THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR22/2013
In the matter between:
UNILEVER FIELD SERVICES (A DIVISION OF Applicant
SMOLLAN GROUP LTD)
and
MEHLEKETO CONFIDENCE SHIBAMBU First Respondent
WILFRED (NOKO) NKGOENG N.O. Second Respondent
COMMISSION FOR CONCILIATION MEDIATION Third Respondent
AND ARBITRATION
Heard: 23 January 2025
Delivered: 12 February 2025
Summary: review application –– labour court has no jurisdiction to entertain
the application as main dispute archived in terms of P ractice Manual read with
Labour Court Rules – review application deemed withdrawn.
JUDGMENT
2
PHAKEDI , AJ
Introduction
[1] This is an application to review the arbitration award issued by the CCMA on
20 November 2012. The arbitrator had found the dismissal of the first respondent to
be substantively unfair. He directed the applicant to issue the first respondent with a
final written warning valid for six months from 4 December 2012 and ordered her
reinstatement with backpay.
[2] Unhappy with the award, t he applicant instructed its a ttorneys to file a review
application. The applicant contends that the provisions of the P ractice Manual of the
Labour Court1 are not applicable to this matter as the review application was filed on
9 January 2013, before 2 April 2013 when the Manual came into operation.
[3] On 31 January 2013, the CCMA despatched the record of arbitration
proceedings under case number GAJB22573/12.
Background
[4] Ms Lancaster , attorney for the applicant, was employed by MacRoberts
Attorneys when the review application was filed. She later joined Crafford Attorneys on 1 February 2013. On 14 and 28 February 2013, her offices attended Labour Court
but they could not uplift the record as it was not yet available . The record was only
available for uplifting on 19 March 2013. However, on 17 April 2013, she discovered
that the transcribed record only contained the evidence of one witness.
[5] On 11 November 2013, the applicant wrote to the Judge President in terms of
item 11.2.4 of the P ractice Manual seeking direction on the further conduct of the
1 Practice Manual of the Labour Court of South Africa, effective 2 April 2013 (repealed, effective 17
July 2024).
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review application. The applicant then filed a notice in terms of Rule 7A(8)(a) of the
Labour Court Rules2 together with a supplementary affidavit on 25 September 2014.
[6] The first respondent then applied to have the arbitration award made an order
of court and same was granted on 22 August 2017. However, t he order was
rescinded on 4 November 2020. The applicant filed a notice in terms of Rule 22B on 11 November 2020 requesting the matter to be set down on the unopposed motion roll. The applicant indexed and paginated the review application on 7 September
2021. The incomplete transcribed record and commissioner’s notes were then filed on 7 September 2021. [7] The applicant received a notice of set down indicating that the review
application w ould be heard on 31 May 2023. However, the matter did not proceed as
it was not on the roll. The matter was scheduled to proceed on 13 November 2024
and Turner AJ granted the applicant leave to file a supplementary affidavit explaining the delay. The affidavit was filed on 9 December 2024 and the matter was then placed before me for determination.
Application of the Practice Manual and its binding effect
[8] At the outset and as mentioned above, the applicant is of the view that the
provisions of the P ractice Manual dealing with the archiving of files are not applicable
in this matter because the review application was filed before the Manual came into operation. Item 1.1 of the Manual provides that:
‘… The manual aims to promote access to justice by all those whom the
Labour Court serves. It is also intended to promote consistency in practice and procedure, and to set guidelines on the standards of conduct expected of those who practise in the Labour Court. ’
[9] The applicant was at all material times aware that the provisions of the
Practice Manual were applicable to its review application particularly as it relied on
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
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item 11.2.43 when it wrote to the Judge President on 11 November 2013 seeking
direction on the further conduct of the review application.
[10] It is not clear as to why the applicant did not invoke the mechanisms provided
in the Rules of the Labour Court and the P ractice Manual to ensure that this matter
was finalis ed in line with the objects of the Labour Relations Act (LRA).4 Moreover,
the applicant did not invoke the provisions of then Rule 7A(3) which mandates the
third respondent to ensure that it files the record within ten days of receipt of the
notice of motion. In the event that the third respondent had failed to dispatch the
record, the applicant ought to have invoked the provisions of Rule 7A(4) which
provides that:
‘If the person or body fails to comply with the direction or fails to apply for an
extension of time to do so, any interested party may apply, on notice, for an
order compelling compliance with the direction.’
[11] A substantial amount of time lapsed from the date the applicant sought
directions from the Judge President without any pleadings being filed. The notice in
terms of Rule 7A(8)(a) was only filed on 25 September 2014. The applicant was
aware that a review application is an urgent application as envisaged in item 11.2.7 of the P ractice Manual but chose to ignore the provisions of the Manual. As a result
of the applicant’s failure to ensure that all the necessary papers in the review
application were filed within 12 months from 9 January 2013, the application was
archived and regarded as lapsed.
[12] Section 1(d) of the LRA) provides that one of the objects of the LRA is to
promote the effective resolution of labour disputes. The Labour Appeal Court (LAC)
in Samuels v Old Mutual Bank
5 (Samuels ) held that :
3 Item 11.2.4 reads :
‘If the record of the proceedings under review has been lost, or if the recording of the proceedings
is of such poor quality that the tapes are inaudible, the applicant may approach the Judge
President for a direction on the further conduct of the review application. The Judge President will
allocate the file to a judge for a direction, which may include the remission of the matter to the
person or body whose award or ruling is under review, or where practicable, a direction that the
relevant parts of the record be reconstructed. ’
4 Act 66 of 1995, as amended.
5 [2017] ZALAC 10; (2017) 38 ILJ 1790 (LAC) at paras 14.
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‘… [The] purpose of [the P ractice Manual] 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 standards of conduct expected of those who practise 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. ’
[13] This Court is bound by the above- mentioned authority that the provisions of
the Practice Manual are binding. Item 11.2.3 made it clear that an applicant in a
review application must file the record within the prescribed period, failing which, the
applicant w ould be deemed to have withdrawn its application. Item 11.2.7 stated that
the review application will be regarded as lapsed unless good cause is shown why the application should not be archived or reinstated due to the failure of the applicant
to prosecute the review application timeously .
Evaluation
[14] In Macsteel Trading Wadeville v Francois van der Merwe N.O and Others
6,
the LAC held that :
‘The Practice Manual came into effect during April 2013; midway through the
review application. It, therefore, applies to it. 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. The record in the review
application had been filed approximately 20 months after the launch of the
review application. And the review application was set down for hearing
almost six years from its launch. This means that by the date of set down of the review application, it had been archived and regarded as lapsed.’
6 (JA67/2016) [2018] ZALAC 50 at para 23
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[15] In Samuels7, the LAC held that:
‘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 r ules, 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 P ractice Manual remains intact, depending on the facts and
circumstances of a particular matter before the court.’
The legal position in this court has always been that the provisions of the Manual were binding on the l itigants since it came into operation. It is therefore incumbent on
an applicant in the review application to ensure that the matter is dealt with in line
with the prescripts and not to frustrate the object of the LRA.
[16] I am aware that the provisions of the P ractice Manual called for flexibility
8 and
were not intended to limit judicial discretion when it comes to the provisions of the
Manual.9 As such, even if I wanted to ensure that this matter is finally disposed of, I
am constrained from doing so due to the incomplete record of arbitration and the fact that the review application is deemed to be withdrawn. [17] It is not the applicant’s case that the arbitration award ought to be reviewed
and set aside on the ground of a failure to keep a proper record of arbitration
proceedings as this failure is a reviewable irregularity. In order for the court to have
the necessary jurisdiction to entertain the review application, the applicant must bring an application for reinstatement.
[18] Having concluded that the provisions of the Practice Manual are applicable in
this matter, I therefore conclude that the review application filed by the applicant has
been archived and regarded as lapsed.
7 Ibid at para 15.
8 Item 1.2 of the Practice Manual.
9 Item 2.1 of the Practice Manual.
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[19] The review application was not opposed, and as such, the issue of costs does
not arise.
[20] In the premises, t he following order is made:
Order
1. The review application filed by the applicant is deemed to have been
withdrawn .
2. There is no order as to costs.
G.C. Phakedi
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: S Lancaster
Instructed by: Lancaster Kungoane Attorneys
For the Respondent: No appearance