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[2020] ZALCJHB 12
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Mogale City Local Municipality v IMATU obo Moreki and Others (JR1611/16) [2020] ZALCJHB 12 (29 January 2020)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR 1611/16
In
the matter between:
MOGALE
CITY LOCAL MUNICIPALITY

Applicant
and
IMATU
OBO KGOMOTSO MOREKI

First
Respondent
THE SOUTH AFRICAN
LOCAL
GOVERNMENT
BARGAINING COUNCIL                                    Second

Respondent
COMMISSIONER M.N.S
DAWSON NO
Third

Respondent
Heard: 17 July 2019
Delivered:
29 January 2020
Summary:
Rule 11 Application to dismiss the Review Application due to lack of
prosecution – Section 158 (1) (c) to make the
arbitration award
and order of court – whether the missing parts of the record is
material to the determination of the review
– delay in the
reconstruction of the record – whether all reasonable steps
were undertaken to reconstruct the record
– Rule 11 and s158
(1) (c) applications dismissed – matter remitted to the Second
Respondent to be heard
de novo
by another Commissioner.
JUDGMENT
MOGANE,
AJ
Introduction
[1]
This is an opposed application to dismiss a
review application due to lack of prosecution and an application to
make an arbitration
award an order of this Court.
Background
facts
[2]
Kgomotso Moreki (the employee), a member of
the First Respondent, IMATU, was employed by the Applicant as an
Administrative Officer:
Credit Control.The First Respondent was
dismissed on the 05th of June 2015 after being found guilty in a
disciplinary inquiry on
charges of fraud and corruption.
[3]
Aggrieved thereby he she referred a dispute
concerning the fairness of the dismissal to the Second Respondent.
The dispute was arbitrated
upon by the Third Respondent, who on 1
August 2016 issued an award which reinstated the First Respondent
with back pay without
loss of benefits from the date of the
dismissal.
[4]
There is a dispute between the First
Respondent and the Applicant in terms of when the award came to the
attention of the Applicant.
The Applicant asserts that the award came
to its attention on 10 August 2016, whereas the First Respondent
states that the award
was served on the parties on 4 August 2016.
[5]
The
Applicant, aggrieved by the award launched an application in terms of
section 145 of The Labour Relations Act
[1]
(LRA) on 22 September 2016.
[6]
The Second Respondent was, according to the
notice of motion, supposed to file the record of the arbitration
proceedings with the
Registrar of this Court on 6 October 2016.
Instead, such a record was only filed by the Second Respondent on 4
November 2016.
[7]
On 7 November 2016, the Applicant uplifted
the record and same was sent to the transcribers for transcription.
[8]
The Applicant perused the transcribed
record on 28 November 2016 and discovered that the record was
incomplete in that the testimony
of the Applicant’s witness, Ms
Francina Mokoto was missing. Furthermore, the transcribed record did
not capture the proceedings
on 13, 20 and 26 May 2016.
[9]
On the very same 28 November 2016, the
Applicant wrote to the Second Respondent advising the Second
Respondent that the recordings
of the arbitration are incomplete. On
29 November 2016, the Second Respondent advised the Applicant that a
reconstruction of the
evidence is recommended.
[10]
On or about 15 December 2016, 13 January
2017 and 24 February 2017, the Applicant wrote letters to the Second
Respondent requesting
a date upon which the reconstruction exercise
could take place. Such letters did not yield any results from the
Second Respondent
which then necessitated the Applicant to address a
letter on 2 March 2017 to the Second Respondent’s Head Office.
[11]
On 14 March 2017, the Second Respondent
sent a letter to the Applicant informing the Applicant that the Third
Respondent was on
sick leave and that the Second Respondent is not
certain when the Third Respondent could be available for
reconstruction purposes.
[12]
On 15 March 2017, The Applicant sent a
letter to the Second Respondent requesting a date for reconstruction,
and a further letter
was also sent on the 7 April 2017.
[13]
On 24 April 2017, the Second Respondent
issued a notice of set down for the reconstruction. In terms of the
notice of set down,
the reconstruction was set to take place on 18
May 2017.
[14]
The reconstruction failed to take place on
18 May 2017 due to the fact that the Applicant’s representative
did not have his
handwritten notes with him, and further, that the
third respondent had misplaced the file. The matter was thus
postponed to 6 June
2017
[15]
The reconstruction did not proceed on 6
June 2017 as the First Respondent’s representative (IMATU)
failed to attend to the
Second Respondent for purposes of
reconstruction and had without consent from the Applicant, requested
a postponement.
[16]
On 9 June 2017, the Applicant wrote a
letter to the Second Respondent, requesting that the reconstruction
be enrolled on an urgent
basis, and another follow up letter was sent
on 6 July 2017 by the Applicant.
[17]
The Second respondent then set the matter
down for reconstruction on 28 July 2017. Such reconstruction however
failed to take place
as the Third Respondent was sick and therefore
could not attend the reconstruction. It is on the very same day that
the Applicant
further wrote to the Second Respondent, requesting
another date for the reconstruction.
[18]
Several follow up letters were again made
the Applicant and on 23 August, 20 and 21 September 2017. Moreover,
on 21 September 2017,
the Applicant was advised telephonically that
the Third Respondent is still incapacitated and the Second Respondent
would respond
by no later than 26 September 2017
[19]
On 2 October 2017, the Applicant wrote
another letter to the Second Respondent expressing prejudice suffered
due to the fact that
the reconstruction is taking long to occur. This
was preceded by a telephone conversation between the Applicant and
the Second
Respondent on the same day.
[20]
Seeing that the Second Respondent failed to
respond to the Applicant’s letter dated 2 October 2017,
the Applicant then
on 23 October 2017 wrote a letter to the First
Respondent requesting that due to the challenges encountered in
reconstructing the
record, the Applicant suggested that the matter be
remitted to the Second Respondent for a hearing
de
novo
by another Commissioner other than
the Third Respondent, alternatively, that the First Respondent
consent to a request to be made
to the Judge President for a
directive on the further conduct as envisaged in paragraph 11.2.4 of
the Practice Manual.
[21]
On 20 December 2017, a directive was issued
by Barnes AJ which stated that the parties were to convene a meeting
to effect the reconstruction
of the missing portions of the record on
or before 22 January 2018. Furthermore, the Applicant was to report
to the Court, on affidavit
on or before 31 January 2018, on the
outcome of the aforesaid meeting.
[22]
The reconstruction as per the directive
failed to take place due to the fact that the Third Respondent was no
longer a Commissioner
at the Second Respondent. The Applicant
reported same to the Court as per the Court’s directive.
[23]
Subsequent thereto, on 23 January 2018, the
Applicant wrote to the First Respondent requesting the First
Respondent’s consent
that the matter be remitted to the Second
Respondent for a hearing
de novo
due to the fact that the Third Respondent is no longer a Commissioner
at the Second Respondent.
[24]
On 19 March 2018, a further directive was
issued by Judge Nkutha-Nkontwana calling upon the First Respondent to
file an answering
affidavit to the Applicant’s report in terms
of the directive by Acting Judge Barnes by no later than 25 March
2018.
[25]
On 27 March 2018, the First Respondent
filed its answering affidavit as per the directive, stating that the
matter should not be
remitted to the Second Respondent for a hearing
de novo
due
to the fact that the Applicant failed to arrange a meeting with the
First Respondent to discuss the reconstruction of the record
and that
there was no need to involve the Second Respondent and the Third
Respondent in the process of reconstruction.
[26]
On the very same day the First Respondent
filed a Rule 11 application for the dismissal of the Applicant’s
Review Application
and a s158 (1) (c) application, calling upon the
Court to make the arbitration award an order of Court.
Evaluation
[27]
It
is appropriate, in cases such as this one, where there are missing
parts of the record and there has been a delay in the reconstruction

of the record to enquire firstly, whether the missing part of the
record is material and secondly, whether the Applicant took all
the
reasonable steps to get the missing part or to reconstruct the
record
[2]
.
[28]
The Applicant perused the transcribed
record on 28 November 2016 and upon perusal discovered that the
record was incomplete. The
testimony of the Applicant’s witness
being Ms Francina Mokoto was missing. Over and above that, the
transcribed record failed
to capture the arbitration proceedings of
13, 20 and 26 May 2016.
[29]
The
Applicant, in its answering affidavit to this dismissal application
stated that the testimony of Francina Mokoto adduced on
18 April 2016
as well as the proceedings of 13, 20 and 26 May 2016 do not form part
of the record
[3]
. There seems to
be no dispute to this assertion by the First Respondent
[4]
.
[30]
The Applicant in its Heads of Argument has
stated that the evidence of Mokoto and the further evidence adduced
on 13, 20 and 26
May 2016 are vital for its Review Application.
[31]
The conclusion I therefore reach is that
the first step of the inquiry has been met i.e. the missing part of
the record is material.
[32]
That then, in my view enables me to
consider whether the Applicant took reasonable steps to reconstruct
the record. The background
facts mentioned
supra
in the main capture the steps that have been undertaken by the
Applicant in an attempt to reconstruct the record and I shall not

repeat them here.
[33]
While the attempts at reconstruction and
the reasons for the failures therefore are common cause, the First
Respondent’s complaints
with regards to the steps undertaken by
the Applicant can be summarised as follows:
33.1
The applicant in requesting a reconstruction exercise in their
various letters did not give the Second Respondent
any deadlines
within which the reconstruction process was to be finalised.
33.2
From 29 July to 22 August 2017, the Applicant took no action to
pursue its Review Application.
33.3
The Applicant should have attempted to do a reconstruction exercise
with the First Respondent without involving
the Second Respondent.
The Second Respondent should only be approached in the event that the
Applicant and the First Respondent
failed to reconstruct on their
own.
[34]
I do not agree with the First Respondent’s
assertion that the Applicant failed to take appropriate and diligent
steps to speedily
prosecute the Review Application. The Applicant,
upon realising that the transcribed record was incomplete,
immediately wrote to
the Second Respondent advising them of same. The
letter written on 28 November 2016 by the Applicant to the Second
Respondent solicited
a response from the Second Respondent. The
Second Respondent, upon receipt of that letter, responded to the
Applicant and suggested
a reconstruction of the record and that the
Second Respondent will revert with dates for such purposes.
[35]
Subsequent letters written by the Applicant
to the Second Respondent between December 2016 and March 2017, still
stressed to the
Second Respondent to provide dates for the
reconstruction. The Second Respondent at some stage indicated that
the Third Respondent
was on sick leave. Between May 2017 and June
2017, a reconstruction date was issued and for various reasons, not
of the fault of
the Applicant, the reconstruction failed to take
place. In the period of July 2017, a notice of set down again was
issued, and
the reconstruction failed to take place due to the ill
health of the Third Respondent. Therefore, the assertion by the First
Respondent
that from July 2017 to August 2017 the Applicant did
nothing is unfounded. The facts point otherwise.
[36]
In the period of October 2017, the Second
Respondent failed to respond to the Applicant’s letters. This
then prompted the
Applicant to write to the First Respondent
requesting consent to remit the matter to the Second Respondent for a
hearing
de novo
.
It is thus worth mentioning that this letter was never responded to.
[37]
I don’t share the same sentiments by
the First Respondent that they never responded to this letter because
it was too little
too late. At all material times, when the Applicant
wrote letters to the Second Respondent about reconstruction, the
First Respondent
was copied in those letters. The First Responded was
therefore aware of the steps undertaken by the Applicant.
[38]
In
my view, if the First Respondent had issues in the way the Applicant
was going about this reconstruction exercise, then the First

Respondent should have made the Applicant aware of such. The First
Respondent failed to do so. In
Toyota
SA Motors (Pty) Ltd v CCMA and Others
[5]
,
criticisms levelled against Toyota for failing to prosecute the
review timeously was, amongst others that for some period of time

Toyota had left the Respondent in the dark about the status of the
record and did not yield the Respondents request for a meeting
with a
view to reconstruct the records.
[39]
It
is thus opportunistic in my view, for the First Respondent to want to
have the Review Application dismissed when the First Respondent

failed to respond to the Applicant’s letters seeking consent
for remittal due to the difficulty
[6]
in reconstructing the record
[7]
.
Furthermore, a directive was issued on 20 December 2017, directing
the parties with regards to the reconstruction. Whilst the
Applicant
made attempts of reconstruction, the First Respondent did nothing.
The criticism by the First Respondent that the Applicant
should have
scheduled a meeting with it instead of going back to the Second
Respondent is without merit. The manner in which a
reconstruction
ought to be done was properly explained by the Labour Appeal Court in
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA
and Others
[8]
as follows:
“
A
reconstruction of a record (or part thereof) is usually undertaken in
the following way. The tribunal (in this case the commissioner)
and
the representatives (in this case Ms Reddy for the employee and Mr
Mbelengwa for the employer) come together, bringing their
extant
notes and such other documentation as may be relevant. They then
endeavour to the best of their ability and recollection
to
reconstruct as full and accurate a record of the proceedings as the
circumstances allow. This is then placed before the relevant
court
with such reservations as the participants may wish to note. Whether
the product of their endeavours is adequate for the
purpose of the
appeal or review is for the court hearing same to decide, after
listening to argument in the event of dispute as
to accuracy or
completeness.”
[40]
It therefore follows that for the Applicant
to comply with the issued directive, the Applicant had to still
engage the Second Respondent
with the view of having the First
Respondent to be involved in the reconstruction exercise.
[41]
The
normal practice in this Court is that before one party (the
Applicant) could invoke a Rule 11 dismissal application, at least
the
other party (the Respondent) should be placed on terms first. It is
only after those terms have not been complied with, that
a Rule 11
dismissal application can be instituted. This version is supported by
the judgement in
Karan
t/a Karan Beef Feedlot and Another v Randall
[9]
.
[42]
Further,
in
MEC,
Department of Sport, Recreation, Arts and Culture v GPSSBC and
Others
[10]
, the Labour Court held that a Rule 11 application should not be
granted
unless
the dilatory party had been placed on terms
,
and when appropriate, after any further steps as may have been
available to the aggrieved party to bring the matter to finality,

have been taken. This means that the conduct of the aggrieved party
is to be considered as well.
[43]
At no stage did the First Respondent place
the Applicant on terms before instituting this dismissal application.
In my view, the
Applicant did what was necessary under the
circumstances to have the reconstruction of the record ensue. At some
stage, the Third
Respondent was sick, and eventually, the Third
Respondent was no longer a commissioner at the Second Respondent.
[44]
This inability to reconstruct cannot
squarely lay at the door of the Applicant. The Applicant did what it
could under the circumstances
to have the reconstruction done, but it
proved to be impossible. There can be no reconstruction in the
absence of the Commissioner
and the Commissioner’s notes. The
Applicant took all reasonable steps to reconstruct.
[45]
Faced
with this, what then should happen when parties are unable to
reconstruct. In
Balasana
v The Motor Bargaining Council and Others
[11]
the Court held that failure to provide a complete record, which is
due to the fault of the Commissioner not properly recording
the
proceedings, and where the reconstruction is futile, the matter
should be remitted to the CCMA for a fresh hearing. In this
matter,
just like in the
Balasana
judgment, reconstruction is futile. The matter should therefore be
remitted to the Second Respondent for a hearing
de
novo.
[46]
Furthermore, should the Court not remit, I
am of the view that the Applicant would suffer more prejudice as
opposed to the First
Respondent. The Applicant would have its review
application dismissed without being adjudicated on the merits. The
First Respondent
would not be prejudiced as it would have a chance to
have its merits adjudicated upon in due course.
[47]
The First Respondent, in its Heads of
Argument and in Court argued that the Review Application is deemed to
be withdrawn as the
record has not been filed timeously. In my view,
this argument by the First Respondent is non- suited.
[48]
The argument advanced by the First
Responded is relevant in situations where a record is eventually
available, but it has been filed
out of time. In this case, there is
no record to file. Even if there was a record to file, but it was
filed late, it is trite that
in that case, the Court would strike the
matter off the roll and give the defaulting party an opportunity to
apply for condonation
for the late filing of the record and to apply
for the reinstatement of the Review Application.
[49]
The
Court in
Ralo
v Transnet Port Terminals and Others
[12]
held the plain and unambiguous wording of clause 11.2.3 of the
Practice Manual is to the effect that the Applicant must be regarded

as having withdrawn the Review Application, but that the Applicant
could apply to reinstate the Review Application together with
an
application for condonation for the late filing of the record. The
Court then in
Ralo
proceeded to strike the matter from the roll. As I have already
mentioned, this finds no application in this matter.
[50]
I now turn to the s158 (1) (c) application.
Having established that the matter should be remitted to the Second
Respondent to be
heard by another Commissioner other than the Third
Respondent, it consequently follows that the s158 (1) (c) application
fails.
[51]
On the issue of costs, it is my view that
law and fairness dictates that no costs order should be made.
[52]
In the premises the following order is
made:
Order
1.
The application to dismiss the Review
Application is dismissed.
2.
The application to make the arbitration
award an order of Court in terms of s158 (1) (c) is dismissed.
3.
The matter is remitted to the Second
Respondent to be heard
de novo
by
another Commissioner other than the Third Respondent.
______________
C. Mogane
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Sibuyi SC,
Instructed
by:

Phungo Incorporated.
For
the First Respondent:  IMATU Union Official
[1]
No
66 of 1995, as amended.
[2]
Francis
Baard District Municipality v Rex N.O. and others
[2016]
10 BLLR 1009 (LAC).
[3]
Applicants
answering affidavit at paragraph 19.
[4]
First
Respondent’s replying affidavit at paragraph 19.
[5]
(2016)
37 ILJ 313 (CC).
[6]
Applicant’s
letter dated 23
October
2017.
[7]
Applicant’s
letter dated 23 January 2018
[8]
(2003)
24 ILJ 931 (LAC).
[9]
(2009)
30 ILJ 2937 (LC).
[10]
(2015)
36 ILJ 2893 (LC).
[11]
(2011)
32 ILJ 297 (LC).
[12]
(2015)
36 ILJ 2653 (LC).