IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D13/2021
Not Reportable
In the matter between:
SUPERCARE SERVICES GROUP (PTY) LTD Applicant
and
BHEKANI NXUMALO First Respondent
COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION Second Respondent
COMMISSIONER SCELO VICTUS MKHIZE Third Respondent
Heard: 12 June 2024
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time for handing-down is deemed 1 0h00 on 2 7 March 2025
JUDGMENT
ALLEN -YAMAN J
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Introduction
[1] The applicant initiated a n application in which it sought to review and set
aside a ruling by the third respondent in terms of which he refused to rescind an
award previously granted by default in favour of the first respondent . It failed ,
however, to deliver the record within the time period permitted in terms of clause
11.2. 3 of the Practice Manual with the result that it was deemed to have withdrawn
its application. Additionally, a period in excess of twelve months elapsed without all
the papers in the review application having been filed, with the result that clause 11.2.7 also became operative.
[2] This led to the applicant having initiated the present application in which it
sought orders reviving its review application and condoning the late delivery of the
record, the granting of which relief was opposed by the first respondent.
Background
[3] On 16 February 2018 a default award was granted in favour of the first
respondent pursuant to the arbitration of his dispute which had taken place on 12
February 2018. The award provided,
‘8. The dismissal of the Applicant constitutes a substantively unfair
dismissal.
9. The Respondent, Supercare Services Group (Pty) Ltd, is ordered to
reinstate the Applicant, Bhekani John Nxulamo, in its employ on terms and conditions no less favourable to him than those that governed the employment relationship immediately prior to his dismissal, and to pay his arrear salary in the amount of R14 000.00 (fourteen thousand rand), less any
deductions authorized by law, calculated in paragraph 7 above, within fourteen days of having been advised of this award.
10. The reinstatement in paragraph 9 is to operate with retrospective effect
from 1 November 2017.
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11. The applicant is to tender his services to the employer within 7 days of
being notified of this award.’
[4] Having alleged that it became aware of the default award on 5 April 2018, the
applicant applied for the rescission thereof on 20 April 2018. The first respondent
opposed such application, dealt with by t he third respondent on the basis of the
parties’ respective affidavits together with the first respondent’s oral submissions , the
applicant not having attended the hearing. On 16 May 2018 he issued a ruling in
terms of which the applicant’s application for the rescission of the default award was refused.
[5] Approximately two and a half years later, on 20 January 2021, the applicant
initiated its review application. In view of the delay in question, its application was
accompanied by a condonation application in which it explained that it had only become aware of the rescission ruling on 13 August 2020.
[6] On 17 March 2021 the second respondent delivered one compact disc
containing a mechanical recording and a bundle of documents to this court under cover of a Notice in terms of R7A(3). A lthough the court file contains a Notice in
terms of R7A(5) issued on 18 March 2021 nothing in the court file evinced the transmission of such notice to the applicant. On the applicant’s own version it
nonetheless became aware of the availability of the record which had been made
available by the second respondent on 19 March 2021. Upon its subsequent
consideration of the mechanical recording which had been provided, it became
apparent to the applicant’s attorney that that which had been furnished was wholly unrelated to the arbitration proceedings between the applicant and the first respondent.
[7] This led the applicant to having made a number of enquiries with the second
respondent concerning the provision of the correct recording. The first of such
enquiries was an email transmitted to the second respondent on 6 April 2021. After
an exchange of correspondence which concluded on 4 May 2021, a recording relating to the correct arbitration proceedings was obtained and delivered to this
court. A Notice in terms of R7A(5) was duly issued on 11 May 2021 in terms of which
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the applicant was advised that one compact disc containing a mechanical recording
had been received from the second respondent in terms of R7A(3) .
[8] The applicant made arrangements for the transcription of such recording
which transcription was completed on 21 June 2021. It subsequently transpired that
the recording was that of the default arbitration proceedings itself, rather than the
recording of the rescission application hearing. The applicant did not deem the
transcription of those proceedings relevant for the purposes of its review application.
[9] Approximately one year later on 19 May 2022, not then having delivered any
record at all, the applicant delivered its Notice in terms of R7A(8)(b) in which it
evinced its intention to stand by its Notice of Motion and founding affidavit.
Notwithstanding that the applicant had not delivered the record prior to having
delivered its Notice in terms of R7A(8)(b), the first respondent delivered his
answering affidavit. The applicant subsequently delivered its replying affidavit.
[10] When the applicant’s review application came before this court on 8 February
2023 this court drew the parties’ attention to the fact that no record had ever been delivered. In the circumstances of the application then having been deemed to have
been withdrawn and to have lapsed in terms of clauses 11.2.3 and 11.2.7 of the Practice Manual respectively, the application was struck from the roll.
[11] Some five mo nths later, on 4 July 2023, the applicant initiated its revival
application. Albeit that the applicant indicated in its application that the record would
be delivered contemporaneously with its application for the reinstatment of its review application, it took the applicant a further six weeks to do so when, on 24 August 2023 it delivered its Notice in terms of R7A(6) under cover of which both the
documentary portion of the record which had been made available to it in March
2021, as well as the transcript of the arbitration proceedings which had been completed in June 2021 were delivered.
Analysis
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[12] As a point of departure the applicant suggested that the time period for the
delivery of the record had not yet commenced, given that no Notice in terms of
R7A(5) had been issued by this court. This proposition was unsustainable.
[13] Although it was not evident that the first of such notices dated 18 March 2021
had been transmitted to the applicant, this was not true of the second, dated 11 May
2021. On the applicant’s own version, the second respondent’s ‘notice of further
filing’ was ‘followed by a Rule 7A(5) Notice on 11 May 2021’ . Moreover, the copy of
such notice contained in the court file evince d proof of complete transmission thereof
to the applicant’s attorney’s telefax number on 13 May 2021.
[14] This being the case, the applicant was notified by this court that the record
which was subsequently relied upon by it was available by 13 May 2021 and the time period prescribed for the delivery thereof commenced, at the latest, on that date.
Concomitantly the latest date on which the applicant had timeously to deliver the
record was on 6 August 2021. As this was not done, the provisions of clause 11.2.3
of the Practice Manual became operative.
[15] Additionally, having instituted the review application on 20 January 2021, all
the documents necessary for the prosecution of its review were not delivered within
a period of twelve months. Distinct from the issues relating to the record in the
review proceedings, the applicant’s replying affidavit was only delivered on 22 June
2022. The provisions of clause 11.2.7 of the Practice Manual accordingly took effect
on 19 January 2021.
[16] In the circumstances, it is clear that there was indeed a need on the part of
the applicant to have initiated its reinstatement application. It is trite that such an
application is akin to an application for condonation, and that the usual factors relevant to such an application are apposite.
[17] The delivery of the record has been determined to have been required to have
been effected by not later than 6 August 2021. Although the applicant did not itself
calculate the extent of the delay in the delivery thereof, in view of this having
ultimately taken place on 24 August 2023, the extent of the delay was a little more than two years. Undoubtedly, the period of delay is excessive.
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[18] It is difficult to discern from the reasons provided by the applicant the actual
cause for the delay, save that it may be inferred that the applicant appears to have formed the view that the delivery of any record was wholly unnecessary.
[19] Having experienced the difficulties explained above in relation to obtaining a
transcript of the hearing of the rescission application, and having been furnished with the mechanical recording of only the arbitration proceedings , it determined that such
transcript was unnecessary for the purposes of its review. As that transcript was
made available to it on 21 June 2021, the failure on its part then to have delivered the documentary portion of the record was wholly unexplained.
[20] The only mention made by the applicant in its founding affidavit of the
documentary portion of the record was with reference to that portion of the record which the second respondent had made available at the outset,
‘A proper consideration of the Applicant’s Application for Review against the
aforementioned Notice will reveal that from the aforementioned list, the Rescission Ruling dated 16 May 2018; Default Award dated 16 February 2018; and Rescission Application dated 10 April 2018 had already been included as annexures to it.’
[21] Although not expressly articulated, this court p resumes that the applicant
intended to infer that by virtue of it having already annexed certain of the documents which formed part of the record to its founding affidavit in its review application, it was of the view that to deliver the self -same documents as a part of the record would
have constituted unnecessary repetition. Had the documents which were annexed to
its founding affidavit in the review application constituted an exact duplication of the
documentary portion of the record its presumed belief, however erroneous, may have constituted an understandable reason for its failure. This was not, however, the
case.
[22] The documents annexed to the applicant’s founding affidavit included two
documents which were not part of the record: a statement which was attributed to
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the first respondent , and the record of the disciplinary enquiry. The arbitration award
was one issued in default of any appearance on behalf of the applicant and
consequently in the absence of any evidence having been introduced on its behalf .
The founding affidavit in the rescission application included neither document as an
annexure thereto. Accordingly, not only were documents included as annexures to
the founding affidavit in the applicant’s review application which were not part of the record, but a document furnished by the second respondent as a part of the record which was crucial to the determination of the applicant’s review application was not
annexed thereto. This was the affidavit delivered by the first respondent in opposition
to the applicant’s rescission application, termed his ‘replication affidavit’ . Noteworthy
is the fact that the applicant in its application for condonation for the late delivery of its review application had alleged that it had been the sourcing of the outstanding
documentation relating to the rescission application, in particular ‘ the opposing
affidavit to the rescission application’ which had contributed to the delay in having
initiated its review application.
[23] In the circumstances, if the applicant was of the view that the documents
annexed to its founding affidavit sufficed to have constituted the record, and there
had accordingly been no need to deliver the record provided to it by the second respondent, this view would have been both unreasonable and misplaced.
[24] The issue of the failure on the part of the applicant to have delivered the
record was drawn to the applicant’s attention 8 February 2023 on which date the review application was struck from the roll, the order having expressly dealt with the reasons therefor. Notwithstanding, it took the applicant a further six and a half
months to do so, the delay in respect of which was wholly unexplained.
[25] The inadequacy of the applicant’s explanation concerning its failure to have
delivered the record timeously is relevant also to its failure to have ensured that all the necessary papers were filed within a period of twelve months from the date on which the application had been launched, on 20 January 2021, in terms of clause 11.2.7 of the Practice Manual.
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[26] That portion of the record which the applicant eventually delivered was
available to it by 19 March 2021. Whatever issues arose concerning the mechanical
recordings, the applicant ultimately resolved that this was unnecessary for the
prosecution of its review application, evinced by the delivery of its Notice in terms of
R7A(8)(b) on 20 May 2022. A period of more than one year had by then elapsed
from the date on which it initiated its review application to the delivery of that notice.
Save for the explanation provided concerning the attempts made by it to obtain the
relevant mechanical recordings at the outset , which attempts terminated on 21 June
2021, wholly unexplained was the cause of t he further delay in the delivery of its
Notice in terms of R7A(8)(b), effected almost a year after the transcript which the
applicant ultimately deemed to have been unnecessary had been provided to it.
[27] In its reinstatement application, the applicant was required to set forth facts
which, if established in due course, would demonstrate that it had some prospects of success in its review application. In amplification of its assertion that it had excellent
prospects of success, the applicant dealt only with the acts of misconduct which the
first respondent was alleged to have committed and which had resulted in his
dismissal, which was not the issue which had been required to be addressed. As the
applicant’s review application concerned the third respondent’s ruling refusing rescission of the default award and was accompanied by an application for
condonation, the applicant was required to deal with its prospects of success in its
condonation application together with the basi s upon which it asserted the rescission
ruling fell to be reviewed and set aside. Neither of these issues were addressed at
all.
[28] It was the applicant’s further assertion that,
‘… it would be grossly unjust in these circumstances to have to reinstate and
compensate a former employee who on his own version conceded that he had misappropriated client’s property and received remuneration, therefore.’
[29] Its allega tion that the first respondent had, by his own admission, been guilty
of misconduct was predicated on the statement attributed to the first respondent annexed to its founding affidavit in the review application. Its subsequent denial of
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the first respondent’s assertion that no such evidence had been tendered at the
arbitration was self -evidently incorrect, given that a default award had been issued.
The first respondent, on the other hand, asserted that the delay was prejudicial to him, having been wholly inimical to the expeditious resolution of labour disputes.
[30] The applicant’s expressed concerns relating to the prejudice it alleged it would
suffer in the event of the refusal of the relief ought, as a matter of direct correlation, to have been demonstrable by reference to evidence of the applicant having treated the dispute as having been of some importance. This was not, however, objectively
borne out by the manner in which it dealt with the first respondent’s dispute and
subsequently prosecuted its review application:
• Having applied for the rescission of the default award on 20 April 2018,
it alleged in its application for condonation for the late delivery of its review
application that it became aware of the rescission ruling on 13 August 2020. If
this is correct, then wholly unexplained in that application were the steps, if any, which had been taken by it in the intervening period in which the
outcome of its rescission application was awaited ; a period in excess of two
years .
• Having become aware of the outcome of its rescission application, a
further period of some five months elapsed before it initiated its review application.
• The record upon which it ultimately relied was made available to it on
19 March 2021, but in the absence of delivery thereof, it took the applicant until 20 May 2022 to deliver its Notice in terms of R7A(8)(b).
• The particularity of the applicant’s various omissions, as well as the
need on its part to deliver a record and to initiate a reinstatement application was made known to i t on 8 February 2023, yet such an application was not
initiated until 4 July 2023, and the record was not delivered until 24 August 2023.
[31] It was incumbent upon the applicant to demonstrate that the interests of
justice would be served by the exercise of this court’s discretion in favour of reinstating its review application and granting it condonation for the late delivery of
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the record. Not only did it fail to do so, but it is evident that its actions, both
historically and in the prosecution of its review, were not those of a diligent litigant.
The delay in the delivery of the record was excessive and largely inexplicable, whilst
the review application as a whole was beset with long periods of unexplained
inactivity. The applicant failed to address its prospects of success in either its
condonation or its review applications. Whatever prejudice may be sustained by the
applicant as a result of the refusal on the part of this court to reinstate the review application is, in the circumstances of the matter, insufficient a reason to grant the applicant the relief sought by it. The application will accordingly be dismissed.
Costs
[32] The first respondent requested that the applicant be ordered to pay his costs.
As he, as an unemployed individual, was obliged to incur legal costs in opposing the
application, this court can conceive of no reason why he ought not to be entitled to
recover such expenditure.
Order
1. The application to revive the review application under D13/2021 is
dismissed.
2. The applicant is ordered to pay the first respondent’s costs of
opposition, the scale, where applicable, to be Scale B.
K Allen -Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr J Schabort, MacGregor Erasmus Attorneys Inc
First Respondent:
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Mr M Nonyongo, M P Nonyongo Attorneys