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[2025] ZALCJHB 530
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Murambo Towing Services (Pty) Ltd and Another v CCMA and Others (JR1562/21) [2025] ZALCJHB 530 (26 May 2025)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No:
JR1562/21
In
the matter between:
MURAMBO
TOWING SERVICES (PTY) LTD
Applicant
HUMPHRY
MATHADA
2
nd
Applicant
(To be joined)
and
CCMA
First Respondent
COMMISSIONER
VALENCIA NOMASONTO SIBEKO N.0.
Second Respondent
NGOAKO
EVERISTOS LETSOALO
Third Respondent
Heard:
13 May 2025
Summary:
Application in terms of Rule 11 brought by the Third Respondent
seeking an order dismissing the Applicant's review application
instituted on 30 July 2021 for
failure
to expeditiously execute the review application. Application granted.
JUDGMENT
MARQUES,AJ
Introduction
[1]
This is an application in terms of Rule 11
[1]
brought by the Third Respondent seeing an order in the following
terms:
1.1
Dismissing the Applicant's review
application instituted on 30 July 2021 for
failure
to
expeditiously
execute
review
application.
1.2
The
arbitration award date 26 March 2021 issued by Commissioner Valencia
Noma Sibeko in the matter between the Third Respondent
and
the Applicant under the CCMA case number GATW15658/20 (the
arbitration award) to be made an order of court in terms of Section
158(1)(c) of the Labour Relations Acts
[2]
(LRA)
1.3
Humphry Mathada be joined as the 2
nd
Applicant
in the above matter.
1.4
The 1
st
and/or 2
nd
Applicant
[to be joined] to pay the Third Respondent the amount of R36 900.00
as per paragraph 56 of the arbitration award,
plus interest at
10.5% per annum, from 22 April 2021 to
date of
payment.
1.5
The 1
st
and/or
2
nd
Applicant
[to be joined] further to paragraph 1.4
above, be
ordered
to pay
the
Applicant's
salary
of R7 000.00
per
month
and
benefits from 21 April 2021 to date of compliance.
1.6
The Applicant is to pay the costs of this
application.
Back
g
round
[2]
The
Third
Respondent was employed by
the
Applicant from
13
September 2020 as
a
Tow
Truck
Driver.
It
appears
from
the
arbitration
award
that the
Third
Respondent was earning a monthly salary of
R7 000.00 per month.
[3]
The Applicant is in the business of towing
cars. The Third Respondent was dismissed on 10 November 2020 by the
Applicant.
[4]
Following the Third Respondent's dismissal, he
referred a dispute to the First Respondent.
[5]
The arbitration was set down before
the
Second
Respondent and was scheduled for a con/arb
process
on 6 January 2021. Failing a
successful resolution of the matter, the matter was adjourned (at the
Applicant's request) to
8
January
2021
for arbitration,
where
it
was
part-heard
and
thereafter rescheduled
for finalization on 16 March 2021. The
Applicant (and his representative) did not attend the arbitration
proceedings on 16 March
2021.
[6]
The award was rendered by the Second
Respondent
on
26 March 2021, in the Second Respondent found that:
6.1
The Third
Respondent
had
been
dismissed
by
the Applicant.
6.2
The dismissal of the Third Respondent by the Applicant was
procedurally and substantively unfair. The Applicant was ordered
to
reinstate the Third Respondent and pay him backpay of R35 000.00 and
short payment of R1 900.00 into the same bank account used
to pay
salaries.
6.3
The Applicant was ordered to pay the
aforesaid amount by no later than 21 April 2021,
failing
which
the Third Respondent
may
elect to invoke the provisions of Section 143 to enforce the award.
6.4
The Applicant must report for duty on 21
April 2021 at 06:00 am.
[7]
Following
receipt
of the arbitration award issued by the
Second
Respondent,
the
Applicant
filed
a
rescission
application
to
rescind
the
arbitration to rescind the arbitration
award issued
on
26
March
2021.
The
essence
of
this
application
was
◄
the Applicant sought the rescission
of the arbitration award as it was.issued in
the
absence of the Applicant,
and
the Applicant
was
not given an
opportunity
to' testify at the first seating of the
arbitration proceedings. The rescission ruling was issued by the
Second Respondent
on
20 June,2021 under case number: GATW15658/20 in
terms of
which
the rescission ruling was refused on
the
basis that the arbitration took place in
the presence
of the Applicant (the
Applicant only absented
itself
on the last day of the arbitration
process),
the
arbitration award was not issued erroneously and the Applicant
not address the issues in section 144 of
the LRA (the LRA).
[8]
On 30 July 2021, the Applicant filed an
application to review and set aside the arbitration
award
and
the rescission ruling,
both
issued
by
the
Second
Respondent under GATW15658/20 in terms of the LRA.
[9]
The Thid Respondent’s application
to
dismiss
the
Applicant's
review application and make the arbitration award an order of the
court was
filed
on 13 April 2022
[10]
The Third Respondent's application to
dismiss the review application is premised
on
the fact that since the Applicant instituted its review application
on 30 July
2021,
it has
not
taken
any
further
steps
and/or
made
any
efforts
to finalise the review application,
which is highly prejudicial to him.
[11]
The Applicant opposes the relief sought by
the Third Respondent but did not appear in Court. I have considered
the Court file and
the notice of set down dispatched to the parties
notifying them of the set down date. It is clear from the Court file
that the
Applicant was emailed a copy of the notice of set down on 26
November 2024. Accordingly, I have considered the opposing
submissions
filed by the Applicant. Further, in the opposing
affidavit, the Applicant raises two
points
in limine,
namely:
11.1
Non-compliance with the rules of
court. In terms of the rules of this court, the Third Respondent is
obliged to appoint a firm of
attorneys
within
a 15 (fifteen) kilometre radius of the court. The Applicant alleges
that the Third Respondent
appointed
a Pretoria-based attorney who is located
more than 50 kilometres from the court.
11.2
Lack
of
service.
The
Third
Respondent
approached the above Honourable Court seeking joinder of the Second
Applicant but failed to personally serve the Second
Applicant,
alternatively, send an email purporting to serve the Second Applicant
without consent.
11.3
The Applicant prays that the points alone.
Points
in Limine
[12]
The Labour Court Rules,
unlike the High Court Rules, do not require
that a party appoint a law firm within a 15-kilometre radius of the
Court. Accordingly,
this
point in limine
has no merit.
[13]
The opposing
affidavit
to
this application
has
been deposed
to
by Mr Humphry Mathada, the party whom the Third Respondent
seeks to join as the Second Application in
these proceedings.
Mr
Mathada disputes that he should be joined to these proceedings as he
was not personally served with a copy of the application.
The Rules
of the Labour Court do not require personal service of the
application, and this court should not overly burden itself
with
technicalities. It is evident that Mr Mathada received the Third
Respondent's application as he is the deponent to the opposing
affidavit. As Mr Mathada had the opportunity to consider the Third
Respondent's application and respond to the allegations, there
can
be
no
prejudice
to
the
Applicant
or
Mr
Mathada.
Therefore,
the
second
point in limine
similarly
has no merit.
Consideration
of the Third Respondent's Application
[14]
It is common cause that:
14.1
The Applicant's review application was
served and filed on 30 July 2021. The arbitration award was issued on
26 March 2021
a
nd
thereafter
, a
rescission ruling was issued on 20 June 2021.
14.2
The notice of intention to oppose the
Applicant’s review application was filed by the Third
Respondent on 14 0ctober 2021/
14.3
The CCMA Notice of Compliante in terms of
Rule
7A(3) was delivered to the parties on
or about 8 Oct
o
ber
2021
.
Evaluation
[15]
It
is evident from the doqum
ts
before me that the Applicant has taken absolutely no steps
further
the review application since the CCMA filed the Notice of
Compliance
in terms
or about 8 October 2021.
[16]
Furthermore,if one has regard to the review
application, it was filed more than 6 (six) weeks after the date that
the arbitration
award was issued. Accordingly, the review
application,
insofar
as
the
award is
concerned, was
filed approximately 3 (three) months late.
The Applicant has not filed a condonation application or given any
explanation
for
this delay.
[17]
Item
11.2.2 of the Labour Court Practice Manual
[3]
provides that:
'For
the purpose of Rule 7A(6), records must be filed within 60 days of
the date on which the applicant is
advised
by the registrar that the record
has been
received.'
[18]
Item 11.2.3 of the Labour Court Practice
Manual provides that:
'If
the
applicant
fails
to
file
a
record
within
the
prescribed
period,
the applicant
will be deemed to have withdrawn the application, unless the
applicant has during that period requested the respondent's
consent
for an extension of time and consent has been given. If consent is
refused
the
applicant
may,
on
notice
of
motion
supported by the
affidavit, apply to the
Judge
President
in
chambers
for
an
extension of time. The application must be
accompanied by proof of service on all other parties, and answering
and replying affidavits
may
be
filled, within the time limits prescribed by Rule 7. The Judge
President wil
then
allocatethe file to a judge for a ruling,
to be made in chambers , on an
y
extension
of time that the respondent should be afforded to file the record’
[19]
Item 11.2.4 of the Labour Court
Practice
Manual
provides that:
'If
the record of the proceedings under review has been lost, or if the
recording of the proceedings is
of
such poor quality to the extent 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 to the effect that
the
relevant parts of the record be reconstructed
.
'
[20]
Item 11.2.7 of the Labour Court Practice Manual provides that:
'A
review application is by its nature an urgent application. An
applicant in a review application is therefore required to ensure
that all the necessary papers in the application are filed within
twelve (12) months of the date of the launch of the application
(excluding Heads of Arguments) and the registrar is informed in
writing that the application is
ready for
allocation 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.'
[21]
The Applicant's review application was
filed on 30 July 2021. The Applicant has failed to comply with the
aforesaid items of the
Practice Manual, and it has taken absolutely
no steps to prosecute the review application diligently,
expeditiously or in accordance with the Rules of
this Court.
[22]
The status of the record, which is not in
dispute and which is
reflected
in the CCMA Notice of compliance in terms of Rule
7A(3), comprises one (1) audio disc of the arbitration proceedings,
file contents and a bundle of documents.
This does not appear to be
a
very cumbersome
or
volumi
n
ous
record. However, the record of proceedings has to date not been filed
b
y the Applicant.
[23]
The Applicant submits in its opposing
affidavit to the Third Respondent's application that the Third
Respondent's application is misguided, that
he is not suffering any prejudice as the amount
claimed and awarded was awarded erroneously
and maliciously by the
Second Respondent.
The Applicant
further provides
that it has had
difficulties
with
the
transcriptions, but
that
does
not entitle the , Third Respondent to the
sitting aside order.
The
Applicant further contends that it will apply for condonation as soon
as the problems with the transcription have been resolved.
The
Applicant further submitted in support of this application that the
Third Respondent has nothing to show this court that the
delay, is
intentional.
[24]
the submissions made by the Applicant are wholly unacceptable. The
Applicant
does
not
place
anything
before
this
Court
to
illustrate that
it
has
taken
any proactive steps to pursue its review application nor has it taken
this Court into its confidence to explain exactly what
technical
difficulties it could have had with the transcriptions which has
caused such a significant and excessive delay in the
prosecution of
its review application. From the documentation before me, it appears
that the Applicant has simply not taken any
steps to pursue its
review application in terms of the Rules of the above Honourable
Court, nor has it complied with any of the
provisions referred to
hereinabove set out in the Practice Manual. It appears that the
Applicant has simply sat on its hands and
failed to prosecute its
review application diligently or appropriately, thus causing the
Third Respondent substantial prejudice.
Furthermore, the Second Applicant offers no apology for the flagrant
disregard of this Court's
Rules and the
non-compliance therewith.
[25]
In
Toyota
SA
Motors
(Pty)
Ltd
v
Commission
for
Conciliation
Arbitration
&
others
[4]
(Toyota)
the
majority found that:
‘
Time
periods in the context of labour dis
p
utes
are generally essential to bring about timely resolution of the
disputes.
The
dispute-resolution dispensation of the old Labour
Relations Act was uncertain, costly, inefficient
and
ineffective.
T
h
e
new
Labour
Relations
Act
(LRA) introduced
a
new
approach
to
the adjudication
of
labour
disputes which, by their nature, require
speedy resolution of labour disputes undermines the primary object of
the LRA’
[26]
Furthermore, in
Toyota,
it
was
highlighted
that
the
Labour
Relations
Act,
case law
and the
practice
manual
make
it
clear
that
expedition resolution
of
disputes is a fundamental requirement of fairness
and of the Act itself.
[27]
It
is thus
quite
correct, as was pointed out by the Third
Respondent in
his
heads of
argument, that the aim of the LRA
is to ensure the speedy and expeditious resolution
of
disputes,
to
facilitate
the
efficient
administration of
justice.
The
undue delay in prosecuting the review application is inexcusable and
has, as a result, prejudiced the Third Respondent.
Conclusion
[28]
It is for these reasons that the Third
Respondent's application must succeed in the following respects:
28.1
The Third Respondent's application applying
to this Court to dismiss the Applicant's
review
application
instituted
on
30 July 2021 for failure to expeditiously execute the review
application should succeed.
[29]
As a result of the aforesaid finding made in terms of the review
application, it therefore follows that the arbitration
award dated 26
March 2021 issued by the Second Respondent under case number
GATW15658/20 should be made an order of court in terms
of Section
158(1)(c) of the LRA
[30]
The
Third
Respondent
has
sought
that Mr Mathada be joined to these proceedings. The principles
applicabl
e
to
applications for leave to join further parties to an action were
considered in
Marais
and Others v Pongola Sugar Milling
Co
Ltd
and Others
[5]
.
It
was then held that even in those cases where the court has a
discretion whether to allow joinder of a party, it must at least
be
shown that the party sought to
be
joined is a necessary party in the sense that he is directly and
substantially interested in the issues raised, and that his
rights
may
be
affected
by
the
judgment
of
the
court.
The
Third
Respondent
has,
however not made
an
y
cogent submissions to support the relief that he seeks in this
regard. Therefore, I cannot join Mr Mathada, in his personal
capacity,
as a party to these proceedings.
Costs
[31]
This Court has a discretion in terms of Section 162 of the LRA to
order costs in accordance with the requirements of
the law and
fairness. In the present instance, I do not see why the Applicant
should not pay the costs of the Third Respondent's
application due to
its flagrant disregard of the Rules of Court and its clear failure to
prosecute the review application timeously
and in
accordance
11
with the Rules of this Court.
[32]
Clearly, the undue delay in processing the
review application is prejudicial to the Third Respondent. The delay
in the prosecution
of the review application is excessive and cannot
be condoned
.
[33]
In the premises, I make the following
order:
Order
1.
The Applicant's review application filed
under case under JR1562/21
is
dismissed.
2.
The
arbitration
award
dated
26
March
2021 issued by the Second Respondent, Commissioner Valencia Nomasonto
Sibeko, under case number GATW15658/20, is d
ec
lared
an Order of Court in terms of Section 158(1)(c) of the Labour
Relations Act, Act 66 of 1995.
3.
The
Applicant
is
directed, to pay
the
Third
Respondent
in
accordance with the arbitration award, together
with interest thereon at the prescribed rate of interest prevailing
at 21 April
2021, calculated from 21 April 2021 to the date of
payment
4.
The
Applicants to
pay the costs of this application.
B.
Marques
Acting
Judge of the Labour Court of South Africa
[1]
GN
1665 of 1996: Rules for the Conduct of Proceedings in the Labour
Court, repealed with effect from July 2024.
[2]
Act
66 of 1995, as amended.
[3]
Practice
Manual of the Labour Court of South Africa, effective 2 April 2013,
repealed with effect from July 2024.
[4]
(2016)
37 ILJ 313 (CC);
[2016] 3 BLLR 217
(CC) at para 1.
[5]
1961
(2) SA 698
(N).