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Moisi v Commission for Conciliation Mediation and Arbitration and Others (JR2567/16) [2019] ZALCJHB 354 (17 December 2019)

80 Reportability
Labour Law
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Brief Summary

Labour Law — Review application — Dismissal for lack of timeous prosecution — Applicant's unfair dismissal dispute referred to CCMA but review application launched outside statutory time limits — Standard Bank's Rule 11 application unopposed due to applicant's failure to comply with court rules — Court held that review application deemed withdrawn and dismissed due to non-compliance with procedural requirements and lack of prosecution — No costs order made.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an application in the Labour Court in which the third respondent, Standard Bank of South Africa Ltd, sought relief in terms of a Rule 11 application aimed at disposing of a pending review application on the basis of excessive and undue delay in its prosecution. The Rule 11 application was launched on 12 February 2019 and was unopposed.


The applicant in the underlying review was Tebogo Jacob Moisi, who sought to review and set aside a ruling of a CCMA commissioner (the second respondent, cited in a representative capacity). The CCMA was cited as the first respondent. The dispute originated from the applicant’s dismissal for alleged misconduct and proceeded through the statutory dispute-resolution processes.


Procedurally, the matter reached the Labour Court after the commissioner issued a condonation ruling refusing condonation for the late referral of the unfair dismissal dispute to arbitration. The applicant then filed a review application (also out of time and without condonation), but took no meaningful steps thereafter to advance it. Standard Bank consequently approached the Labour Court seeking the dismissal of the dormant review due to the delay in prosecution and the applicant’s non-compliance with the applicable rules and the Labour Court Practice Manual.


The general subject matter was therefore not the merits of the dismissal itself, but rather case management and finality: whether a review application that had not been prosecuted in accordance with Rule 7A and the Practice Manual could be dismissed via a Rule 11 application because of undue delay.


2. Material Facts


The applicant was employed by Standard Bank from 1 April 2012 until his dismissal on 12 August 2014 for alleged misconduct. He referred an unfair dismissal dispute to the CCMA on 25 August 2014.


Conciliation took place on 23 September 2019 and failed to resolve the dispute, after which a certificate of outcome was issued. The judgment treated the procedural history following conciliation as common cause for purposes of the Rule 11 application.


After conciliation, the applicant referred the dispute to arbitration only on 24 March 2016, which was outside the statutory time periods, and he applied for condonation for the late referral. On 14 May 2016, the commissioner issued a ruling dismissing the condonation application, on the basis that the delay of 448 days was excessive, the explanation implausible, and that good cause had not been shown.


The applicant then instituted review proceedings by filing a notice of motion on 7 December 2016. The review was itself out of time, and the applicant did not seek condonation for the late institution of the review. Standard Bank filed a notice of intention to oppose on 14 December 2016, after which the review was not meaningfully prosecuted.


Standard Bank alleged that it was served with a transcribed record of the CCMA proceedings on 14 March 2017, but the transcribed record was not filed with the Labour Court. On the same date, Standard Bank’s attorneys wrote to the applicant confirming receipt of the transcribed record and placing the applicant on terms regarding non-compliance with Rule 7A(6) and Rule 7A(8). A later attempt at settlement discussions on 7 August 2018 was unsuccessful. On 13 August 2018, Standard Bank again placed the applicant on terms regarding the same procedural non-compliance.


When no further steps were taken, Standard Bank launched the present Rule 11 application on 12 February 2019. The application remained unopposed at the hearing, although the applicant appeared in person.


The court proceeded on the basis that, in its current form, the review application was not in compliance with Rule 7A(6) and (8), read with the Practice Manual, and that the relevant Practice Manual provisions meant that the review was liable to be treated as deemed withdrawn in the absence of compliance and appropriate steps to regularise the matter.


3. Legal Issues


The central legal question was whether it was competent for the Labour Court to dismiss the applicant’s review application on the basis of lack of timeous prosecution, in circumstances where the review application was not compliant with the Labour Court Rules (particularly Rule 7A(6) and (8)) and where, under the Labour Court Practice Manual, the review was treated as deemed withdrawn (and/or lapsed/archived).


A related issue was the procedural mechanism by which a respondent may obtain finality where a review application has become dormant due to the applicant’s inaction. In particular, the court had to determine the proper role of a Rule 11 application (in light of authority on the Practice Manual) where the review is effectively stalled at a preliminary procedural stage and the respondent cannot reasonably be expected to await prosecution indefinitely.


The dispute primarily concerned the application of procedural law and binding practice directives to largely common-cause facts, together with an evaluative assessment linked to the statutory imperative of expeditious dispute resolution and fairness to both parties.


4. Court’s Reasoning


The court approached the matter by first emphasising that the review application, as it stood, was not compliant with Rule 7A(6) and (8) and with the relevant provisions of the Labour Court Practice Manual. In that context, it identified the key question as whether dismissal of the review for lack of prosecution was an available and appropriate course in the presence of a Rule 11 application.


In analysing the legal framework, the court relied on the Labour Appeal Court’s decision in Macsteel Trading Wadeville v Francois van der Merwe N.O and Others (2019) 40 ILJ 798 (LAC), which addressed the status and effect of the Practice Manual. The Labour Appeal Court had held that the Practice Manual is binding on litigants and the Labour Court, while recognising a residual discretion in its application depending on the circumstances. The court extracted from Macsteel that non-compliance with the Practice Manual time limits results in the matter being archived and regarded as lapsed unless good cause is shown to remove it from the archive or prevent that consequence.


The court further noted Macsteel’s guidance that, where a review has lapsed/been archived and there is no substantive application for reinstatement and no condonation for the delays, the Labour Court may lack jurisdiction to determine undue delay if raised only in an answering affidavit; instead, a party complaining of undue delay should bring a separate Rule 11 application seeking dismissal or striking from the roll. The court treated this authority as supporting the procedural route adopted by Standard Bank, because Standard Bank had indeed brought a separate Rule 11 application.


On the facts, the court considered the present matter distinguishable from the scenario in Macsteel in a material way. Here, the review was not only delayed; it was described as essentially dormant, because the applicant had not complied with Rule 7A(6) and (8) to the extent that the review had not reached a stage where Standard Bank could file an answering affidavit under Rule 7A(8). The court therefore considered it inappropriate to expect a respondent to wait indefinitely for an applicant to take steps that were necessary to progress the review.


In evaluating the delay, the court attached significance to the history of non-compliance and inaction. The applicant had been placed on terms and forewarned about the impending Rule 11 application, yet did not take steps to reinstate the review, to regularise the record, or to oppose the Rule 11 application. The court also mentioned that, instead of opposing, the applicant wrote correspondence to Standard Bank’s attorney that did not address the Rule 11 application, and the court did not regard that as advancing a response to the relief sought.


The court’s reasoning was informed by the primary objects of the Labour Relations Act, including the imperative of speedy resolution of labour disputes, which had been highlighted in Macsteel. The court stated that these statutory objectives would be undermined if a reviewing party could take no steps to have the dispute determined, while the opposing party remained in a state of indefinite uncertainty. The court therefore considered that respondent parties are entitled to expeditious resolution in the same way that applicants are.


The court also relied on Rule 11(4), which empowers the reviewing court to act in a manner it considers expedient to achieve the objects of the Act in incidental matters. Applying this to the case’s history, the court concluded that the applicant prosecuted the review in a lax manner and displayed nonchalance from the inception of the dispute. On that basis, and considering law and fairness, it found no reason to refuse the relief sought by Standard Bank.


Having reached conclusions that disposed of the dispute, the court further held that there was no basis for a costs order.


5. Outcome and Relief


The Labour Court granted Standard Bank’s Rule 11 application in substance and dismissed the applicant’s review application on account of lack of timeous prosecution.


The court made no order as to costs.


Cases Cited


Macsteel Trading Wadeville v Francois van der Merwe N.O and Others (2019) 40 ILJ 798 (LAC).


Samuels v Old Mutual Bank [2017] ZALAC 10 (25 January 2017).


Legislation Cited


Labour Relations Act 66 of 1995.


Rules of Court Cited


Rule 7A(5) of the Rules of the Labour Court.


Rule 7A(6) of the Rules of the Labour Court.


Rule 7A(8) of the Rules of the Labour Court.


Rule 11(4) of the Rules of the Labour Court.


Labour Court Practice Manual, clause 11.2.1.


Labour Court Practice Manual, clause 11.2.2.


Labour Court Practice Manual, clause 11.2.3.


Held


The court held that the applicant’s review application had not been prosecuted in compliance with Rule 7A and the Labour Court Practice Manual and that, in the circumstances, it was competent and appropriate to dismiss the review due to the applicant’s undue and excessive delay.


The court held further that the Practice Manual is binding and that the statutory imperative of expeditious dispute resolution would be undermined if a respondent were required to wait indefinitely while a review applicant took no steps to progress a matter. The existence of an unopposed Rule 11 application, the applicant’s failure to take remedial procedural steps, and the history of inaction justified dismissal.


The court declined to grant a costs order.


LEGAL PRINCIPLES


The Labour Court Practice Manual is binding on litigants and the Labour Court, and its time limits give effect to the Labour Court Rules and the statutory imperative of expeditious dispute resolution. Non-compliance with Practice Manual time periods may result in a review being treated as lapsed/archived or deemed withdrawn unless good cause is shown and appropriate steps are taken to regularise the process.


Where a review application has effectively lapsed or become dormant due to a failure to comply with Rule 7A and the Practice Manual, and a respondent seeks relief due to undue delay, a separate application under Rule 11 is an appropriate procedural mechanism to seek dismissal or related relief, particularly where the review has not progressed to a stage enabling the respondent to plead fully.


In exercising powers under Rule 11(4), the Labour Court may act expediently to achieve the objects of the Labour Relations Act, including the effective and speedy resolution of labour disputes. The court may take into account the history of a party’s inaction, non-compliance, and failure to take remedial steps when determining whether dismissal for want of prosecution is justified.


Costs do not automatically follow the result in Labour Court proceedings, and the court retains a discretion to make no order as to costs where it considers that appropriate in law and fairness.

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[2019] ZALCJHB 354
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Moisi v Commission for Conciliation Mediation and Arbitration and Others (JR2567/16) [2019] ZALCJHB 354 (17 December 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 2567/16
In the matter between:
TEBOGO JACOB
MOISI

Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION

First Respondent
SELLO MOPHAKI
N.
O
Second
Respondent
STANDARD BANK OF SOUTH
AFRICA LTD                 Third

Respondent
Heard:           26 November 2019
Delivered:
17 December 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The third respondent (Standard Bank) approached this Court on
12 February 2019
with a Rule 11 application seeking an
order that the review application launched by the applicant on
5 December 2016
be dismissed, on the basis of excessive and
undue delay in its prosecution. The Rule 11 application is unopposed.
[2]
The background to the Rule 11 application is fairly common cause and
may
be summarised as follows;
2.1
The applicant was employed by Standard Bank from 1 April 2012
until
his dismissal on 12 August 2014, based on allegations
of misconduct. Aggrieved with his dismissal, the applicant referred

an unfair dismissal dispute to the Commission for Conciliation
Mediation and Arbitration (CCMA)
on
25 August 2014
.
2.2
The dispute could not be resolved at conciliation proceedings held on
23 September 2019
and a certificate of outcome was issued.
2.3
The applicant only referred the dispute for arbitration on
24
March 2016
, well outside of the statutory time frames. He also
sought condonation for the late referral of the dispute.
2.4
On 14 May 2016, the second respondent (Commissioner) issued
a ruling
and dismissed the applicant’s application for
condonation on the basis that a delay of 448 days was excessive; that
the explanation
for the delay was
implausible;
and that good
cause had not been shown.
2.5
On 7 December 2016, the applicant filed his notice of
motion for the
review application. The review application was again
launched outside of the statutory time limits, and no condonation was
sought
for non-compliance with the time frames.
2.6
On 14 December 2016, Standard Bank filed its notice of
intention to
oppose the review application. Since then, no further
steps have been taken in prosecuting the review application.
2.7
Standard Bank nonetheless averred that it was only on 14 March 2017

it was served with a transcribed record of the condonation
proceedings before the CCMA. That transcribed record however was not

filed with the Court.
2.8
On 14 March 2017, Standard Bank’s attorneys of record
wrote
to the applicant confirming receipt of the transcribed record
and further placed the applicant on terms in regards to his purported

non-compliance with the requirements of rule 7A(6) and (8) of the
Rules of this Court.
2.9
On 7 August 2018, settlement discussions were held at a
meeting held
between its attorneys of record and the applicant’s
representatives (VM General and Labour Consulting CC). Those
discussions
did not yield any result.
2.10
On 13 August 2018, Standard Bank again placed the
applicant on terms in respect
of his non-compliance with the
requirements of rule 7A(6) and (8) of the Rules of this Court. When
no further steps were taken
in respect of the review application,
Standard Bank launched the Rule 11 application on 12 February 2019.
That application
remained unopposed as at its hearing.
2.11
Rather than opposing the Rule 11 application, what the applicant
instead did was to write a letter
to Mr Bongani Masuku, of Standard
Bank’s attorneys of record (Tabacks), on 12 September 2019,
which I do not deem
it necessary to repeat the contents thereof, as
it does not address the application at hand.
[3]
At the hearing of the application, the applicant appeared in person
despite
the matter being unopposed.
[4]
In the
light of the background outlined above, it is apparent that the
applicant’s application for a review in its current
form is not
in compliance with the provisions of Rule 7A(6) and (8), read
together with the provisions of the Practice Manual of
this Court. To
the extent that the review application has been deemed to have been
withdrawn in accordance with the provisions
of Clause 11.2.3
[1]
of the Practice Manual of this Court, the central issue to be
determined
is
whether it is competent for the Court to dismiss that review
application on account of lack of timeous prosecution in view of
the
Rule 11 application before the Court.
[5]
The Labour
Appeal Court in
Macsteel
Trading Wadeville v Francois van der Merwe N.O and Others
[2]
considered
the implications of the provisions of the Practice Manual and
concluded that they were
binding
on this Court and the parties
[3]
.
Furthermore,
the LAC held that;
5.1
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;
5.2
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.
5.3
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.
[6]
In this case, and to the extent that it was common cause that the
review
application in its current state was clearly not in compliance
with the Rules of this Court and the provisions of the Practice
Manual, the application would be deemed dismissed. The material facts
and circumstances of this case are however distinguishable
from those
in
Macsteel
. In this case, the matter came before the Court at
the behest of Standard Bank, by way of a Rule 11 application, in
circumstances
where the review application was essentially dormant,
as none of the provisions of Rule 7A(6) and (8) were complied with.
The review
application had not even reached a stage where Standard
Bank was placed in a position to file an answering affidavit due to
non-compliance
with the provisions of Rule 7A(8).
[7]
In the light of the above, and further in view of the fact that the
applicant
was placed on terms and forewarned of the Rule 11
application and did nothing by either seeking to reinstate the review
application
or to oppose this application, there is no reason why the
Rule 11 application should be not considered.
[8]
In
Macsteel
,
the Labour Appeal Court had placed emphasis on the
primary
object of the LRA being to promote the effective resolution of labour
disputes, integral to which was the speedy resolution
of disputes
[4]
.
This objective cannot in my view, be achieved where a reviewing party
takes no steps whatsoever in order to ensure that a dispute
is
finally determined. Furthermore, that objective would be defeated if
in circumstances where such as these, it would be expected
of the
opposing party to the review to do nothing, and to wait endlessly for
the reviewing party to take steps in order to have
a matter
finalised. Respondent parties in any litigation against them are
entitled to expeditious resolution of disputes, inasmuch
as applicant
parties are.
[9]
Rule 11(4)
of the Rules of this Court 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
[5]
.
[10]
Given the history and the circumstances of this case as outlined
elsewhere in this judgment,
and further taking into account the lax
manner with which the review application was prosecuted, and the fact
that the applicant’s
conduct from the inception of this dispute
has been that of nonchalance, there is no reason either based on law
or fairness, as
to why the Rule 11 application should not be granted.
Given these conclusions which effectively are dispositive of the
dispute
between the parties, I further find that there is no basis
for any costs order to be made.
[11]
Accordingly, the following order is made;
Order:
1. The application to
review and set aside the condonation ruling issued by the second
respondent on 14 May 2014 under case number
GAJB18949-14 is dismissed
on account of lack of timeous prosecution.
2.  The is no order
as to costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
In Person
For
the First Respondent: B. Masuku of Mervyn Tabacks Incorporated
[1]
11.2
Applications
to review and to set aside arbitration awards and rulings
11.2.1
Once the registrar has notified an applicant in terms of Rule 7A(5)
that a
record has been received and may be
uplifted, the applicant must collect the record within seven days.
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.
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. 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.
[2]
(2019) 40 ILJ 798 (LAC)
[3]
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.””
[4]
At
para 20, where it was held;
“
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.’”(citations omitted)
[5]
See
Macsteel
at
para 19

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