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[2020] ZALCJHB 39
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Camm Trans CC v Maila NO and Others; In re: Association of Mineworkers and Construction Union obo Malandvula and Others v Maila NO and Others (JR975/17) [2020] ZALCJHB 39 (14 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 975/17
In
the matter between:
CAMM
TRANS
CC
Applicant
and
COMMISSIONER DAVIDS
MAILA N.O
First
respondent
THE COMMISSION FOR
CONCILATION
MEDIATION AND
ARBITRATION
Second Respondent
ASSOCIATION OF
MINEWORKERS AND
CONSTRUCTION UNION obo
S MALANDVULA
AND 13
OTHERS
Third
Respondent
In re: the Rule 11
application between:
ASSOCIATION OF
MINEWORKERS AND
CONSTRUCTION UNION obo
S MALANDVULA
AND 13
OTHERS
Applicant
and
COMMISSIONER DAVIDS
MAILA N.O
First
respondent
THE COMMISSION FOR
CONCILATION
MEDIATION AND
ARBITRATION
Second Respondent
CAMM
TRANS CC
Third Respondent
Heard:
15 October 2019
Delivered:
14 February 2020
JUDGMENT
LALLIE.
J
[1]
The applicant the
Association of Mineworkers and
Construction Union (AMCU) obo S Malandvula and 13 Others ( the
applicant),
launched his application, seeking, in terms of
Rule 11 of the Labour Court Rules (the Rules), an order dismissing a
review application
which had been brought by the third respondent
owing to the inordinate delay in its prosecution. The third
respondent, CAMM Trans
CC (the third respondent), filed an answering
affidavit late and failed to seek condonation for the delay. Based on
the omission,
the applicant argued that the application should be
heard on an unopposed basis. In an attempt to circumvent the Rule 11
application
the third respondent filed a Rule 12 application in which
it effectively sought leave to pursue its review application.
[2]
The Rule 11 application will be considered first as this matter was
set down for its
hearing. In determining whether the Rule 11
application should be adjudicated on an unopposed basis. I have taken
into account
that the application was filed on 13 June 2019. The
third respondent filed its answering affidavit on 9 October 2019. On
14 October
2019 the applicant filed a notice in terms of clause 11.
4. 2 of the Practice Manual of the Labour Courts of South Africa
[1]
(the Practice Manual), objecting to the late filing of the answering
affidavit. Notwithstanding receipt of the notice, the third
respondent failed to seek condonation of the late filing of its
answering affidavit. Absent condonation the third respondent’s
answering affidavit is not properly before Court.
[3]
The Rule 12 application which the third respondent filed
simultaneously with the answering
affidavit did not cure its failure
to seek condonation for the late filing of the answering affidavit.
It is an impermissible attempt
to circumvent the Rule 11 application
and have the review application adjudicated. As the answering
affidavit is not properly before
Court, the Rule 11 application will
be determined on an unopposed basis. All the arguments that were
raised on behalf of the third
respondent could not alter the correct
legal position.
[4]
It is now trite that an inordinate delay in the prosecution of an
application for
review justifies its dismissal. The applicant traced
the third respondent’s delay from the institution of the review
application.
The individual applicants were dismissed for misconduct
by the third respondent in May 2016. On 5 April 2017 the first
respondent
issued an arbitration award in which the dismissal was
found to be unfair and the third respondent was ordered to reinstate
the
individual applicants. The third respondent filed its review
application on 23 May 2017, later than the statutory six-week period
within which it should have been filed. A day later the applicant
filed its notice of intention to defend the review application.
[5]
The third respondent further delayed in filing the record of the
arbitration proceedings
because it was advised of its availability by
the Registrar on 30 May 2017. The full record should, in terms of
clause 11.2.2 of
the Practice Manual, have been filed within 60 days
from the 30 May 2017. The third respondent in breach of the clause
filed an
incomplete record on 28 July 2017 and a further portion on
31 August 2017.
[6]
The applicant’s version is supported by the third respondent’s
failure
to comply with the provisions of Rule 7A (8) by filing its
notice in terms of Rule 7A (8) (b) on 10 October 2018, outside the 10
day period prescribed in the Rule. The 10 day period was triggered on
30 May 2017 when the Registrar advised the third respondent
of the
availability of the record. The applicant reminded the third
respondent of its obligation to seek condonation of the late
filing
of the Rule 7A (8) (b) notice but the necessary application was never
filed.
[7]
On 23 October 2017, the applicant had the arbitration award
certificate by the second
respondent in terms of section 143 of the
Labour Relations Act
[2]
(the
LRA). On 30 October 2017 it informed the third respondent of its
intention to file the application at hand. All the delays
which the
applicant based its case on are unjustified.
[8]
The applicant’s case is galvanised by the order (the order)
which was granted
by this Court on 26 October 2018. The relevant
paragraphs of the order are the following:
“
3. The respondent
is to provide security for the review application in the amount of R
3 000 000.00 (Three Million Rand)
within 15 days.
4. The Respondent is
given10 days to file an affidavit to uplift the review application
from the archives”.
[9]
The third respondent failed to comply with the order. Clause 11.2.7
of the Practice
Manual provides that a review application is regarded
as having lapsed unless good cause is shown why it should be removed
from
the archives. In the order, the third respondent was given an
opportunity to show good cause within 10 days from 26 October 2018.
As a results of the third respondent’s non-compliance with the
order its review application is still archived.
[10]
The LRA expressly provides for expeditious resolution of disputes.
The Rules provide for procedures
of meeting that objective and the
Practice Manual provides rules of practice which assist litigants in
the Labour Court to comply
with both the LRA and the Rules. Clause
11.2.7 of the Practice Manual provides that review applications are
by their nature urgent
applications. The whole of clause 11 of the
Practice Manual provides procedures which facilitate the expeditious
finalisation of
review application. It also provides for procedures
which need to be followed when parties, particularly the applicants,
encounter
difficulties which threaten to slow down the progress of
review applications.
[11]
The third respondent failed to make use of the procedures even when
its failure to do so was
brought to its attention by the applicant.
It also failed to comply with a court order directing it to comply
with provisions of
the Practice Manual. The third respondent failed
to comply with all the time frames which governed its review
application. The
arbitration award which was the subject of their
review application was issued on 5 April 2017, the review application
was filed
on 23 May 2017 and in October 2018 the review had been
archived. This Rule 11 was filed on 13 June 2019 more than 2 years
after
the review application had been launched. The individual
applicants continue to suffer the prejudice of being prevented from
exercising
their right to reinstatement in terms of a valid
arbitration award. The prejudice is expressed as follows in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
arbitration and Others
[3]
, one of the authorities the applicant sought to rely on:
“
Time
periods in the context of labour disputes are generally essential to
bring about timely resolution of the disputes. The
dispute
resolution dispensation of the old Labour Relations Act was
uncertain, costly, inefficient and ineffective.
The new Labour
Relations Act (LRA) introduced a new approach to the adjudication of
labour disputes. This alternative process
was intended to bring
about the expeditious resolution of labour disputes which, by their
nature, require speedy resolution.
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
an employer who may
have to reinstate workers after many years”.
[12]
The applicant submitted that the third respondent
has no prospects of success in the review application
which it
pursues just to delay the individual applicants’ reinstatement.
The third respondent’s lack of diligence in
prosecuting the
review application supports the applicant’s submissions. The
applicant has established valid grounds for
the dismissal of the
review application owing to the third respondent’s inordinate
delay in its prosecution.
[13]
The applicant sought a costs order against the third respondent. I
could find no reason, both
in law and fairness for not granting the
order. The applicant should not be out of pocket as a result of the
third respondent’s
failure to prosecute its review diligently.
[14]
In the premises, the following order is made:
Order
1. The
review application under case number JR 975/17 is dismissed.
2. The
third respondent is ordered to pay the costs of this application.
________________________________
Z Lallie
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant: Advocate S Collet
Instructed
by: Larry
Dave Incorporated
For
the Respondent:Advocate P W. Makhambeni
Instructed
by: SMS
Attorneys
[1]
April
2013.
[2]
Act 66 of 1995 as amended.
[3]
[2016] 3 BLLR 217(CC)
at para 1.