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[2019] ZALCJHB 200
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Zwane v Samson NO and Others (JR393/16) [2019] ZALCJHB 200 (13 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 393-16
Not Reportable
In
the matter between:
LINDA
PRINCE
ZWANE Applicant
And
MOHINI
SAMSON,
N.O. First
Respondent
CCMA
Second
Respondent
SOUTH
AFRICAN BREWERIES LTD Third
Respondent
Heard:
1 August 2019
Judgment
delivered: 13 August 2019
JUDGMENT
WHITCHER
J
[1]
The labour courts and the apex court have repeatedly emphasized that
review applications,
by their nature, are urgent and must be
prosecuted expeditiously so that the opposing party can organise its
affairs accordingly.
The Practice Manual of this court is designed to
give effect to this principle. Notwithstanding this, parties continue
to prosecute
review applications with no regard to the aforesaid
principles.
[2]
The matter before me concerns an application to reinstate a review
application filed on
11 April 2016.
[3]
On 24 June 2016, the applicant served part of the record. It was
served about 10 days outside
the 60 day period contemplated in Clause
11.2.2 of the Practice Manual; a condonable delay if this had been
the only delay.
[4]
On 20 July 2016, Bowman’s for the third respondent (SAB)
notified the applicant’s
attorneys, Ndumiso Voyi Incorporated
(Voyi) that the filed record was incomplete.
[5]
In response, Voyi filed the rest of the record on 27 January 2017,
which meant the proper
record was filed 7 months late.
[6]
On 10 February 2017, Voyi asked Bowmans for an extension of time to
file the supplementary
founding affidavit by no later than 20
February 2017. Bowmans agreed to this request.
[7]
However, the supplementary founding affidavit was filed 7 months
after 20 February 2017,
on 27 September 2017, and served 8 months
after 20 February 2017. It was dispatched to Bowman’s by post
and was received
on 20 October 2017.
[8]
Notably, on 25 October 2017 in a letter to Voyi, Bowmans complained
about the lengthy details and made
it clear that in terms of the
Practice Manual, the review application was deemed to have lapsed.
[1]
Bowman’s made the same point in its answering affidavit, filed
on 25 November 2017, and in its heads of filed on 28 March
2018.
[9]
This application (for the reinstatement of the review application)
was then filed on 4 April 2018. It
was filed more than a year after
the complete record was filed, more than 6 months after the late
supplementary founding affidavit
was filed and more 5 months after
Bowman’s initial complaint.
[10] The
attitude taken in the application is that the application is
unnecessary because (i) the filing of the answering
affidavit
constituted a further step to advance the litigation process (and
thus acquiescence to the applicant’s failure
to comply with the
Practice Manual) and (ii) SAB failed to formally apply for the review
application to be archived. To the extent
that an explanation for the
delays is needed, the applicant’s attorneys did not appreciate
the extent of the reading that
occasioned a voluminous record, when
balanced against the other matters the firm was dealing with at the
time. These submissions
have no merit.
[11] Rule 30
of the URC does not find application in this matter and SAB’s
letters and answering affidavit, read
correctly, do not express
acquiescence to the applicant’s non-compliance with the
Practice Manual. The various delays were
squarely raised as an issue
on 20 July, 25 October, 20 November 2017 and 28 March 2018. Moreover,
condonation for non-compliance
falls within the purview of the Court.
Finally, the deeming provisions in the Practice Manual are what they
say, deeming provisions,
which means they do not require an active
step from a respondent to bring them into effective.
[12] As for
the explanation for the delays, the statement to the effect that the
firm was busy with other matters and
it took time [on my calculation,
1 year, 3 months
[2]
] to analyse
the voluminous record is so vague that it amounts to no explanation.
It further provides no explanation for the late
filing of the record.
The applicant has thus provided no good reason for the delays which
are
in
violation of SAB’s right to a speedy resolution of labour
disputes.
[13] There is
an additional consideration. As noted above, this application (for
the reinstatement of the review application)
was only filed on 4
April 2018 - more than a year after the complete record was filed,
more than 6 months after the late supplementary
founding affidavit
was filed and more 5 months after Bowman’s initial complaint.
The applicant was under an obligation to
institute an application for
condonation (reinstatement of the review application) as soon as
possible after becoming aware of
his defaults.
[3]
He did not, and has provided no explanation for the delay.
[14] In light
of the above findings – that the applicant has failed to
provide a reasonable and bona fide explanation
for the excessive
delays in the prosecution of the review, there is no requirement for
this Court to consider the applicant’s
prospects of success in
the review application.
[4]
[15] However,
as a matter of caution, I did consider the applicant’s
prospects of success and concluded that they
were not of a standard
as to outweigh the weak explanation for the delays.
[16]
The review amounts to no more than a regurgitation of the submissions
the applicant made at the arbitration. It
is evident from the record
and the award that the
commissioner
pertinently applied her mind to all these submissions and rendered
detailed findings that are logically and reasonably
connected to the
evidence that was before her. There is no demonstration with
reference to the evidence on record that the commissioner
overlooked
material facts or failed to give the applicant a hearing on any of
the issues raised in the review application.
[17] The only
issue which gave me some pause is the commissioner’s decision
on the fairness of the disciplinary
hearing. The evidence on record
demonstrates that the chairperson of the disciplinary enquiry was
grossly bias and disrespectful
to the applicant and thus failed to
give the applicant a fair hearing. The commissioner acknowledged this
but awarded only one
month’s compensation. If I had been the
commissioner, I would probably have awarded more than one month’s
salary. However,
I cannot say that the commissioner’s award is
one that another commissioner
could
not possibly have granted,
given the particular circumstances of this case.
[18]
Applicant’s counsel submitted that the misconduct of the
chairperson amounted to substantive unfairness.
Even if this is
arguable, it does not assist the applicant to a finding that the
dismissal was substantively unfair in light of
the commissioner’s
mandate in an arbitration to determine whether
overall
the
dismissal was substantively fair [that is, determine whether the
applicant’s dismissal in any event was warranted]; which
the
commissioner did.
[19] In the
premises, I make the following order:
O
rder
1. The
application to reinstate the review application is dismissed.
2. The
review application is dismissed.
3.
There is no order as to costs.
________________________________
Whitcher
J
Judge of the Labour
Court of South Africa
APPEARANCES:
For
the Applicant:
B
Ford, instructed by
Ndumiso Voyi Incorporated
For
the Third Respondent: L
Mongie, from Bowman Gilfillan
Inc.
[1]
The Practice Manual:
Clause
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.
Clause
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.
Clause
11.2.4: If the record of the proceedings under review has been
lost, or if the recording of the proceedings is of
such poor quality
to the extent that the tapes are inaudible, the applicant may
approach the Judge President for a direction
on the further conduct
of the review application.
Clause
11.2.7: 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.
[2]
From
24 June 2016.
[3]
See:
Mewusa
obo Mahatola and Others v F and J Electrical
(JS1002/09) [2016] ZALCJHB 167 (26 April 2016).
[4]
See:
Colett
v CCMA and Others
[2014] 6 BLLR 523
(LAC); (2014) 35 ILJ 1948 (LAC);
Makuse
v CCMA and Others
[2015] 12 BLLR 1216
(LC); (2016) 37 ILJ 163 (LC).