About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 128
|
|
Matsha and Others v Public Health and Social Development Sectoral Bargaining Council and Others (JR2380/2016) [2019] ZALCJHB 128; (2019) 40 ILJ 2565 (LC) (7 June 2019)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JR 2380 / 2016
In the matter between:
SELAELO KENNETH EDWARD
MATSHA
AND 2 OTHERS
Applicants
and
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
First Respondent
RONNIE BRACKS N.O. (AS
ARBITRATOR)
Second Respondent
DEPARTMENT OF SOCIAL
DEVELOPMENT,
GAUTENG
Third Respondent
Heard: 4 June 2019
Delivered: 7 June 2019
Summary:
Practice and procedure – rule 11 application to dismiss review
– principles considered
– excessive delay may non suit an
applicant
Practice
and procedure – Practice Manual – clause 11.2.7
considered – purpose of provision considered –
contemplates imperative of expeditious resolution of employment
disputes
Review
application – excessive delay in prosecution – no
explanation provided – applicants non suited by failure
to
prosecute – review application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
In
Toyota
SA Motors
(Pty)
Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
[1]
the Court expressed the following sentiment:
‘
Excessive
delays in litigation may induce a reasonable belief, especially on
the part of a successful litigant, that the order or
award had become
unassailable. This is so all the more in labour disputes. …’
[2]
However,
and despite this sentiment, this Court is still being inundated by
applications in terms of Rule 11 of the Labour Court
Rules to dismiss
review applications for a lack of diligent prosecution thereof by
litigants. Not only does this unnecessarily
clog up the Court roll,
but it leaves a dispute which was always intended to be expeditiously
resolved, hanging in the air. This
kind of situation creates
uncertainty, may compound liability and serves to disappoint parties
before this Court seeking nothing
else but justice. After all,
justice delayed is justice denied.
[2]
[3]
This case now before me concerns, yet
again, one of these kind of matters. It involves a review application
that is now more than
two and a half years old, where there has in
reality been nothing further done on it since it was first filed. The
matter originated
in an unfair labour practice claim pursued by the
applicants to the first respondent, concerning a dispute about their
translation
into a level 7 position at the third respondent. This
unfair labour practice dispute came before the second respondent for
arbitration,
and in an award dated 13 September 2016, the second
respondent concluded that the applicants were correctly translated
and he dismissed
their claim. The applicants’ review
application was then filed on 4 November 2016 as a result of this
award.
[4]
This
matter does not concern the merits of this review application. It
concerns an application in terms of Rule 11 brought by the
third
respondent to dismiss the applicants’ review application.
[3]
The third respondent’s Rule 11 application was filed as far
back as 12 March 2018. Other than simply filing a notice to oppose
this application on 17 April 2018, the applicants did not even file
an answering affidavit to this Rule 11 application. I will
now decide
the third respondent’s Rule 11 dismissal application by first
setting out the relevant chronology, as it appears
from the founding
affidavit and from what I was able to extract from the Court file.
The
relevant facts
[5]
As stated above, the applicants’
review application was filed on 4 November 2016. I may add that the
applicants were represented
and assisted in this review application
by their current attorneys of record, who also represented them in
the arbitration proceedings
before the second respondent.
[6]
Having
filed the review application, the applicants did nothing to further
prosecute the matter. What of course must follow the
filing of a
review application is the discovery of the record of the arbitration
proceedings by the first respondent.
[4]
Considering that the arbitration proceedings were electronically
recorded, the duty was on the applicants to obtain such recording,
have it transcribed, and then discover this transcription along with
the documentary evidence in the arbitration as the record
of the
proceedings in terms of Rule 7A(6).
[7]
I
could find no trace in the Court file of the record of the
proceedings having been discovered by the first respondent. It was
then of course up the applicant to institute proceedings to compel
the first respondent to discover the record of the proceedings,
which
compel proceedings would be brought in terms of Rule 7A(4).
[5]
But the applicants did nothing to obtain the record or bring such a
compel application.
[8]
On 8 June 2017, the State Attorney wrote to
the applicants’ attorneys. This letter
inter
alia
dealt with the issue of the
outstanding record. It was indicated that there had been no activity
on the part of the applicants
since the review was filed and that the
third respondent had not received the record. This letter was
followed up by a further
letter dated 30 June 2017, asking when the
third respondent may expect to receive the record. Finally, and on 26
July 2017, the
applicants’ attorneys were sent a letter
indicating that if the record was not received by 31 July 2017, an
application to
dismiss the review would be brought.
[9]
This letter of 26 July 2017 was not
complied with by the stipulated deadline, but it at least extracted a
response from the applicants’
attorneys. In a letter dated 8
August 2017, an indulgence of two weeks was requested to file the
record. Despite this, the record
was still not forthcoming, even in
terms of this undertaking.
[10]
The
12 month time limit as contemplated by clause 11.2.7 of the Practice
Manual then expired on 5 November 2017, with no record
in sight. The
applicants took no steps to secure a further indulgence, as
contemplated by this provision.
[6]
[11]
Finally, and on 12 March 2018, the third
respondent filed its Rule 11 application to dismiss the applicants’
review application.
In this application, the third respondent
specifically relied on clause 11.2.7 of the Practice Manual and
contended that the applicants’
review had lapsed. It was also
specifically stated that since the filing of the review application,
the applicants had done nothing
and had no taken any further steps to
prosecute the review application.
[12]
Not even this dismissal application spurred
the applicants into action. Other than simply filing a notice to
oppose the Rule 11
application more than a month later, the
applicants filed no answering affidavit. They did not attempt to
explain what they had
done in seeking to procure the record, and that
the third respondent’s allegations about their conduct was
incorrect. They
also still not seek an indulgence as contemplated by
clause 11.2.7 of the Practice Manual.
[13]
The set down notice for the Rule 11
application was sent to the parties on 11 May 2019, setting this
matter down for hearing on
4 June 2019. One would have expected that
staring down this barrel, the applicants’ attorneys would then
at least take some
proper effort to try and regularize the aforesaid
unacceptable state of affairs. Such effort should have included a
proper condonation
application and answering affidavit. But still
they did nothing
[14]
In fact, all that happened is that on 29
May 2019, less than a week before the hearing, the applicants simply
filed the record.
They did it as a matter of course, without any
attempt to explain why it had taken more than two years to do so.
[15]
Instead, and in Court on 4 June 2019, Mr
Mamathuntsha, who represented the applicants, appeared and stated
that as far as the applicants
was concerned the matter was now
opposed, the record had been filed, and the applicants should be
allowed to continue with their
review, as it would be most unfair to
deprive them of their right to do so. He was unable to explain why no
answering affidavit
or condonation application had been filed.
[16]
The above is then the factual basis upon
which the third respondent’s application to dismiss the
applicants’ review
application must be decided. I will now
proceed to apply the applicable legal principles to these facts.
Analysis
[17]
The
point of departure in deciding this dismissal application has to be
the consideration of the particular requirement of expedition
where
it comes to the prosecution of employment law disputes.
[7]
Whilst there exists a plethora of judgments that specifically
emphasize the need for expedition in employment law disputes, I would
like to highlight three judgments of the Constitutional Court (CC).
In
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[8]
,
Skweyiya J said: ‘…
the
importance of resolving labour disputes in good time is thus central
to the LRA framework. ….
’.
Further, Jafta J in
Aviation
Union of SA and Another v SA Airways (Pty) Ltd and Others
[9]
,
held: ‘…
Speedy
resolution is a distinctive feature of adjudication in labour
relations disputes …
’.
And finally, in
National
Education Health and Allied Workers Union v University of Cape Town
and Others
[10]
Ngcobo J said:
‘
By
their very nature labour disputes must be resolved expeditiously and
be brought to finality so that the parties can organize
their affairs
accordingly. They affect our economy and labour peace. It is in the
public interest that labour disputes be resolved
speedily …’
[18]
In
the light of these clear sentiments, the applicants surely have a
mountain to climb. The record was due, applying the most generous
application of the Practice Manual and Rule 7A, and considering the
intervening December 2016 holiday season,
[11]
by the end of January 2017. However, and even from this date, it took
some two years and three months to file the record. This
kind of
delay can comfortably be described as grossly excessive. Some
examples bear mention. In
Makuse
v Commission for Conciliation, Mediation and Arbitration and
Others
[12]
the Court described an 8(eight) month delay as ‘
egregious
’.
The Court in
Moila
v Shai NO and Others
[13]
described a delay of just more than a year as ‘
an
excessive delay
’,
as did the Court in
Maseko
v Commission for Conciliation, Mediation and Arbitration and
Others
[14]
for a delay of 18(eighteen) months.
[15]
In
Khumalo
supra
[16]
the Court was in fact seized with a similar delay of 20(twenty)
months as is the case
in
casu
,
and said it was ‘
unreasonable
’
and ‘
significant
’.
In the end, and as said in
Police
and Prisons Civil Rights Union v Ledwaba NO and Others
[17]
:
‘
The
delay of some two years, as matters currently stand, especially
considering the short time-limits imposed by the Labour Court
Rules
and the Practice Manual, is grossly excessive and unpalatable. The
situation is contrary to the important interest of finality
of
litigation.’
[19]
Such
an excessive delay could competently in itself lead to a matter being
disposed of, especially in the absence of any explanation.
[18]
Because of the imperative of expeditious dispute resolution in
employment disputes, such an excessive delay would normally lead,
as
a matter of general principle and barring truly exceptional
considerations and good cause, to a situation where the application
can competently be disposed of for this reason alone.
[19]
[20]
The
above general principle is then given practical application in clause
11.2.7 of the Practice Manual.
[20]
This is evident from the following
dictum
in
Samuels
v
Old Mutual Bank
[21]
,
where the Court said, with specific reference to the Practice manual:
‘…
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 standards of conduct
expected of those who practise 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. …’
[21]
Clause 11.2.7 reads:
‘
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
twelve (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.’
[22]
The
Practice Manual is not just some sort of guideline which litigating
parties may or may not comply with at their leisure, but
has binding
force, just like the Labour Court Rules.
[22]
It follows that the applicants were obliged to comply with clause
11.2.7. Compliance means, in the context of the current matter,
that
the record had to have been filed within 12 months of the date when
the applicants brought the review application. That due
date was
therefore 5 November 2017, and was clearly not met.
[23]
What
is then the consequences of such a failure to comply? First, and upon
the expiry of the time period, it caused the review application
to
lapse, and following on, the archiving thereof. The result of this
was described in
Macsteel
Trading Wadeville v Van der Merwe NO and Others
[23]
as follows:
‘
As
indicated, the review application was archived and regarded as lapsed
as a result of NUMSA’s failure to comply with the
Practice
Manual. There was also no substantive application for reinstatement
of the review application, and no condonation sought
for the undue
delay in filing the record. As contended for by Macsteel, the Labour
Court was, as a matter of law, obliged to strike
the matter from the
roll on the grounds of lack of jurisdiction, alternatively, give
Macsteel an opportunity to file a separate
rule 11 application
demonstrating why the matter should be dismissed or struck from the
roll on the basis of undue delay.
’
[24]
In
casu
,
the third respondent exercised the right afforded to it upon the
lapsing of the applicants’ review application, by indeed
bringing the Rule 11 dismissal application.
[24]
In the face of this application, the applicants only had one choice
to save their review application, and that is to show good
cause to
resurrect it. The concept of ‘
good
cause
’
as contemplated by clause 11.2.7 of the Practice Manual was describes
in
Samuels
supra
as follows:
[25]
‘
In
essence, an application for the retrieval of a file from the archives
is a form of an application for condonation for failure
to comply
with the court rules, time frames and directives. Showing good cause
demands that the application be bona fide; that
the applicant provide
a reasonable explanation which covers the entire period of the
default; and show that he/she has reasonable
prospects of success in
the main application, and lastly, that it is in the interest of
justice to grant the order. It has to be
noted that it is not a
requirement that the applicant must deal fully with the merits of the
dispute to establish reasonable prospects
of success. It is
sufficient to set out facts which, if established, would result in
his/her success. In the end, the decision
to grant or refuse
condonation is a discretion to be exercised by the court hearing the
application which must be judiciously exercised.
’
[25]
The
applicants, despite being forewarned, did not seize this opportunity.
They never applied for condonation, they did not offer
an explanation
for the delay, and certainly did not show any good cause. The delay
in this case cried out for the applicants taking
the Court into their
confidence and providing an explanation.
[26]
Consequently, when the matter came before me, it remained lapsed and
archived. What must follow, as said in
Macsteel
supra
,
[27]
is:
‘…
The
Labour Court determined the ‘lapsed application’ in the
absence of a substantive reinstatement application and an
order
reinstating the review application. Put simply; the Labour Court
determined the review application when it had no jurisdiction
to do
…
’
[26]
Because the third respondent indeed filed a
Rule 11 application as contemplated by the judgment in
Macsteel
supra
, and in the complete absence of
any condonation application or attempt to show good cause by the
applicants, a simple consequence
must follow. That consequence is
that the review application must now be dismissed.
[27]
I also feel compelled to make some comments
about the manner in which the applicants approached this entire
matter. They did not
comply with their own earlier undertaking to
file the record. They did nothing, as said, when specifically warned
that they were
on dangerous ground. They did not even react to the
Rule 11 application and at least then file the record with a proper
condonation
application showing good cause. What they did was to
simply file the record on the eve of the hearing of the Rule 11
application,
and come to Court on the day of the hearing and say that
they have now filed the record and be given the chance to proceed
with
the review. This is an entirely unacceptable state of affairs.
[28]
In my view, this kind of attitude adopted
by litigants is a side effect of the notion of fairness that
underlies all decision making
in this Court. Judges want to be seen
to act fairly, and are often loathe to visit a litigant with the
culling of the matter on
the merits because of failures committed by
the litigant in the course of the litigation process. Often, legal
practitioners who
so fail, plead that their individual clients should
be prejudiced by this and will suffer if the Court does not come to
their aid.
That way, litigants get away with things they should not
get away with, and this creates the fertile soil in which this kind
of
conduct continues to thrive. At some point one has to say –
enough is enough. The Practice Manual has been in effect for six
years. It says a review application is urgent. It also says the
prosecution of the review must be completed in 12 months. It provides
that if this cannot be complied with, then at least good cause must
be shown – i.e. a proper condonation application must
be
brought. Where this does not happen, and the other party asks for the
dismissal of the review, then fairness to the review applicant
and
its right to review must for once sit in the back seat and the review
application must be dismissed.
[29]
I
conclude by saying that even if one may assume that the applicants’
review application may have some merit, the existence
of the
excessive and unexplained delay in excess of two years, and the
failure to show good cause, must trump all else. In my view,
the
following dictum in
Ferreira
v Die Burger
[28]
would find application
in
casu
,
where the Court said:
‘
I
am sympathetic to the fact that the applicant may have a case but,
were we to grant this application, this court would subvert
a crucial
principle in matters which deal with personal relationships, namely
labour relations, that these disputes have to be
dealt with
expeditiously and finalized as quickly as possible. Where in a case
such as this, there has been so flagrant of violation
of the rules,
then, as Myburgh JP correctly decided, a lack of any explanation at
all shrugs off other considerations.’
[30]
For all the above reasons, the third
respondent’s Rule 11 application to dismiss the applicants’
review application
must succeed. It follows that the applicants’
review application must be dismissed. The grossly excessive delay,
the failure
to comply with the Practice Manual, and the complete
absence of good cause being shown, must bring an end to the
proceedings, once
and for all, by way of the dismissal of the review
application.
Conclusion
[31]
In all the circumstances as set out above,
there is no need to prolong this matter further. The actual need is
to bring it to an
end. It is in the interest of justice and in line
with the requirement of the expeditious resolution of employment
disputes that
the review application must be finally dismissed.
[32]
This
only leaves the issue of costs. I have a wide discretion where it
comes to the issue of costs, having regard to the provisions
of
section 162(1) of the LRA.
I
am aware of what the CC said with regard to costs in employment
disputes as expressed
in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[29]
.
However, the judgment in
Zungu
cannot serve as some or other blanket immunization from costs orders.
There would always be circumstances in which a judicial exercise
of
the discretion, where it comes to costs, justifies costs being
awarded. In exercising this judicial discretion, the CC
recently re-affirmed the principle set in
Zungu
and stated that ‘
when
making an adverse costs order in a labour matter, a presiding officer
is required to consider the principle of fairness and
have due regard
to the conduct of the parties.’
[30]
[33]
The applicants were legally assisted
throughout these proceedings. I thus accept that where it comes to
the intricacies of prosecuting
a review application and the
provisions of the Practice Manual, the applicants would be very much
in the hands of their attorneys,
having gone through the trouble and
expense of engaging them. The third respondent, when this matter was
argued, did not move for
a costs against the applicants, and
considering what actually happened in this case, I believe justly so.
This is not case where
the applicants themselves should be burdened
with a costs order, which I believe will not be fair. But I do
believe the applicants’
attorneys cannot escape scot-free,
because of the manner in which they failed the applicants.
[34]
The
kind of approach adopted by the applicants’ attorneys in this
case flies in the face of clear authority by all the higher
Courts
and this Court, tasked with the adjudication of employment disputes.
They acted in clear and direct violation of the Practice
Manual,
which the applicants’ attorneys, when deciding to practice in
this Court, must be fully familiar with. I once again
highlight that
they were warned by the State Attorney of the consequences of their
conduct, but elected to do nothing. And then,
to simply file the
record on the steps of the Court, so to speak, without a hint of
trepidation or seeking indulgences, speaks
volumes. In terms of the
broad discretion I have with regards to costs, I believe this is a
situation where the applicants’
attorneys must forfeit their
fees in this matter.
[31]
[35]
For all of the reasons as set out above, I
make the following order:
Order
1.
The third respondent’s application in
terms of Rule 11 to dismiss the applicants’ review application
is granted.
2.
The applicants’ review application is
consequently dismissed.
3.
There is no order as to costs.
4.
The applicants’ attorneys shall not
be entitled to charge the applicants any fees or disbursements for
the review application
and the Rule 11 application.
_____________________
S Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicants: Mr
C Mamathuntsha of Mamathuntsha Inc Attorneys
For the Third
Respondent: Adv
Mlambo
Instructed
by: The
State Attorney
[1]
(2016)
37 ILJ 313 (CC) at para 45.
[2]
See
Langa
and Others v Active Packaging (Pty) Ltd
(2001)
22 ILJ 397 (LAC) at para 6.8;
Khoza
v Sasol Ltd
(2002) 23 ILJ 1567 (LC) at para 12.
[3]
Rule
11(1) reads: ‘
The
following applications must be brought on notice, supported by
affidavit: (a) Interlocutory applications; (b) other
applications incidental to, or pending, proceedings referred to in
these Rules that are not specifically provided for in the
rules; and
(c) any other applications for directions that may be sought
from the court
’
.
What must also be considered is Rule 11(4), which reads: ‘
In
the exercise of its powers and in the performance of its functions,
or in any incidental matter, the court may act in a manner
that it
considers expedient in the circumstances to achieve the objects of
the Act.
’
[4]
See
Rule 7A(2) and (3) of the Labour Court Rules.
[5]
Rule 7A(4) reads: ‘
If
the person or body fails to comply with the direction or fails to
apply for an extension of time to do so, any interested party
may
apply, on notice, for an order compelling compliance with the
direction
’
.
See also
National
Education Health and Allied Workers Union on behalf of Vermeulen v
Director-General: Department of Labour
(2005) 26 ILJ 911 (LC) at para 14.
[6]
Clause 11.2.7 of the Practice Manual will be dealt with in more
detail later in this judgment.
[7]
See
Toyota (
supra
)
at para 34;
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) and Others
(2015)
36 ILJ 232 (LC) at para 25.
[8]
(2014)
35
ILJ
613 (CC) at para 42.
[9]
(2011)
32
ILJ
2861
(CC) at para 76.
[10]
(2003)
24
ILJ
95 (CC) at para 31. See also
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
(2010) 31 ILJ 273 (CC) at para 46;
Strategic
Liquor Services v Mvumbi NO and Others
(2009)
30 ILJ 1526 (CC)
at
paras 12 – 13.
[11]
See
Transport
and General Workers Union and Others v Hiemstra NO and Another
(1998)
19
ILJ
1598 (LC)
at
para
7
.
[12]
(2016)
37 ILJ 163 (LC) at para 15.
[13]
(2007)
28 ILJ 1028 (LAC) at para 27.
[14]
(2017)
38 ILJ 203 (LC) at para 15.
[15]
See
also
Transport
and Allied Workers Union of SA and Others v Unitrans Fuel and
Chemical (Pty) Ltd
(2015) 36 ILJ 2822 (LAC) at para 34 where the Court dealt with a
delay of a year, and
GIWUSA
on behalf of Heyneke v Klein Karoo Kooperasie Bpk
(2005) 26 ILJ 1083 (LC) at para 14 where the delay was 11 months.
[16]
Id
at paras 50 and 68.
[17]
(2016)
37 ILJ 493 (LC) at para 21.
[18]
See
Toyota
(
supra
)
at para 47;
Khumalo
(
supra
)
at paras 68 – 69.
[19]
National
Education Health and Allied Workers Union on behalf of Leduka v
National Research Foundation
(2017)
38 ILJ 430 (LC) at para 17.
[20]
Which became operative on 2 April 2013.
[21]
(2017)
38 ILJ 1790 (LAC) at para 14. See also
Macsteel
Trading Wadeville v Van der Merwe NO and Others
(2019) 40 ILJ 798 (LAC) at paras 21 – 22.
[22]
See
Sepheka
v Du Pont Pioneer (Pty) Ltd
(2019)
40 ILJ 613 (LC) at para 7;
National
Education Health and Allied Workers Union on behalf of Leduka v
National Research Foundation
(2017)
38
ILJ
430 (LC)
at
para
31
.
See also
Ralo
v Transnet Port Terminals and Others
(2015)
36 ILJ 2653 (LC)
at
para
9
;
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014)
35 ILJ 1672 (LC)
at
para
11
;
Butana
v SA Local Government Bargaining Council and Others
[2016] JOL 36088
(LC) at paras 8-9.
[23]
(2019)
40 ILJ 798 (LAC) at para 25.
[24]
It is competent to use Rule 11 for this purpose – see
Toyota
(
supra
)
at paras 25 and 46;
Macsteel
(
supra)
at para 24.
[25]
Id at para 17.
[26]
Compare
Toyota
(
supra
)
at para 42.
[27]
Id at para 27.
[28]
(2008)
29
ILJ
1704 (LAC) at para 8.
[29]
(2018)
39 ILJ 523 (CC) at para 25.
[30]
Long
v South African Breweries (Pty) Ltd and Others
(CCT61/18)
[2019] ZACC 7
(19 February 2019) at para 30.
[31]
Compare
Mashishi
v
Mdladla NO and Others
(2018)
39 ILJ 1607 (LC);
Sepheka
v Du Pont Pioneer
(Pty) Ltd (
supra
).