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[2019] ZALCJHB 353
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Mthembu v Commission for Conciliation Mediation and Arbitration and Others (JR1643/17) [2019] ZALCJHB 353; (2020) 41 ILJ 1168 (LC) (13 December 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 1643/17
In the matter between
NICHOLAS
MTHEMBU

Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION

First Respondent
LUNGILE MTIYA
N.
O
Second Respondent
SOUTH DEEP GOLD MINE –
a division of
GOLDFIELDS LTD

Third Respondent
Heard:          26 November 2019
Delivered:
13 December 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
For the sake of convenience in this Rule 11 application, the parties
will
be referred to as cited in the review application launched on
13 February 2018. The third respondent (South Deep) seeks

to have the review application launched by the applicant dismissed on
account of lack of timeous prosecution.
[2]
The applicant had sought to review and set aside the arbitration
award
under case number GAJB9513-16 issued by the second respondent
(the Commissioner) acting under the auspices of the Commission for

Conciliation Mediation and Arbitration (CCMA). The arbitration award
was issued pursuant to the applicant having referred an alleged

unfair dismissal dispute to the CCMA. The Commissioner had concluded
that the dismissal of the applicant by South Deep was fair.
[3]
The undisputed facts and circumstances of this case are summarised as
follows;
3.1
The arbitration award in terms of which the applicant’s claim
of an alleged
unfair dismissal was issued on or about
7 September 2016.
3.2
The review application was launched on 13 February 2018,
some 16 months
outside of the statutory time periods, and not a mere
seven months as alleged by the applicant in his application for
condonation.
3.3
Upon receipt of the applicant’s review application, South Deep
had on
28 February 2018, filed its notice of intention to
oppose.
3.4
No further steps were taken by the applicant in prosecuting the
review application
since the notice of intention to oppose was filed.
There was no compliance with the provisions of rule 7A(3) of the
Rules of this
Court by the first and second respondent.
3.5
It was against the above background that South Deep launched the
current Rule
11 application on 7 August 2019. Despite the
application having been properly served, it remained unopposed as at
the
time of its hearing.
[4]
At the hearing of these proceedings, Ms Mostert on behalf of the
applicant
had sought a postponement in order for an answering
affidavit to the Rule 11 application to be filed. The request for a
postponement
was refused for a variety of reasons. Chief amongst
these was that the deponent to the founding affidavit to the Rule 11
application,
Mr B.S Nhlapho, and South Deep’s the attorney of
record, had in April 2019 contacted the applicant and was advised
that he
was still consulting with his legal representatives in
respect of the review application. The applicant had further
undertaken
to revert to Mr Nhlapho but had failed to do.
[5]
On 13 June 2019, Mr Nhlapho had again contacted the
applicant
and was advised that his legal representatives were
busy
with the review application. The applicant was also at the time,
forewarned that the Rule 11 application would be launched to seek
a
dismissal of the review application.
[6]
On 14 June 2019, the applicant had contacted Mr Nhlapho and
indicated his intention to proceed with the review application and
undertook to contact Mr Nhlapho on 21 June 2019. Again,

nothing came out of the undertakings made by the applicant.
[7]
In my view, the applicant as evident from his interactions with Mr
Nhlapho
was aware with the problems with his review application, and
the Rule 11 application. A postponement to further grant the
applicant
an opportunity to either take any further steps in respect
of the review application or to file an answer to the Rule 11
application
would not have served any purpose.
[8]
It being common cause that no further steps were taken in order to
prosecute
the review application since 13 February 2018
(that is exactly some one year and nine months since it was
launched),
the issue is whether it would be competent for the Court
to dismiss the review application on account of lack of timeous
prosecution.
[9]
The review application in its current state is obviously is not in
compliance
with the Rules of this Court or the provisions of this
Court’s Practice Manual. Clause 11.2.3 of the Practice Manual
provides
that;
‘
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. The application must be
accompanied by proof of service on all other parties, and answering

and replying affidavits may be filed within the time limits
prescribed by Rule 7. The Judge President will then allocate the file

to a judge for a ruling, to be made in chambers, on any extension of
time that the respondent should be afforded to file the record
‘
[10]
The above
provisions received attention in
Macsteel
Trading Wadeville v Francois van der Merwe N.O and Others
[1]
,
and
flowing from that decision, it can be accepted that;
10.1
T
hese
provisions are binding on this Court and the parties
[2]
;
10.2
Where the time limits are not complied with, the application will be
archived and be regarded
as lapsed unless good cause is shown why the
application should not be archived or be removed from the archives;
10.3
Where undue delay in prosecuting the review application is raised in
the answering affidavit
in the review application, and since that
application had in effect lapsed and been archived, this Court would
lack jurisdiction
to determine the issue of the undue delay raised
there. In these circumstances, a party complaining of undue delay
would have been
required to bring a separate Rule 11 application for
the review application to be dismissed or struck from the roll on the
grounds
of the other party’s undue delay in prosecuting it.
10.4
Once the review application was archived and regarded as lapsed as a
result of a party’s
failure to comply with the Practice Manual,
and there was also no substantive application for reinstatement of
the review application,
and no condonation was sought for the undue
delay in filing the record, the Court is as a matter of law, obliged
to strike the
matter from the roll on the grounds of lack of
jurisdiction or alternatively, to give the party affected by the
undue delay, 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 that delay.
[11]
I
n
SAPU
obo Mnisi v SSSBC
&
Others
[3]
,
this
Court’s approach (per Moshoana J), which relied on
Macsteel
was
that;
11.1
Once a case has been withdrawn, such a case is not
justiciable in a court of law.
11.2
The dismissal of a review that has been withdrawn
no longer affect the interest of the parties. It has no practical
effect to the
parties nor does it serve the interests of justice
;
11.3
A review application that is deemed to be
withdrawn does not exist. Put differently, there is nothing before
the Court to be dismissed.
This Court will have no jurisdiction to
dismiss a non-existent review application
.
11.4
A review application that is set down for a hearing after having been
deemed withdrawn ought
to be struck off the roll rather than being
dismissed.
[12]
One cannot quarrel with the above approach to the extent that it
re-states the legal position
as supported by
Macsteel
. Several
practical difficulties however needs to be highlighted insofar as
applying the provisions of the Practice Manual are concerned.
The
obvious difficulty is that these provisions continue to be flouted
despite being in place since April 2013 when they became

effective. Certain parties continue to fail to comply with the
provisions of Rule 7A or those of the Practice Manual, and there
are
no consistent mechanisms in place to either enforce the deeming
provisions in the sense that this Court or the Office of the

Registrar effectively and physically archive files as a consequence
of non-compliance.
[13]
In some instances, review applications are launched without any
further steps being taken
as in this case, and the applicants in
those matters only wake up from their slumber when confronted with
Rule 11 applications.
Invariably, matters in which there was
non-compliance with the time frames, or deemed withdrawn, or where
there was no application
for reinstatement or even an application for
condonation for non-compliance with the time frames find themselves
on the court’s
rolls. In other instances, the other party would
have raised the issue of non-compliance in the answering affidavit,
which nonetheless
would have failed to jolt the reviewing party into
taking corrective action. In other instances, the opposing party
would raise
the issue of non-compliance .
[14]
In
SAPU obo Mnisi v
SSSBC & Others
, Moshoana J
suggested a practical solution to the above administrative conundrum
which impacts on the adjudication of these matters
by stating that;
“
I
fail to understand the practical effect of dismissing a withdrawn
review. The approach taken by Van Niekerk J in Ralo, was to
struck
such a review off the roll when it was enrolled despite having been
deemed withdrawn. Such to me is a proper approach and
it commands to
certainty. In my view, the Registrar must refuse to enroll deemed
withdrawn until reinstated by a court. A system
may have to designed
by the Registrar to identify such matters. This would do the already
congested roll a lot good. As a corollary
to that, the Registrar must
refuse to enroll Rule 11 applications seeking to
dismiss reviews that are deemed withdrawn”
[15]
Inasmuch as I agree with the above proposition, the only difficulty
however is with the
suggestion that the Registrar should not enrol
Rule 11 applications were matters have been deemed withdrawn as a
matter of practice.
The provisions of Rule 11 cannot be rendered
redundant by those of the Practice Manual in
all
instances.
[16]
In
Macsteel
,
the LAC confirmed that this Court would lack jurisdiction in
instances where a matter is deemed withdrawn and where the opposing

party only raised the issue of non-compliance with the time frames in
the answering affidavit
. In these circumstances, a party
complaining of undue delay would have been required to bring a
separate Rule 11 application for
the review application to be
dismissed or struck from the roll on the grounds of the other party’s
undue delay in prosecuting
it. I do not however understand the
principle to imply that a party can only bring a Rule 11 application
once it has been placed
in a position to file an answering affidavit
and raised the issue of non-compliance.
[17]
It often happens in this Court as the facts of this case
demonstrates, that reviewing parties
file the applications and do
absolutely nothing thereafter. In my view, it would defeat the whole
concept of expeditious resolution
of disputes if opposing parties
were to be required to wait endlessly for the reviewing party to file
everything required in terms
of the Rules, and to only thereafter
complain about the non-compliance in the answering affidavit. Once a
matter is deemed withdrawn,
and the reviewing party does nothing by
way of an application to reinstate or to seek condonation for
non-compliance with the time
frames for the matter to be resurrected,
it cannot be expected of the opposing party to wait endlessly. The
only way of putting
an end to the matter would be by way of a Rule 11
application. To hold otherwise would effectively place opposing
parties in review
applications at the mercy and whim of the reviewing
parties.
[18]
It is therefore my view that  given the wide discretion that
this Court enjoys when
interpreting and applying
the provisions of the Practice Manual as
acknowledged
in both
Macsteel
and
Samuels
,
there is nothing that prevents the Court
from considering and dismissing a review application in the face of a
Rule 11 application,
even in circumstances where that application was
deemed withdrawn. O
bviously that decision
will be determined by the facts and circumstances of a particular
matter before the court
.
[19]
The
above view is held in the light of the emphasis placed by the LAC in
Macsteel
that
Rule
11(4) provides that in the exercise of its powers and the performance
of its functions, or any incidental matter, a reviewing
court may act
in a manner that it considers expedient in the circumstances to
achieve the objects of the Act. This provision gives
the Labour Court
a wide discretion to take any course of action to achieve the objects
of the Act
[4]
, and furthermore,
there is an appreciation that the underlying objective of the
Practice Manual is the promotion of the statutory
imperative of
expeditious dispute resolution, and to enforce and give effect to the
rules of the Labour Court and the provisions
of the LRA
[5]
.
[20]
Effectively, the Rules of this Court work in tandem with the
provisions of the Practice
Manual, and it is my view that it could
not therefore have been envisaged when the Practice Manual was put in
place, that its provisions
would override those of the Rules of this
Court or render them impotent. The Rules are subordinate legislation
in any event, and
still enjoys primacy in review matters, especially
where they would give effect to the primary objectives of the LRA.
[21]
The Court cannot be sympathetic to litigants who sit on their rights
to pursue matters
before it. Furthermore, this Court and the Office
of the Registrar, cannot be burdened with dormant matters that clog
up the Court’s
roll unnecessarily. The whole system of
administration of justice will collapse if litigation is willy-nilly
initiated, without
any further steps being taken to bring it to
finality.
[22]
The facts and circumstances of this case fortifies
my conclusions as above. T
he applicant in this case has not
sought a reinstatement of the review application. In fact, the review
application since it was
launched in February 2018, has not
moved an inch towards prosecution. It is worth repeating that it is
some one year and nine months since the review
application was filed.
Effectively, the review application is
dormant, and is nowhere near being ripe for a hearing. It did not
require some action on
the part of South Deep or the Office of the
Registrar to resurrect that matter. That responsibility remained with
the applicant
in ensuring that his matter was alive at all material
times, which meant that he was supposed to have done what the
provisions
of the Rules and the Practice Manual of this Court
required him to do.
[23]
In
Macsteel
,
emphasis was placed on the underlying objective of the Practice
Manual, which is the promotion of the statutory imperative of

expeditious dispute resolution
[6]
.
The Labour Appeal Court had further held that;
“
A
primary object of the Act is to promote the effective resolution of
labour disputes, integral to which is the speedy resolution
of
disputes. As stated by the Constitutional Court in
Toyota:
‘
Any
delay in the resolution of labour disputes undermines the primary
object of the LRA.  It is detrimental not only to the
workers
who may be without a source of income pending the resolution of the
dispute but ultimately, also to the employer who may
have to
reinstate workers after many years.’”
[7]
[24]
In circumstances such as in this case, where the applicant was
notified of the intention
to oppose the review application, and
further where no steps were taken either to prosecute the review
application, or to reinstate
the review after it was deemed
withdrawn, or worst still, where the applicant was aware of the Rule
11 application and took no
steps in either opposing that application
or taking any steps that indicated any intention that there is still
an interest in pursuing
the review application, it cannot for all
intents and purposes, be concluded that any such conduct on the part
of the applicant
contributes in any meaningful way towards the
expeditious resolution of disputes. In my view, such conduct is the
antithesis of
the very objectives of the LRA. It constitutes an abuse
of the Court’s process and cannot for whatever reason be
countenanced.
[25]
The
facts of this case as already outlined elsewhere in this judgment are
clearly materially distinguishable from those in
Macsteel
,
Ralo
[8]
and
SAPU
obo Mnisi v SSSBC & Others.
Inasmuch as the applicant is entitled to have his case finally
determined by this Court, this Court cannot come to his assistance
if
he practically did nothing to pursue his matter. The fact that his
review application was deemed withdrawn, does not imply that
South
Deep is precluded from taking steps to bring it to finality. South
Deep is entitled to continue with its affairs, without
having to
wonder when the applicant will ever take any steps in prosecuting the
review application and bringing the matter to finality.
The
applicant’s review application has been plagued by delays from
the moment it was launched. It was launched some 16 months
outside of
the statutory time periods, and no efforts whatsoever have been made
to prosecute it to finality. In these circumstances,
the interests of
expeditious resolution of disputes in line with the primary
objectives of the LRA dictate that the Rule 11 application
be
granted.
[26]
I have had regard to the requirements of law and fairness, and I am
of the view that a
costs order given the circumstances of this case
and the conclusions reached above dictate that no such costs order be
made. In
the premises, the following order is made;
Order:
1.The application to
review and set aside the arbitration award issued by the second
respondent under case number GAJB9513-16 is
dismissed on the grounds
of lack of timeous prosecution.
2.There is no order as to
costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
B Mostert of Bianca Mostert Attorneys
For
the First Respondent:  B Nhlapho of Cliffe Dekker Hofmeyr
Incorporated
[1]
(2019) 40 ILJ 798 (LAC)
[2]
At para 22 – 23 where the Labour Appeal Court held;
“
[22]       The
underlying objective of the Practice Manual is the promotion of the
statutory
imperative of expeditious dispute resolution. It enforces
and gives effect to the rules of the Labour Court and the provisions

of the LRA. It is binding on the parties and the Labour Court. The
Labour Court does, however, have a residual discretion to
apply and
interpret the provisions of the Practice Manual, depending on the
facts and circumstances of a particular case before
the court.
[23]       …
Clause 11.2.7 imposes an obligation on the applicant 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 argument), and the registrar is informed in writing that the
application is ready to be set down 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 be archived or be removed from the archive...”
See
also
Samuels v Old Mutual Bank
[2017] ZALAC 10
(25
January 2017) at para 14 – 15, where it was held,
“
The
consolidated practice manual which came into operation on
2 April 2013 constitutes a series of directives issued
by
the Judge President over a period of time. 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 standard of conduct
expected of
those who practice 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.
The
practice manual
is not intended to
change or amend the existing Rules of the Labour Court
but
to enforce and give effect to the Rules, the Labour Relations Act as
well as various decisions of the courts on the matters
addressed in
the practice manual and the Rules.
Its
provisions therefore are binding
. The
Labour Court’s discretion in
interpreting
and applying
the provisions of the
practice manual remains intact, depending on the facts and
circumstances of a particular matter before
the court.””
[3]
Case
no:
JR2597/201(Unreported
and delivered on 19 August 2019)
[4]
At
para 19
[5]
At
para 22
[6]
At
para 21
[7]
At
para 20
[8]
Ralo
v Transnet Port Terminals and others
[2015]
12 BLLR 1239
(LC
)