under the supervision
of a senior partner of the
firm, leaves the firm.
23.15 5 August
2014: The municipality rejects the applicant’s claim for
payment of salaries on the basis that the arbitration
award handed
down renders the subject matter of the demand
res judicata
.
23.16 6 August
2014: Applicants claim to be first made aware of the Rule 11
application served on CHSM.
23.17 15 August
2014: The applicants filed an answering affidavit in the Rule 11
application.
23.18 22 August
2014: the municipality files a replying affidavit in the Rule 11
application.
23.19 The
applicants claim that the mechanical record of the CCMA proceeding
was received during August and forwarded to transcription
services.
23.20 30 September
2014: The transcription of the record was completed.
23.21 February
2015: The applicants claim to have received the transcribed record
during this month.
23.22 13 February
2015: The applicants serve a Rule 7A(6) notice on the municipality.
23.23 16 February
2015: The applicants file the Rule 7A(6) notice with registrar.
23.24 25 February
2016: Tlhotlhalemaje J dismisses the application for payment of
unpaid wages.
23.25 3 March 2016:
The applicants file a Rule 7A(8)(b) notice, confirming that they
stand by their original notice of motion.
23.26 14 March
2016: The municipality objects to the late filing of Rule 7A(8)(b)
notice.
23.27 25 July 2016:
The applicants apply for condonation for late filing of Rule 7A(8)(b)
notice.
23.28 August 2016:
The applicants withdraw their mandate from Maenetja Attorneys and
appoint Mkize Attorneys as their new
attorneys of record.
23.29 10 January
2017: The applicants apply for an extension of time to file the
record.
[24]
In opposing the Rule 11 application, the applicants contended
that it was crucial for the purposes of the review that the oral
submissions
made by the legal representatives at the hearing namely;
about the nature of the dispute to be adjudicated, what was before
the
arbitrator, submissions and concessions made, and the like, which
would be reflected in the transcript of the proceedings, ought
to be
before the court. In this regard, what is bizarre is that the only
transcript which was ultimately filed was of an earlier
proceeding
before another commissioner and not the transcript of the argument in
the hearing which led to the ruling under review
in this application.
The periods of delay
[25]
Assuming a transcript was necessary, which does not seem to be
the case, and leaving aside the fact that the correct transcript was
not even filed, the critical periods of delay which require
explanation are:
25.1
the delay between receiving the original deficient record at the end
of May 2014 and filing the record in
February 2015, a period of over
eight months, or more than 10 months after launching the review
proceedings.
25.2
The delay in finalising the review application by complying with Rule
7A(8) only in April 2015 or March 2016,
after the record was filed in
February 2015. The applicants claim that:
24.2.1
The Rule 7A(8)(b) notice was served and filed by 14 April 2015, which
was 38 days late.
24.2.2
However, seeing that there was no response to this notice by the
municipality, and because the ‘first
notice could not be
located’, a ‘second notice’ was served and filed on
3 March 2016.
[26]
In terms of clause 11.2.2 of the Labour Court Practice Manual,
the transcript ought to have been filed within 60 days of the
applicant
being advised by the registrar that the record has been
received. On the applicants’ own version this came to the
attention
of Mngomezulu attorneys at least by 30 May 2014, though it
was probably earlier considering that the applicant’s attorney
supposedly consulted with counsel on 17 April. However,
assuming 30 May was the date the applicants were advised by the
registrar of the receipt of the record, the record ought to have been
filed by 30 July 2014. At best for the applicants it was filed
in
February 2015, about seven months beyond the 60-day deadline.
[27]
In terms of clause 11.2.3 of the manual a review application
is deemed withdrawn in the absence of consent by the opposing party
or a ruling by a judge affording the applicant an extension of time
to file the record. In the circumstances, the review application
might be disposed of on this basis alone.
[28]
However, on 10 January 2017, shortly before the applications
were enrolled to be heard on 2 February 2017 by Whitcher J, the
applicants
belatedly filed an application for extension of the time
period for filing the record. This was nearly two and a half years
after
the expiry of the 60 day period. The application was not
formally opposed but clearly falls to be considered as a factor in
determining
the dismissal application. In any event, the delay
in filing the record was extreme.
[29]
If the Rule 7A(8)(b) notice was served in mid-April 2015, it
was served four times later than it should have been which is a
considerable
delay. However, that also glosses over the absence of
any explanation why the transcript was only obtained by Maenetja
attorneys
in mid-February 2015 if it had been finalised by the end of
September 2014. On the other hand, if the Rule 7A(8)(b) notice was
only filed in March 2016, it was extremely late. In this regard there
was no evidence of service of that notice on the municipality.
[30]
To compound matters, whereas the applicants received an
objection to the late filing of the notice in mid-March 2016, they
took
over four months to file the condonation application, for which
no explanation was tendered.
Explanations for the
delays.
[31]
The applicants contend they pursued the review diligently but
were hampered by the failings of their former attorneys of record and
subsequently by the delay in obtaining a transcript of the
proceedings. They also contend that the dismissal application was
merely
a response to their letter of demand for payment of the
claimed outstanding wages, as it was launched one day after receiving
the
letter of demand.
[32]
In the affidavit filed in support of the condonation
application for the late filing of the Rule 7A(8)(b) notice, the
applicants
claimed:
32.1
they could not file the said notice within 10 days of filing the
record, because they had still not received
“the entire file”
from CHSM attorneys, ostensibly because the former attorneys would
not release the file owing to
outstanding payments;
32.2
the complete files were only received ‘during the month of
April 2015’, and
32.3
the application to compel payment of the unpaid wages ‘contributed
greatly’ to delaying the finalisation
of the review
application.
[33]
Leaving aside the fact that the request for an extension of
time to file the record was only filed nearly two years after the
record
was filed, Maenetja Attorneys were already apprised of the
review and had received the files from CHSM attorneys by mid July
2014.
They claim, somewhat vaguely, to have received the complete
record in August, and only transcribed the record by the end of
September
2014.
[34]
There is still a further unexplained delay from September 2014
until February 2015, which they assert is when they received the
transcript. Although Maenetja Attorneys were now acting in the review
proceedings for the applicants, their consultations with counsel
did
not appear to deal with the review proceedings at all, but with the
new line of attack they were devising in the form of launching
the
application for unpaid wages which came before Tlhotlhalemaje J. The
inescapable impression gained is that it was this fresh
enforcement
application which was engaging the efforts of the applicants’
attorneys and counsel. Indeed, the applicants see
no difficulty in
trying to justify the delay in prosecuting the review proceedings
because of the time being devoted to launching
the new application.
[35]
Assuming that the Rule 7A(8)(b) notice had been served in
April 2015, the applicants sought to attribute the 38 days’
delay
to Maenetja Attorneys not yet having obtained complete files
from CHSM attorneys. However, when Maenetja Attorneys mentioned
receiving
the files on 15 July 2014 from CHSM they made no mention
that the files received from CHSM on 15 July 2014 were still
incomplete.
The only complaint they made at the time was about the
state of the two lever arch files received from CHSM Attorneys, not
about
missing material. Further, the applicants do not take the court
into their confidence about which portions of the files were
supposedly
missing in February 2015 that made it impossible for them
to file the Rule 7A(8)(b) notice at that stage. Such a perfunctory
rationalisation
is not an acceptable explanation for the delay. The
delay on account of the supposedly missing material is all the more
inexplicable
bearing in mind that the applicants ultimately made no
additions or changes to their original founding papers.
[36]
There is also the curious service of a ‘second’
Rule 7A(8)(b) notice shortly after Tlhotlhalemaje J’s dismissal
of the unpaid wages application. This can only be plausibly explained
by the applicants developing a renewed interest in the review
application. But a party in review proceedings cannot simply leave an
application in a ‘pending’ state and then pursue
it when
the time suits it. The applicants aver that the ‘second’
notice was served on the municipality because no notice
of opposition
or answering affidavit was forthcoming from it, but that explanation
is insufficient to be credible. To accept this
version, the
applicants would have the court believe that their attorneys
patiently waited nearly eleven months, knowing they were
entitled to
have received opposing papers within 10 days of filing the Rule
7A(8)(b) notice on 14 April 2015. The far more probable
explanation
is that the applicants simply did not pursue the review application
pending the outcome of the enforcement application
in the Labour
Court, and it was only when their hopes were dashed by the outcome of
that application that they took steps to revive
the review
application.
[37]
All in all, the condonation applications are lacking in any
meaningful detail to explain the lengthy delays. The attitude of the
applicants towards their own dilatoriness borders on the indifferent
and presumptuous. The fact that the individual applicants
are lay
persons does not explain why the union did not take a more active
interest in monitoring the progress of the review application
particularly if it knew the applicants had been ill served by the
attorneys initially appointed in the matter. Ordinarily, I would
be
inclined to dismiss the review application with costs, in view of the
extraordinarily lackadaisical approach to the delay and
the length of
time taken to pursue the review application.
[38]
However, the effects of leaving a manifestly wrong ruling
intact, in my view, outweigh these considerations.
Merits of the review
[39]
Essentially, the applicants argue that the arbitrator
incorrectly collapsed the distinction between the interpretation of
the settlement
agreement and its enforcement.
[40]
S 24(2) of the LRA provides:
(2)
If there is a dispute about the interpretation or application of a
collective agreement, any party
to the dispute may refer the dispute
in writing to the Commission if —
(a) the
collective agreement does not provide for a procedure
as
required by subsection (1);
(b) the
procedure provided for in the collective agreement is
not
operative; or
(c)
any party to the collective agreement has frustrated the
resolution
of the dispute in terms of the collective agreement.
[41]
In
Health
& Other Services Personnel Trade Union of SA on behalf of Tshambi
v Department of Health, Kwazulu-Natal
[2]
,
the LAC stated the minimum distinguishing characteristics of
interpretation and application disputes respectively:
Logically,
a dispute requires, at minimum, a difference of opinion about a
question. A dispute about the interpretation of a collective
agreement requires, at minimum, a difference of opinion about what a
provision of the agreement means. A dispute about the application
of
a collective agreement requires, at minimum, a difference of opinion
about whether it can be invoked.
[3]
[42]
Although the applicants cast the dispute as an interpretation
dispute, interpreting who is covered by the agreement obviously has
implications for invoking it. The applicants sought a determination
that the settlement agreement applied to the individual applicants
in
question. They carefully cast the dispute in the narrowest terms. The
municipality conceded that the agreement did cover the
individuals in
question, albeit for the purpose of hoping to get rid of the dispute
by relying on prescription. In terms of the
narrow dispute that was
before the arbitrator, the concession should have resolved the
dispute. Indeed, the arbitrator partly recognised
this when he
correctly noted that the municipality’s concession rendered the
interpretation question moot.
[43]
However, because the concession was made in the context of
simultaneously raising the prescription plea the arbitrator was
enticed
to entertain the prescription issue. By following the
municipality’s lead, the arbitrator misdirected his enquiry by
believing
he was then required to deal with the issue of application.
Though the practical implications of the applicants succeeding with
the review are doubtful because the prescription issue would still
arise either in relation to the life of the agreement itself
or the
periods for which any remuneration might have been claimed by the
individual applicants, the applicants ought to have succeeded
in the
arbitration.
Conclusion
[44]
Although the merits of the review appear strong albeit on the
narrow issue to be decided, I am of the view that the dilatory
prosecution
of the review cannot be condoned. Not only was the review
application deemed withdrawn in terms of clause 11.2.3 of the
Practice
Manual it also ought to have been archived and deemed lapsed
because the applicants only complied with Rule 7A(8) nearly twelve
months after the one year period for finalising the review papers in
clause 11.2.7 of the Practice Manual.
[45]
In any event, even if the practice manual did not exist, the
applicants’ prosecution of the review is characterised by
appalling
delays and poor explanations therefor. This is not a
case where the merits of their case can outweigh the indifferent
attitude
with which they approached the matter.
[46]
The applicants’ conduct of the review also has a bearing
on whether costs should be awarded. Notwithstanding an ongoing
relationship,
the manner in which the applicants conducted the
litigation resulted in the respondents incurring needless legal
expenses.
Order:
1.
The condonation application for the late filing of the review
application is condoned.
2.
The condonation for the late filing of the Rule 7A(8)(b)
notice is dismissed.
3.
The review application is dismissed.
4.
The applicants are jointly and severally liable for the
respondents’ costs of opposing the review application, the
dismissal
application and the opposed condonation applications, the
one paying the other to be absolved.
__________________
Lagrange J
Judge
of the Labour Court of South Africa
Appearances:
For the applicant:
L.
P Mkize of CDM Mkize Attorneys
For
the respondents: Advocate
X Matyolo
Instructed
by Werksmans
Inc
[1]
Shongwe
and Others v City of Johannesburg Metropolitan
Municipality (JR483/14) [2016] ZALCJHB 67 (25 February 2016)
[2]
(2016) 37
ILJ
1839 (LAC)
[3]
At 1845, para [17].