THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JA17/24
In the matter between:
THE SOUTH AFRICAN COMMERCIAL CATERING
AND ALLIED WORK ERS UNION (SACCAWU) Appellant
and
IRVIN PUTINI Respondent
Heard: 28 November 2024
Delivered: 30 January 2024
Coram: Van Niekerk, Nkutha- Nkontwana JJA et Mooki AJA
JUDGMENT
NKUTHA -NKONTWANA, JA
Introduction
[1] This is an appeal against the whole judgment and order of the Labour Court
on 21 July 2023. The appellant (SACCAWU) impugns, firstly, the Labour Court’s
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exercise of discretion to make the arbitration award an order of the court in terms of
section 158(1)(c) of the Labour Relations Act1 (LRA). Secondly, the appellant takes
issue with the Labour Court’s order which granted relief beyond what was awarded
in the arbitration award.
Background
[2] This litigation has a long and unfortunate history . The respondent ( Mr Putini )
was dismissed in 2010. He successfully challenged his dismissal at the CCMA. On
24 June 2011, the CCMA issued an arbitration award that ordered SACCAWU to
reinstate Mr Putini . Unhappy with the arbitration award, SACCAWU launched a
review application , which met its demise on 26 November 2015. Determined to
challenge the award, on 18 December 2015, S ACCAWU applied for leave to appeal
the judgment and order dismissing its review application.
[3] While awaiting the outcome of the application for leave to appeal, on 12
August 2016, Mr Putini applied for the award to be made an order of the court in
terms of section 158(1)(c). Mr Putini contends that , even though there was a pending
application for leave to appeal at the time, his action was prompted by the uncertainty on the prescription of arbitration awards , which was consequent to the
jurisprudence that emerged at that time.
[4] On 25 August 2017, SACCAWU’s application for leave to appeal was
dismissed with costs. Still not disheartened, SACCAWU successfully petitioned this
Court for leave to appeal . On 15 February 2018, t his Court issued an order granting
SACCAWU leave to appeal and direct ing that the appeal record be filed within 60
days. It is common cause that SACCAWU failed to file the record of appeal.
Consequently, the appeal lapsed on 17 May 2018.
[5] Since no further steps were taken by SACCAWU, on 3 October 2018, Mr
Putini, through his attorneys of record, caused a letter to be sent to SACCAWU’s
attorneys informing them that, given the fact that the appeal had lapsed, he would
1 Act 66 of 1995, as amended.
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proceed to enrol the section 158(1)(c) application. On 10 October 2018,
SACCAWU’s attorney s responded, intimating that the appeal was still being pursued
and that the appeal record would be filed once finalised and shall be accompanied
by a condonation application. Pertinently, SACC AWU, through its attorneys ,
requested that the enrolment of the section 158(1)(c) application be deferred. Mr
Putini acquiesced. Yet, SACCAWU failed to make good on the promise to prosecute
the appeal.
[6] With a clear indication that SACCAWU had abandoned the appeal which, in
any event, had lapsed, on 23 March 2019, Mr Putini ’s attorneys approached the
Registrar of the Labour Court, requesting that the section 158(1)(c) application be set down. The matter was accordingly set down for hearing on 10 February 2021
and served before the Labour Court, per Govender AJ.
[7] A strange turn of events then transpired. SACCAWU opposed the section
158(1)(c) application on the basis that it had been ousted by clause 16.1 of the
Labour Court Practice Manual
2 which states that “ … the Registrar will archive a file…
in the case of an application in terms of Rule 7 or R ule 7A, when a period of six
months has e lapsed without any steps taken by the applicant from the date of filing
of the application, or the date of the last process filed …”.
[8] To the extent that clause 16.3 of the Practice Manual provides that “ where a
file has been p laced in archives , it shall have the same consequences as to further
conduct b y any respondent party as to the matter having been dismissed”,
SACCAWU was insistent that the Labour Court had no jurisdiction to entertain the archived section 158(1)(c) application absent an application for reinstatement.
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[9] The Labour Court rejected SACCAWU’s contention that the section 158(1)(c)
application automatically acquired the status of being archived and deemed dismissed when a period of six months lapsed without Mr Putini taking further steps
after delivering the replying affidavit on 28 October 2016. Likewise, it rejected the
2 Practice Manual of the Labour Court of South Africa, effective 1 April 2013 (repealed, 17 July 2024).
3 Clause 16.2 of the Practice Manual provides that a party to a dispute in which a file has been
archived may apply, on an affidavit, for the retrieval of the file, on notice to all other parties to the
dispute.
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alternative contention that, even if the computation of the six months as referred to in
clause 16.1 commenced from 17 May 2018, when SACCAWU’s appeal was deemed
to be withdrawn, the further step taken by Mr Putini in requesting the enrolment of
the section 15 8(1)(c) application was undertaken when the six months period had
already lapsed.
[10] The Labour Court granted the following order:
‘1. The arbitration award dated 25th of June 2011, handed down by
Commissioner Nhlahla Mathe under the auspices of the Commission for
Conciliation, Mediation and Arbitration, under case number KNDB127/11 is
hereby made an order of this court;
2. The Respondent is ordered to comply with the arbitration award within
14 (fourteen) days of the issuing of this court or er, by reinstating the Applicant
with no loss of benefits retrospectively to the position of organiser on terms no less favourable than those governed by his employment prior to his dismissal. The reinstatement order shall apply retrospectively to 22
nd of December 2010
at the rate of R 8 782.82 per month.
3. The Respondent is to pay the Applicant the arrear salary, benefits and
annual salary increases as accrued to the Applicant from 22nd of December
2010, plus legal interest thereon from the date of the arbitration award up to date of final payment to allow the Applicant to resume duty and to pay the Applicant his monthly salary at the end of each month after the date of this court order...’
In this Court
[11] In this C ourt, SACCAWU persists with its contention that the Labour Court
erred in granting an order in terms of section 158(1)(c) when that application had
been automatically archived and deemed dismissed in terms of clause 16.1 of the
Practice Manual. To buttress this contention, Mr Itzkin, counsel for SAC CAWU,
referred us to the dictum in E Tradex (P ty) Ltd t/a Global Trade Solution v Finch and
Others
4 (E Tradex ) where this Court equally grappled with the concept of a case
4 [2022] ZALAC 106; (2022) 43 ILJ 2727 (LAC) at paras 9 - 10.
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being archiv ed, albeit in terms of clause 11.2.7 of the Practice Manual , and made the
following observations:
‘[9] The notion of a case being ‘archived’ was invented by the drafters of
the Practice Manual as a penalty for dilatoriness and to relieve the burden of
carrying dormant cases indefinitely. The consequence of a case being archived is serious. Upon archiving, in terms of clause 11.2.7, a matter is “…
regarded as lapsed, unless good cause is shown why the application should
not be archived or be removed from the archive” (own emphasis). To add to that provision, clause 16.3 states unequivocally that: “ Where a file has been
placed in the archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed”
(own emphasis added). Moreover, clause 16.2 is equally unequivocal: “ A party
to a dispute in which the file has been archived may submit an application on affidavit, for the retrieval of the file…” There can be no plausible doubt that
once the case is ‘archived’ it requires the intervention of the court to ‘un -
archive’ it. There is no room to read into these provisions a role for the registrar to ‘resuscitate’ the case.
[10] The use of the term ‘archived’ is peculiar to the Labour Court Practice
Manual. In the general civil courts, for example, the failure to prosecute an appeal timeously results in the appeal having lapsed. The effect of that is that
the case shall not be dealt with by a court unless an application to reinstate the appeal is made. It is, in our view, plain that the archiving of a Labour Court case was intended to have the identical effect; indeed, clause 16.3 goes even further, to equate the consequence of an archiving of a case to be understood to mean the application is ‘dismissed’, albeit that a procedure exists to reinstate the case on good cause shown. ’
[12] Mr Putini contends that SACCAWU’s reliance on E Tradex is misplaced given
the context on this matter. Mr Mgaga, from Mr Putini’s attorneys of record, submitted
that we should not be beguiled by the tactical stance pulled by SAC CAWU with the
hope of cashing in from its remiss conduct . SACCAWU created an impression that it
was seriously prosecuting the appeal even after it had already lapsed and Mr Putini
candidly granted it an indulgence. Therefore, SACCAW U’s contention that , from 18
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May 2018 to 23 March 2019, a period of six months lapsed without Mr Putini taking
any further steps to prosecute the section 158(1)(c) application is absur d. If it were to
be upheld, it would mean that the SACCAWU successfully set a trap for Mr Putini by
seeking an indulgence regarding the filing of its appeal record, conduct that is
contrary to the spirit of cooperation between litigants and the granting of an
indulgence to each other as promoted in the Practice Manual .
Discussion
[13] It is well- accepted that tardiness in the prosecution of labour disputes
undermines one of the primary objects of the LRA which is the expeditious resolution
of disputes .
5 Thus, as observed in E Tradex, the archiv ing of a case has serious
consequences. Yet, the present case is distinguishable. T he drafters of the Practice
Manual never envisioned a situation where its provisions would be used by parties
as a tactical ploy . Conversely, the provisions of the Practice M anual call for flexibility
in their application when that is necessary to promote their purpose .
[14] As a matter of practice, section 158(1)(c) applications are normally deferred
pending the final determination of the review application or appeal .
6 Thus, there were
no further steps that Mr Putini ought to have taken in the prosecution of section
158(1)(c) application up until 17 May 2018, when SACCAWU’s appeal lapsed. As
correctly submitted by Mr Magaga, SACCAWU was alive to that reality , hence it
sought indulgence to have the enrolment of the section 158 (1)(c) application
deferred further after its appeal had lapsed.
[15] The indulgence granted to SACCAWU in October 2018 to prosecute the
lapsed appeal was more than mere leniency . It was a noble pact between the parties
which informed the further steps taken in the prosecution of the section 158(1)(c)
application. Mr Putini could not have known that by seeking an indulgence,
SACCAWU was buying time to outwit him in the end. However , once it was clear that
5 See: Macsteel Trading Wadeville v Van der Merwe NO and others [2018] ZALAC 50; (2019) 40 ILJ
798 (LAC) at para 20.
6 See: Gauteng Department of Education v Saunders: In re Saunders v Gauteng Department of
Education and others [2015] ZALAC 39; [2015] 12 BLLR 1187 (LAC) at para s 31-32.
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SACCAWU was up to gimmicks, Mr Puti ni justly enrolled the section 158(1)(c)
application on 3 March 2019.
[16] The Labour Court aptly expressed its dismay at SACCAWU’s audacity to
obstinately seek that Mr Putini be punished for the dilatory conduct in prosecuting
the section 158(1)(c) application it had manoeuvred. Regrettably, SACCAWU is
apathetic about the delay it has occasioned in this case, hence it is propagating
further delaying tactics . No one remembers the thrill of South Africa hosting the
Soccer W orld Cup in 2010, the year Mr Putini was dismissed. Yet Mr Putini, a
vulnerable party, is yet to vindicate his constitutional right 15 years later . The Labour
Court cannot be faulted for exercising its discretion in a manner that promotes the expeditious resolution of labour disputes in terms of the LRA . The following
cautionary remarks by the Constitutional Court in Booi v Amathole District
Municipality and O thers
7 drive this point home:
‘[50] …Labour litigation, as envisaged by the LRA, is distinct fr om any other
civil litigation. This is made abundantly clear in the Preamble to the LRA, and
through the specialised system and institutions created by that Act . It has also
been affirmed by this Court recently. It follows that labour disputes must not
be perceived as ordinary civil disputes by the courts that adjudicate them. Our
law is clear: labour dispute resolution must be expedient, simple, accessible and cost -effective. It is with this in mind that the LRA carves out unique
litigious pathways for disputes that arise pertaining to employment relationships. …
[51] ... the intention behind this choice was to prevent labour dispute-
resolution procedures from becoming costly and time- consuming and,
thereby, inadvertently favouring the party that wields greater resources and power. It was a pragmatic decision that serves the ends of justice and protects the rights enshrined in s 23 of the Constitution. …’
[17] The second issue pertains to the Labour Court’s order which granted a relief
that is beyond what is provided for in the arbitration award. I do not have to say
much on this point as Mr Putini concedes that the ancillary relief was erroneously
7 [2021] ZACC 36; (2022) 43 ILJ 91 (CC) at paras 50 - 51.
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granted by the Labour Court after he had unequivocally abandoned it. Thus, the
parties agree that this part of the order stands to be set aside.
Conclusion
[18] The Labour Court exercised its discretion judicially in making the arbitration
award an order of the c ourt in terms of section 158(1)(c) , Accordingly, the appeal
falls to be partially upheld.
Costs
[19] In my view, the requirements of the law and fairness justify that SACC AWU be
ordered to pay the costs of this appeal. Its conduct deserves censure as labour
litigation is not a swindling game. Mr Putini's 15 years of wait ing means nothing to
SACCAWU , hence this meritless appeal. To the extent that the parties are ad idem
that paragraphs 2 and 3 of the of the Labour Court’s order were erroneously granted,
a variation order could have been sought without saddling this Court with this appeal.
[20] The following order is made:
Order
1. The appeal is partially upheld and paragraphs 2 and 3 of the Labour
Court’s order are set aside and substituted with an order dismissing the relief sought therein.
2. SACCAWU shall pay the costs of the appeal.
Nkutha- Nkontwana JA
Van Niekerk JA et Mooki AJA concur.
Appearances :
For the appellant : Adv Riaz Itzkin
Instructed by : Dockrat Inc. Attorneys
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For the respondent : Mr Bongani Mgaga of Garlicke & Bousfield Attorneys