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[2020] ZALCJHB 196
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Sitoe v Commission for Conciliation, Mediation and Arbitration and Others (JR 306/15) [2020] ZALCJHB 196 (22 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
No: JR 306/15
CARLOS
VASCO SITOE
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
NEO MOLOI
N.O
Second
Respondent
MPONENG
MINE
Third Respondent
Enrolled:
6 May 2020
Delivered:
22 May 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date and time for
hand-down is deemed to be 09h45 on 22 May 2020.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to re-instate his
pending review application.
[2]
The Third Respondent (Respondent) opposed
the application.
[3]
The matter was enrolled for hearing on 6
May 2020. In accordance with the provisions of the ‘Urgent
directive in respect of
access to the Labour Court’ dated 28
April 2020, which is applicable with effect from 4 May 2020 until the
end of the July
2020 recess, the parties agreed that this matter be
disposed of without oral argument.
[4]
I have considered the papers filed as well
as the written heads of argument submitted.
The re-instatement
application:
[5]
The Applicant was
dismissed by the Respondent on 22 July 2014 and he referred an unfair
dismissal dispute to the First Respondent
on 19 September 2014. The
Applicant also applied for condonation for the late referral of his
unfair dismissal dispute. On 16 October
2014 the Second Respondent
(arbitrator) issued a ruling wherein he dismissed the Applicant’s
condonation application.
[6]
On 5 May 2015, the Applicant filed an
application to review and set aside the ruling of 16 October 2015.
[7]
On
3 May 2016, the Respondent filed an application in terms of the
provisions of Rule 11 of the Labour Court Rules to dismiss the
review
application, alternatively for an order to declare that the review
application had lapsed in terms of the provisions of
the Practice
Manual of the Labour Court
[1]
(the Practice Manual).
[8]
On 2 August 2016, this Court granted an
order as per the Respondent’s draft order, declaring that the
review application had
lapsed in terms of paragraph 11.2.3 of the
Practice Manual.
[9]
There is no bar,
either in the Rules of this Court or
the Practice Manual to
the filing
of an application seeking to have a review application reinstated.
This would obviously not be the case
where the Court has dismissed a
review application for the lack of prosecution
.
[10]
On 18 July 2018,
almost two years later, the Applicant filed an application to
reinstate his review application
.
The review application
[11]
Section
145(1)(a) of the Labour Relations Act
[2]
(LRA) provides that a review application should be brought within six
weeks of the date that the award was served on the applicant.
Section
145(1A) provides that the Labour Court may condone the late filing of
a review application on good cause shown. The same
period applies to
rulings reviewed in terms of section 158(1)(g) of the LRA.
[12]
The Applicant filed an application with
this Court to review and set aside the ruling of 16 October 2014 on 5
May 2015. The review
application was served on the Respondent by
facsimile on 30 July 2015.
[13]
In
Mbatha
v Lyster and Others
[3]
the
Labour Appeal Court (LAC) held that
the
provisions of sub-rule (1) of Rule 7A of the Labour Court Rules
provides that the applicant in a review application is obliged
to
'deliver a notice of motion to the person or body and to all other
affected parties'. It follows, reading Rule 7A together with
the
effect of the definition of 'deliver' in Rule 1 of the Labour Court
Rules, that an application is made within six weeks of
the
publication of the award only if it is delivered to all the
respondents and filed with the Registrar of the Labour Court within
such period.
[14]
Considering
the
dicta
in
Mbatha
[4]
,
the review application
in
casu
was
thus delivered on 30 July 2015.
[15]
It concerned me that the ruling which is
subject to review, is dated 16 October 2014 and that the application
to review and set
aside the ruling was only filed on 5 May 2015 and
served on the Respondent on 30 July 2015. It is evident that a period
of more
than nine months elapsed between the date of the condonation
ruling and the filing and serving of the review application.
[16]
It was not clear from the papers when the
ruling dated 16 October 2014 was served on the Applicant and as this
matter was adjudicated
without a hearing, I instructed my secretary
to contact the Applicant’s legal representatives and to request
them to obtain
an instruction from the Applicant as to whether he was
present when the condonation ruling was issued and if not, how and
when
the ruling came his attention.
[17]
This is extremely relevant as the question
whether the review application had been filed within the prescribed
six-week period,
is a fact or element which goes to establishing the
jurisdiction of this Court to adjudicate and hear the application.
[18]
In
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
[5]
this
Court has held that:
‘
Where
the non-compliance relates to a statutory provision, ie as set out in
an Act, then failure to comply with those provisions
goes to
jurisdiction. In such cases (for example where time-limits relate to
jurisdiction) an application must be made to court
to condone the
non-compliance. In circumstances where the time-limit is prescribed
by the
rules
,
this court would be prepared to entertain a matter in spite of the
fact that the pleadings were not filed within the prescribed
time-limits, as long as there is no objection thereto by the party
who stands in opposition to the party who has failed to comply
with
the time-limits prescribed by the rules of this court.’
[19]
The late filing of a review application
constitutes a failure to comply with a statutory provision and not a
time limit prescribed
by the rules.
[20]
The Applicant’s legal representatives
indeed obtained an instruction from the Applicant as follows:
‘
The
applicant instructs us as follows in response:
2.1.
On 16 October 2014, he attended the CCMA for his unfair dismissal
dispute. He had requested an interpreter
for the hearing, but none
was provided.
2.2.
As a result, he was told to sit in the waiting room and nothing
further was communicated to him that day.
2.3.
While he was present at the CCMA on 16 October 2014, he was not
present in the hearing room when the ruling
was issued, nor was a
copy of the ruling issued to him at the time.
2.4. He returned
to the CCMA on 17 November 2014, to follow up on the outcome of his
dismissal dispute. On the same day,
he became aware of the outcome of
his dispute for the first time when he was handed a copy of the
ruling.’
[21]
In view of the Applicant’s
instructions, I accept that he was handed a copy of the ruling he
seeks to review on 17 November
2014. The Applicant had to file his
review application within the prescribed period of six weeks, thus no
later than 29 December
2014. The Applicant’s review application
was evidently filed far outside the six-week period.
[22]
The failure to comply with the prescribed
period goes to the issue of jurisdiction. The late filing of the
review application constitutes
a failure to comply with a statutory
provision and the Applicant had to apply for condonation.
[23]
In casu,
there
is no application for condonation and more than five years after the
expiry of the prescribed period within which the review
application
had to be filed, the Applicant has not taken any step to apply for
condonation.
[24]
In
SA
Transport and Allied Workers Union v Tokiso Dispute Settlement and
Others
[6]
the LAC confirmed that where a party is out of time and has to take
the jurisdictional step of applying for condonation but failed
to do
so, a court cannot come to the party’s assistance. The LAC held
that in the absence of an application for condonation,
the court
cannot assist the party.
[25]
The same principle applies
in
casu
where the reality is that the
Applicant had to apply for condonation for his failure to comply with
a statutory time period and
he had failed to do so. It follows that
absent an application for condonation, this Court has no jurisdiction
and cannot come to
the Applicant’s assistance.
[26]
This Court cannot grant relief to
re-instate a review application that was filed late where there is no
application for condonation.
[27]
The Applicant’s application for
review has to fail for lack of jurisdiction.
[28]
I
am not inclined to postpone this matter in order to allow the
Applicant an opportunity to file a condonation application as this
matter relates to a dismissal that dates back to 2014, almost
six years ago. The Applicant’s litigation is fraught
with
delays and any postponement of this matter would undermine the
purpose of the LRA, namely the speedy resolution of labour
disputes.
In terms of the Practice Manual
[7]
a review application is regarded as an urgent application and in
terms of section 145(5) of the LRA, a party who brings an application
for review must apply for a date for the matter to be heard within
six months of delivery of the application. This is indicative
of the
fact that a review application needs to be prosecuted and finalised
without delay and with due observation of the ultimate
aim to resolve
labour disputes speedily. This application for review was filed in
2015 and in 2020 it is not one step closer to
finality. It is a
matter that was not prosecuted with the aim to resolve it speedily
and effectively.
[29]
In so far as costs are concerned, this
Court has a broad discretion in terms of section 162 of the LRA to
make orders for costs
according to the requirements of the law and
fairness. In my view the interests of justice will be best served by
making no order
as to costs.
[30]
In the premises I make the following order:
Order
1.
The application is dismissed for lack of
jurisdiction;
2.
There is no order as to costs.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Representatives:
For the
Applicant:
Ms Jessica Lawrence
of Lawyers for Human Rights
For
the Third Respondent: Henk Wissing Attorneys
APPEARANCES:
On behalf of the
Applicant:
Advocate P R Cronje
Instructed
by:
Van de Wall Incorporated Attorneys
On
behalf of the Third Respondent: Mr M Makhura of Cheadle Thompson &
Haysom Attorneys
[1]
April
2013.
[2]
Act
66 of 1995, as amended.
[3]
(2001)
22 ILJ 405 (LAC).
[4]
Ibid.
[5]
(2002)
23 ILJ 1282 (LC) at para 13.
[6]
(2015)
36 ILJ 1841 (LAC).
[7]
April
2013.