THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 2105/24
In the matter between:
KALAMAKI TRADING (PTY) LTD T/A
SOUL SOUVLAKI BEDFORDVIEW Applicant
and
BARGAINING COUNCIL FOR THE RESTAURANT,
CATERING AND ALLIED TRADES First Respondent
PIETERSE, RG N.O. Second Respondent
Heard: 18 March 2025
Delivered: 03 June 2025
JUDGMENT
ERASMUS, AJ
Introduction
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[1] This matter concerns an application to compel the First and Second
Respondents to comply with r ule 37(2) of the Rules Regulating the Conduct of
Proceedings of the Labour Court1 (the Court rules ) by, amongst others , dispatching
the record of the proceedings under the auspices of the First Respondent to the
registrar of th is Court and to notify the parties that this has been done.
[2] The application is unopposed.
Background facts
[3] The applicant lodged an application to review and set aside an arbitration
award issued by the Second Respondent under the auspices of the First
Respondent . The review application was served on the First and Second
Respondents on 20 November 2024. [4] The review application called on the respondents to show cause why the
decision/proceedings in question should not be reviewed or set aside and to provide
the record of the proceedings and the reasons for the decision within 10 days of
delivery of the application.
[5] The respondents did not provide the record and/or reasons.
[6] The applicant addressed a letter to the First Respondent, the Bargaining
Council for the Restaurant, Catering a nd Allied Trades (BCRCAT), drawing their
attention to the refusal and/or failure to comply with the Court’s rules. The letter also noted with concern the delay being caused by the BCRCAT in prosecuting the
review application. [7] The letter furthermore called upon the BCRCAT to fully comply with their
obligations in terms of the Court rules within 10 days from the letter , failing which an
application would be lodged to compel them to comply. The BCRCAT was also
1 Published 3 May 2024 in GG 50608. Effective 17 July 2024.
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forewarned that the applicant will pursue a costs order against the BCRCAT in the
event of non- compliance.
The legal framework
[8] Review applications by their very nature are urgent. The Court rules set out
specific timeframes within which certain actions are to be taken and penalises an applicant if certain times frames are not met.
[9] Rule 37 deals with review applications and the relevant portions provides that:
“(1) …
(2) The notice of motion must:
(a) call upon the person or body to show cause why the decision or
proceedings should not be reviewed and corrected or set aside;
(b) call upon the person or body to dispatch to the registrar, within 10 days
after receipt of the notice of motion, the complete record of the proceedings sought to be reviewed, and to notify the parties that this has been done; and (c) …
(3) … (6)
(7) The person or body upon whom a notice of motion is served must
comply timeously with the direction in the notice of motion in terms of subrule
(2).
(8) If the person or body fails to comply with subrule (7), or fails within the
required period 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. ”
Analysis
[10] The applicant complied with Rule 37(2) in that it called on the respondent s in
its notice of motion to comply with the relevant rules.
[11] The respondents have failed to comply with this Court’s rules as referred to
above as at the date of hearing of this matter . The applicant is therefore entitled to
the relief as referred to in Rule 37(8).
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[12] The applicant also sought an amendment of a date in the notice of motion in
the review application.
[13] Prayer 1 in the notice of motion in the review application refers to 31 July
2023 as being the date on which the award was received by the applicant. This is
patently incorrect, as the award is dated 4 November 2024. The applicant moved for
an amendment of the date to 13 November 2024. The respondents did not oppose
such relief being sought and there is no reason not to grant such order.
Costs
[14] This brings us to the issue of costs.
[15] The respondent sought a costs order against the First Respondent on an
attorney and own client scale of the High Court.
[16] It is noted with disconcertment that the respondents did not comply with the
Court’s rules by providing the record within the requisite 10- days or asking for an
extension.
[17] To make matters worse, they also did not comply when a letter of demand
was served on them wherein they were warned that a costs order would be pursued against them, should they remain in default .
[18] As if that it not enough, they continued to remain in default after the
application to compel was served on them, which application asks for, and motivates for, a costs order on an attorney and own client scale.
[19] The non- compliance with the Court’s rules undermines the integrity of the
legal process . The respondents’ disdain with which they treat this Court’s rules, is a
cause for concern and is completely unacceptable. The Court must address this to
uphold the sanctity of its rules and ensure that future compliance is strictly adhered to. A costs order is therefore warranted.
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[20] In the premises, the following order is made:
Order
1. The first and second respondents are ordered to provide the record of
the proceedings under case number 2427/24 to the R egistrar of this Court in
compliance with Rule 37(7) read with Rule 37(2) of this Court and to notify the
parties that it has been done within 10 days of this order.
2. The applicant is granted leave to amend the date of receipt of the
arbitration award in its notice of motion to 13 November 2024.
3. The first respondent is to pay the costs of this application on a party
and party scale.
L. Erasmus
Acting Judge of the Labour Court of South Africa
Appearances :
For the Applicant : K Hlungwane of PS & Associates Attorneys