IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D 264/99
In the matter between:
W MBATHA Applicant
and
R LYSTER N.O. First Respondent
INDEPENDENT MEDIATION SERVICES OF S.A. Second Respondent
DURBAN METRO COUNCIL Third Respondent
JUDGMENT
BASSON, J
[1] This is an application for the review of an arbitration award issued under the auspices of the
Independent Mediation Services of South Africa (“IMSSA”) and conducted in terms of the Arbitration
Act, 42 of 1965 (“the Arbitration Act”).
[2] In terms of section 157(3) of the Labour Relations Act, 66 of 1995 (“the LRA”) any reference to
a Court in the Arbitration Act, must be interpreted as referring to the Labour Court when an arbitration
is conducted under that Act, in respect of any dispute that may be referred to arbitration in terms of
the LRA.
[3] It was conceded eventually by the legal representative for the applicant that this application should
have been brought in terms of section 33 of the Arbitration Act and not in terms of section 145 of the
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LRA, as it was originally indicated in terms of the notice of motion, especially in view of these
provisions contained in section 157(3) of the LRA.
[4] It also has to be noted at the outset that the provisions of section 33 of the Arbitration Act, to a
large extent, mirror the provisions of section 145 of the LRA. Both section 33 as well as section 145
clearly state that a review of an arbitration award must be brought within a specified period of
six weeks after the publication thereof.
[5] This is in keeping with the general principle that the result of arbitration should lead to finality and that
an arbitration should be an expeditious process, as it is also set out in terms of section 1(d)(iv) of the
LRA, that is, it is the purpose of the LRA to promote the effective resolution of labour disputes.
[6] It was thus common cause that the dispute which was before the arbitrator (the first respondent)
under the auspices of IMSSA (the second respondent) was a dispute as is described in terms of
section 157(3) of the LRA ( supra), that is, it was an unfair dismissal dispute.
[7] In the present matter the arbitration award was published on 25 February 1999 and three weeks later
on 17 March 1999 the application for review was filed with the Labour Court.
[8] However, the application for review was only served on the third respondent by hand on 21 April
1999, some eight weeks after 25 February 1999.
[9] I quote from section 33(1) and section 33(2) of the Arbitration Act, dealing with the setting aside
of an arbitration award on review:
"(1) Where
a)any member of an arbitration tribunal has misconducted himself in relation to
his duties as arbitrator or umpire; or
b)an arbitration tribunal has committed any gross irregularity in the conduct
of the arbitration proceedings or has exceeded its powers; or
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c)an award has been improperly obtained,
the court may, on the application of any party to the reference after due
notice to the other party or parties, make an order setting the award
aside.
(2) An application pursuant to this section shall be made within six weeks
after the publication of the award to the parties ...” (emphasis
supplied).
[10] It was argued on behalf of the applicant that the application in the
present matter was made within the required six weeks period when the
application was filed with the Labour Court on 17 March 1999.
[11] However, the respondents' legal representative argued that the application
was only made when it was brought on notice to the third respondent. The
application was served on the third respondent on 21 April 1999, and that
is, of course, outside the six weeks prescription period contained in
section 33(2) of the Arbitration Act ( supra).
[12] In this regard, I was referred to the wording of section 33(1) and (2) of
the Arbitration Act ( supra), that is, that the Court may on the
application of a party, after due notice to the other party or parties,
make an order setting the award aside. It was argued that it was only
after it was served that such application was made “on notice to” the
other party.
[13] Applicants approaching the Labour Court in terms of the above quoted
provisions of section 31(1) and (2) of the Arbitration Act (read
together with the above quoted provisions of section 157(3) of the LRA)
must comply in bringing applications to this Court with the requirements
of Rule 7 of the Rules of the Labour Court, especially with the provisions
of Rule 7(1) and Rule 7(2).
of Rule 7(1) and Rule 7(2).
[14] The provisions of Rule 7(1) and Rule 7(2) are applicable and I quote:
"(1) An application must be brought on notice to all persons who have an
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interest in the application.
(2) The notice of application must substantially comply with form 4 and must
be signed by the party bringing the application. The application must be
delivered and must contain the following information ..." (emphasis
supplied).
[15] Of crucial importance here is also the definition of “deliver” as
contained in Rule 1 of the Rules of the Labour Court, where "deliver"
is defined to mean:
"serve on other parties and file with the Registrar" (emphasis supplied).
[16] In my view it is clear that both the provisions of section 33 of the
Arbitration Act as well as the provisions of Rule 7(1) require that an
application must be brought on notice to the other parties to the
application.
[17] In my view, the application in casu was not brought or made “on notice to
all persons who have an interest in the application” unless it was served
on the respondents in casu , including the third respondent. This is made
abundantly clear by rule 7(2) which states that the application must be
“delivered”, and delivered meaning "filed and served " (in terms of Rule 1
quoted above).
[18] In other words, an application is inherently defective if it is not
brought on notice, as is required in terms of both the provisions of
section 33 of the Arbitration Act, as well as the requirements of rule
7(1) and (2) of the Rules of the Labour Court. In order to be brought on
notice it must clearly be served on the other parties as required in terms
of the Rules. And, of course, it must be filed with the Registrar.
[19] If the application is not duly filed with the Registrar and is merely
served, such an application is inherently defective. The same
principle has to apply where an application is merely filed but not served
principle has to apply where an application is merely filed but not served
on the other parties. An application is for the same reason inherently
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defective as it is not “delivered” as is required in terms of the Rules.
Furthermore, it is clear that such application is not brought “on notice”
as is required in terms of the provisions of section 33(1) of the
Arbitration Act and, more importantly, Rule 7(1) of the Rules of this
Court.
[20] The logic behind these rules and statutory provisions, it must be
reiterated, is to bring finality to and to expedite arbitration
proceedings. Therefore, the legislature in its wisdom has decided to
introduce a prescriptive period of six weeks within which the application
for a review of an arbitration award must be brought or made (two words
which I accept to be synonyms).
[21] As an aside, and because this was addressed during argument, the question
is whether the Labour Court on good cause shown may condone any delay
outside of the six weeks period prescribed by section 33(2) of the
Arbitration Act and section 145(1) of the LRA, especially because these
statutory provisions do not state that the Court may condone on good cause
shown.
[22] This matter was dealt with comprehensively in the Labour Appeal Court
judgment of Queenstown Fuel Distributors CC v J Labuschagne n.o. and
Others, (Case No PA 3/1999) a judgment by CONRADIE JA. I quote from
paragraph [24]:
"In principle, therefore, it is possible to condone noncompliance with a
time limit. It follows, however, from what I have said above, that
condonation in the cases of disputes over individual dismissals will not
readily be granted . The excuse for noncompliance would have to be
compelling. The case for attacking a defect in the proceedings would have
to be cogent and the defect would have to be of a kind which would result
to be cogent and the defect would have to be of a kind which would result
in a miscarriage of justice if it were allowed to stand" (emphasis
supplied).
[23] There is, therefore, the possibility of condoning the lateness of bringing
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an application for review in terms of section 33 of the Arbitration Act.
I say this to address the argument put forward by the legal representative
of the applicant, when he argued that, if for whatever reason, the
applicant fails to serve in terms of the Rules, such service would always
be fatal to its case. Provided there is a very cogent and compelling
explanation why service could not have take place within the prescribed
six week period, then (and only then) there is the possibility of an
application for condonation being brought and for the explanation to be
properly considered (see the Queenstown Fuel Distributors judgment quoted
at paragraph [22] above).
[24] The further argument put forward by the legal representative for the
applicant was that it is easy for the applicant in an application for
review to file because it is known where to file the document. However, it
is sometimes difficult to get hold of the respondent(s) to serve the
application.
[25] I believe that the policy behind Rule 4 of the Rules of the Labour Court
is to protect the interests of applicants, as long as they serve in terms
of Rule 4. Rule 4(2) applies and states clearly that proof of service, for
instance, where service is effected by way of registered post or fax
number, is proven in Court merely by filing an affidavit stating that the
application was either posted by registered post and affixing the
necessary certificate or that it was faxed by telephone and affixing the
necessary fax certificate to such affidavit.
[26] If there is no response by the respondent(s) for whatever reason, such
matter can then, of course, proceed by default. As long as the application
matter can then, of course, proceed by default. As long as the application
was served on the correct address or faxed to the correct telephone
number, the matter can be taken care of by default.
[27] It is only if the respondent later comes into the picture, for instance,
even after an order has been granted and an application for rescission is
made, that such application can then be considered. In all other
circumstances a judgment by default will go ahead.
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[28] I do not want to be too discursive on these issues save to state that I
believe that the Rules of Court are fair where they deal with service and
that they are not inherently unjust. In my view, the Rules of Court are
not unjust as far as the interests of both applicants and respondents are
concerned.
[29] In the facts which present themselves in the present matter, the applicant
clearly knew where to find the respondent as the application papers
were hand delivered on 21 April 1999, and this is then clearly not a
matter where the papers
were not received by the respondent (and, as I said, receipt of the
documents is in any event not the operative requirement). Further, the
applicant has sought to file on 17 March 1999. However, without any
explanation, even up to today, the applicant did not serve the application
within the six weeks' requirement as set out in section 33(1) of the
Arbitration Act.
[30] In the event, a substantive application for condonation was called for
which could then have been addressed in terms of the very strict test
for condonation set out in the Queenstown Fuel Distributors judgment
(referred to at paragraph [22] above), where especially the “excuse for
noncompliance would have to be compelling”.
[31] However, at this stage no application for condonation has even been made
although the third respondent already in filing its answering affidavit
almost a year ago (on 28 May 1999) alerted the applicant to the need to
apply for condonation. Neither has any explanation at all been offered for
this failure.
[32] It is my ruling that a substantive application for condonation was
required in casu .
In the event, in view of what was stated above, especially the strict test for condonation in reviews of
arbitration awards (supra) and in the complete absence of an explanation for the failure in casu as
well as the fact that no application was made for condonation at all, it follows that the application
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stands to be dismissed.
[33] The only question that remains is the question of costs.
[34] It would appear to me that the applicant was already alerted to the fact that there should be an
application for condonation as early as May 1999. Nevertheless, the applicant, to his own detriment,
decided not to make an application for condonation in this matter, having hereby occasioned the
dismissal of the application for the reasons set out above.
[35] In the event, I regard it as fair to make an order that the applicant is to pay the respondent’s costs.
[36] I make the following order:
The application is dismissed with costs.
______________________
Basson, J
10 February 2000
10 February 2000 ( ex tempore)
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