Department of Agriculture and Rural Development v Khumalo and Others (D566/17) [2021] ZALCD 55 (29 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

Case no: D566/17

Not Reportable

In the matter between:

DEPARTMENT OF AGRICULTURE AND RURAL

DEVELOPMENT Applicant

and

PAMELA THULEDU KHUMALO First Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL Second Respondent

BALKARAN NO Third Respondent

WINIFRIEDA MATHOBI MKHIZE Fourth Respondent

Heard: 09 July 2021

Delivered: 29 July 2021

JUDGMENT

PRIOR AJ

Summary: Practice and Procedure- Labour Court Practice Manual-Review Application- Clause 11.2.3 -Where no consent or extension of time is sought within the sixty (60) day period for filing of record an application for review is deemed to be withdrawn-A defaulting party may apply for the reinstatement of the review application and in that application must apply for condonation for the non-compliance.

Summary: Practice and Procedure- Labour Court Practice Manual-Review Application- Clause 11.2.3 -Court in considering reinstating the review application to apply traditional test used in applications for condonation.

Summary: Practice and Procedure- Labour Court Practice Manual-Review Application- Clause 11.2.3-In absence of request for and consent to, extension of time for filing record of proceedings, review application deemed withdrawn-Whether action or inaction of defaulting party after application is deemed withdrawn should be a consideration in determining whether to reinstate application for review.

Introduction:

[1] The applicant seeks to re-instate its pending review application. In addition thereto the applicant seeks a further order that if it is successful in the

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reinstatement application that the enforcement of the award be stayed without security being ordered.

[2] The first respondent opposes both applications.

[3] The matter was enrolled for hearing on 9 July 2021 and in accordance with the directive of this Court the proceedings were held virtually via the Zoom platform.

Factual background as summarized

[4] The first respondent was employed by the applicant in a senior management capacity and at the time of the referral of the dispute held the position of Acting Chief Director: Northern Region.

[5] During 2013 the applicant commenced a recruitment process for the appointment of a Chief Financial Officer (“CFO”). The first respondent applied for the position but was unsuccessful. The fourth respondent was appointed as CFO. The first respondent then claimed that but for the unfair conduct of the applicant she would have been recommended for the position as CFO.

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[6] The first respondent’s complaint consists of two main grievances. The first is that one of the Selection Committee members, a Mrs. Qhobosheane, failed to disclose that she was related to the successful appointee, the fourth respondent. It was alleged that the degree of consanguinity between the parties revealed that Mrs. Qhobosheane and the fourth respondent are cousins. The second issue related to various contraventions of the applicant’s own Policy on Recruitment.

[7] The first respondent referred an unfair labour practice dispute to the second respondent who appointed the third respondent to conduct an arbitration to determine the dispute.

[8] On 24 October 2016 an arbitration was held. Neither the applicant nor its representatives appeared at the hearing. On the day of the arbitration attempts were made to contact the applicant’s representatives telephonically which attempts provided unsuccessful. In fact, contact was made with the applicant’s offices but no-one appeared to have responded to the third respondent’s enquiries.

[9] The third respondent decided to proceed with the arbitration in the absence of the applicant. There is no indication that I could find in the record, his preliminary costs award of 24 October 2016 or his final award dated 15

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February 2017 that the third respondent enquired into whether the notice of set down was received by the applicant.

[10] The third respondent issued an interim cost award and directed the parties to file written submissions before making a final determination. On 8 November 2016 this award and directive were served on the applicant’s representative, one Shaun Henmann.

[11] It appears from the record that the applicant did not make written submissions whilst the first respondent did.

[12] On 15 February 2017 the third respondent handed down the final award in terms of which he determined that the applicant had committed an unfair labour practice relating to the first respondent’s promotion and awarded compensation in the form of ‘retrospective protected promotion’ calculated from the date of appointment of the fourth respondent, being the 1 July 2013.

[13] The applicant did not apply for the rescission of the award.

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[14] The applicant avers that it only received a copy of the final award from the first respondent on 14 March 2017.

[15] On 28 April 2017 the applicant filed its application for review.

[16] On 30 June 2017 the applicant was advised by the Registrar that the record was available.

[17] The applicant did not seek the first respondent’s consent as envisaged in Clause 11.2.2 of the Practice Manual for the Labour Court.

[18] On 25 May 2018 the applicant filed the record.

[19] On 3 March 2021 applicant filed its Rule 7A (8) notice to abide by its notice of motion and founding affidavit.

[20] On 9 March 2021 applicant filed its application for reinstatement of the review application.

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[21] On 14 March 2021 first respondent filed its answering affidavit.

[22] On 24 March 2021 applicant filed its replying affidavit.

Legal Principles

[23] The Labour Court is established as a court of law and equity with inherent powers, in relation to matters that fall under its jurisdiction equal to that to which a division of the High Court has under its jurisdiction.[1]

[24] The Labour Court therefore has the inherent jurisdiction to regulate its own proceedings and control its own processes.[2] Section 158 (1) of the Labour Relations Act (“LRA”) confers specific powers on the court including the power to deal with all matters incidental to performing its functions in terms of the LRA or any other law.[3]

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[25] It is from these inherent powers that the Labour Court is empowered to deal with an application to reinstate an application for review that has been deemed to have been withdrawn.[4]

[26] Despite the right of an applicant to review an award, the exercising of such a right is not without limitation. Our labour law has developed to such an extent that the substantive right of review is limited to instances of gross misconduct and irregularity[5] and to instances where an award is one that a reasonable arbitrator would not make.[6]

[27] Limitations on reviews have not only been substantive in nature but procedural as well.

[28] On 2 April 2013 and in order to try to ensure that applications for review were timeously prosecuted and did not languish in registrars’ offices waiting on the whim of applicants for review to extract themselves from their torpidity and to pursue the application, the Judge President introduced the Practice Manual for the Labour Courts (“the Practice Manual”).

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[29] Despite the notion of flexibility in the Practice Manual there can be no doubt that litigants are bound by the provisions contained therein.[7]

[30] The Labour Appeal Court in Samuels v Old Mutual Bank[8] and Macsteel Trading Wadeville v Van Der Merwe NO & Others[9] reaffirmed that the perennial objective of the Practice Manual was the promotion of the statutory imperative of expeditious dispute resolution and that the Practice Manual was accordingly binding on parties.

[31] Clauses 11.2.3, 11.2.7 and 16.3[10] of the Practice Manual introduced measures which prescribe acceptable time limits for performing certain steps in the review process and in addition thereto attaching adverse consequences for non-compliance, in terms of which a review application is deemed withdrawn, lapsed or dismissed.

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[32] In this application the applicable deeming provision under scrutiny is Clause 11.2.3 of the Practice Manual, which provides: -

“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”.

[33] In Overberg District Municipality v IMATU obo Spangenberg & Others[11] the Labour Court found that there are no Labour Appeal Court decisions specifically dealing with the issue of Clause 11.2.3. However, the LAC in Samuels,[12] in dealing with Clause 11.2.7 of the Practice Manual, set out the requirements for “bringing the matter back to life” in the case of a party not filing all the review papers within 12 months of launching an application for review. The LAC refers to Clause 16.2 of the Practice Manual which provides:

“ A party to a dispute in which the file has been archived may submit an application, on affidavit, for the retrieval of the file, on notice to all other parties to the dispute. The provisions of Rule 7 will apply to an application brought in terms of this provision.”

[34] In Samuels[13] the LAC also set out the requirements for retrieving a review application which had been archived. In granting the applicant leave to proceed with the review application the court stated:

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“In essence, an application for the retrieval of a file from the archives is a form of an application for condonation….Showing good cause demands that the applicant be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default and show that he/she has reasonable prospects of success in the main application and lastly that it is in the interests of justice to grant the order.”

[35] There is concurrence in the Labour Court, who have dealt with review applications that have been deemed to have been withdrawn under Clause 11.2.3, that a party: may apply for condonation for the late filing of the record,[14]. must formally apply for reinstatement or condonation for non-compliance before the review can be heard,[15] and that such an application would be subject to the ordinary principles applicable to condonation applications.[16]

[36] It can be gleaned from the judgments considered above that nothing stops a respondent from bringing a Rule 11 application for the dismissal of the application for review.[17]

[37] The central thread that can be gleaned from the majority of these judgments is that a reinstatement application must be brought to revive the application for review together with an application for condonation. In Sol Plaatjie Local

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Municipality v South African Local Government Bargaining Council and Others,[18] Prinsloo, J, found that without an application reinstating the review application, there is no application to entertain, including a condonation application for the late filing of the record. This is not only a rational approach but a common-sense approach to the issue as observed by Lagrange J in Overberg:

“It is difficult to envisage how any review application could be reinstated unless the act of non-compliance is also condoned.”[19]

The relevance of steps taken after a review application is deemed withdrawn.

[38] In Overberg[20] the Labour Court raised a new issue which was not dealt with in previous judgments. The proposition raised was: ‘after the application is deemed withdrawn how should the court deal with subsequent steps taken by an applicant to prosecute the review application.’

[39] The Labour Court made the following observations:

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39.1 once a review application’s legal status as a pending application ceases by operation of one of the deeming provisions in the manual there can be no enforceable obligation to file further court process in the main application;

39.2 should the inaction of a party after the application has become defunct be a consideration in reinstating the application or should the determination of reinstatement be confined essentially to whether the non-compliance which led to it being deemed such, should be excused?’

[40] In Overberg, Lagrange J, answers the above questions and opines as follows:

“In my view it would be odd that a party whose non-compliance had caused its application to become inactive, could then fold its arms until its reinstatement application is decided. Whilst it might not be strictly obliged to take further steps, its bona fides in seeking to finalise the review would surely be questionable if it did nothing further to ready the matter for speedy resolution in the event that its reinstatement application succeeds. To accept the passivity of party once their application is deemed inactive, would also seem to promote further delay rather than curtail it, contrary to the principle that review should be dealt with expeditiously. An applicant party that has been dilatory and is seeking an indulgence to revive the review application therefore ought to satisfy the court that it in the interim it has done what it can to remedy its failure which led to the application being deemed inactive in the first place and done whatever else it could do so that the matter would be ready for hearing when reinstated. Accordingly, steps taken during the time the application was inactive should in my view, have a material bearing on the success of attempts to revive it, and if the steps taken would also have led to the review application being withdrawn, they would have to be condoned if it is permitted to proceed.[21]

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[41] The Court held further[22] that for reinstatement to occur the first step is for the court to be satisfied that the non-compliance with the manual which led to the application being deemed withdrawn, should be condoned. As such the party’s dilatoriness up to that point will be considered and if there was merit, excused. Secondly if a party is to ultimately succeed in the reinstatement application that party should still demonstrate that it acted promptly in launching the reinstatement application and that it has taken further steps in a bona fide attempt to ensure that the review application may be finalized should reinstatement be granted. The Court will also be called upon to determine whether the further steps should be condoned.

[42] Finally, in applying the traditional test for condonation in determining whether the reinstatement application should be granted, insofar as the prospects of success are concerned, the court need only assess the case on the basis as to whether the facts as stated, if proven, would result in success.

Evaluation

[43] Central to the determination of this matter is the consideration of the specific requirement of expedition in the prosecution of employment law disputes. The

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Constitutional Court has repeatedly pronounced on the expeditious resolution of labour disputes. In Khumalo & Another v Member of the Executive Council for Education KwaZulu-Natal[23] the Court per Skweyiya said: “[The importance of resolving labour disputes in good time is thus central to the LRA framework.’ In Aviation Union of SA & Another v SA Airways (Pty) Ltd & others[24] Jafta J held ‘Speedy resolution is a distinctive feature of the adjudication in labour relations disputes.’ In National Education Health & Allied Workers Union v University of Cape Town & others[25] Ngcobo J opined that, “by their very nature labour disputes must be resolved expeditiously and be brought to finality.’ In Toyota SA Motors (Pty) Ltd v Commissioner for Conciliation Mediation & Arbitration & others[26] (2016) 37 ILJ 313 (CC) Nkabinde J stated: ‘Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes….. Any delay in the resolution of labour disputes undermines the primary object of the LRA.’

[44] Given the views expressed above the applicant has a number of hurdles to overcome.

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The delay

[45] The applicant avers that it only received a copy of the final award from the first respondent on 14 March 2017. On 28 April 2017 the applicant through the State Attorney filed its application for review. Given that the six-week period contemplated in section 145 of the LRA expired on the 25 April 2017, the applicant applied for condonation of the late filing of the review application.

[46] On 30 June 2017 the Registrar made the record available to Ms. Pillai, an attorney in the employ of the State Attorney. The sixty-day period contemplated in Clause 11.2.1 of the Practice Manual, expired on 29 August 2017.

[47] The applicant did not seek the first respondent’s consent as envisaged in Clause 11.2.2 of the Practice Manual for the Labour Court.

[48] On 25 May 2018 the applicant filed the record. The filing of the record, by my calculation, was 269 days late. This equates to almost a nine (9) months delay. The delay is not insignificant. In Makuse v Commission for Conciliation

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Mediation and Arbitration and others[27] the court described a delay of eight months as egregious. Such a delay could well lead to the matter being disposed of in the absence of any explanation.[28]

Explanation for the delay

Systemic Challenges in the State Attorneys Offices

[49] The applicant relies on two grounds for its explanation for the delay of the filing of the record, namely, the systemic challenges in the State Attorney’s Office and the illness of Ms. Pillai, the appointed attorney. Effectively the applicant claims that they are in no way to blame and firmly place the blame on the State Attorney in general and Ms. Pillai specifically.

[50] The applicant averred that it is forced to use the services of the State Attorney because should they wish to employ a private practitioner, they would have to follow a tedious, bureaucratic and time-consuming procurement process.

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[51] The applicant went on to state that the State Attorney’s office was inundated with litigation matters which not only placed pressures on the State Attorney but on Ms. Pillai, as a Senor State Attorney, as well, who simply could not cope. It is alleged by the applicant that Ms. Pillai had a workload of some 700 files at any given time. Ms. Pillai had requested (or at least expected) that her workload be ameliorated by the appointment of other attorneys or candidate attorneys, but this need was not filled. No specific reasons were proffered by the applicant as to why this need was not filled.

[52] Mr. Rezaan Cassim, a senior legal administrator in the employ of the applicant, in the applicant’s founding affidavit, stated that he had followed up with Ms. Pillai via correspondence on the 25 May 2017, 19 June 2017, 4 July 2017, 27 July 2017, 29 August 2017, 24 January 2018, 10 April 2018, 23 May 2018, 11 June 2018, 10 August 2018, 18 January 2019, 25 April 2019, 23 May 2019.

[53] Before dealing with the conduct of the dramatis personae in this matter I believe it is relevant to have regard to the nature of the record filed in the review. The indexed record bundle consists of 102 pages of documents which were either used at the arbitration or which emanated from the arbitration itself.

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[54] The documents filed of record indicate that there was no mechanical recording in this matter and therefore there was no need for the applicant to obtain a transcription of a recording which one usually encounters in applications for review and which is often used as an excuse for any delays that may be experienced.

[55] All that Ms. Pillai had to do was to arrange for photocopies of the record to be made, draft a Rule 7A (6) Notice and file and serve the same. This task could have been completed in no more than a few hours and certainly ought to have been within the capabilities of Ms. Pillai, a Senior State Attorney and certainly cannot be viewed as a complicated step in the process. I have grave difficulties in accepting that the suboptimal functioning of the State Attorney’s office should be a general justification for delay in all cases. Each case should be assessed on its own facts. In any event no matter how dysfunctional the office of the State Attorney was at the time, the explanation proffered by the applicant that the simple task as demonstrated above, could not be achieved in time, is not compelling and simply does not pass muster.

[56] The applicant chose not to put up an affidavit from Ms. Pillai explaining the specific steps that she took when she received the record from the Registrar. The applicant was content to simply allow Ms. Pillai to put up a confirmatory affidavit to confirm the broad averments of systemic issues and her illness.

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[57] The applicant’s explanation for the delay lacks details and specificity and is devoid of a comprehensive explanation by Ms. Pillai as to what she was doing about the matter between the 30 June 2017 and 25 May 2018.

[58] What is disconcerting about the explanations given by the applicant is that as late as 15 August 2019, Mr. Cassim arranged to have a consultation with Ms. Pillai. This consultation produced a query as to whether the record had been filed. Mr. Cassim claims that Ms. Pillai promised she would check and revert to him, and if necessary, apply to the Labour Court for a directive.

[59] If this evidence is true, it is extremely damning. It raises the question of Ms. Pillai’s diligence and competence in the handling of the case and her knowledge of labour law. Why did Ms. Pillai not know as at the 15 August 2019 that the record had been filed on 25 May 2018? However more telling is the reference to applying to the Labour Court for a directive. What directive? Unless Ms. Pillai was alluding to the procedure referred to in Clause 11.2.3 to apply to the Judge President for an extension of time, there is no such procedure that I am aware of allowing an application for a directive to be filed in connection with the late filing of a record. Unfortunately, as commented before, the applicant chose not to put up a full explanatory affidavit by Ms. Pillai.

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[60] There is also no explanation as to when the applicant became aware that they were out of time in connection with the filing of the record. On 9 March 2021 the applicant filed its application for reinstatement of the review application. This was almost three years after filing the record. It is trite that an applicant in seeking condonation must, without delay, bring an application for condonation once they realise that they are in default. In Darries v Sheriff, Magistrate’s Court, Wynberg and Another[29]

“An application for condonation should be brought without delay and as soon as possible once an applicant realizes that he has not complied with a rule of court. “

[61] The applicant in its explanation states that there were omissions committed by Ms. Pillai. Given the observations made above this averment is an understatement. The observations clearly point to the situation, which is reflective, at best for the applicant, of negligent conduct on the part of the State Attorney and at worst, gross negligence. It has been consistently held in a long line of decisions by the courts, including the LAC[30] that an attorney’s neglect of its client's affairs may be so inexcusable that condonation may, despite the blamelessness of the client be refused.

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[ 62] In the matter of Khan v Cadbury South Africa (Pty) Ltd[31], Steenkamp J summarised the principles relating to attorney’s negligence as follows:

“Our courts have repeatedly held that there is a limit beyond which a litigant cannot escape the result of his or her attorney's lack of diligence. This court deals with applications for condonation on an almost daily basis. In some instances, the delays occasioned by unrepresented litigants. But all too often, the attorneys are to blame. It may be necessary to remind litigants and the attorneys of the words of Steyn CJ in Saloojee and another vs Minister of Community Development 1965 (2) SA 135 (A) 141 B-H more than 45 years ago: "There are limits beyond which a litigant cannot escape the result of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of this court...The attorney, after all, is the representative the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are… and if, as here, the explanation offered to this court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his attorney, he should at least explain that none of it is to be imputed to himself.

[63] In Superb Meat Supplies CC v Maritz[32] the Labour Appeal Court stated:

"It has never been the law that invariably a litigant will be excused if the blame lies with the attorney. To hold otherwise would have a disastrous effect on the observance of the rules of this court and set a dangerous precedent. It would invite or encourage laxity on the part of practitioners."

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[64] I am however of the view that the applicant is not entirely blameless in this matter. Mr Cassim is a senior legal administrator. It must be accepted from the terminology used in his letters to Ms Pillai alternatively inferred therefrom that he has some experience in the legal process and dealing with labour disputes.

[65] If one has regard to the letters written B Mr. Cassim to Ms. Pillai one will observe that in the main the contents thereof consist of ‘one liners’, which simply state: “kindly advise us of the progress of the matter” or “advise us of the status of the matter”. There is no further enquiry made by Mr. Cassim, even though it is evident from Mr. Cassim’s affidavit, there was never a response from Ms. Pillai. Surely after the third or fourth letter going unanswered, a red flag should have been raised that something was amiss. Mr. Cassim did nothing in this regard. There were several very practical measures Mr. Cassim could have employed. The first was to have telephoned Ms. Pillai to enquire directly. The second would have been to raise the unresponsive scenario with his superiors and thirdly he could have taken up the issue with Ms. Pillai’s superiors.

[66] The matter is bedevilled by long periods of unexplained inaction. This is demonstrated by Mr. Cassim’s own admission that there were long delays between communications with Ms. Pillai. For example: between 29 August 2017 and 24 January 2018 (five months), the latter date and 10 April 2018 (two and

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a half months) and later between 10 August 2018 and 18 January (five months). During these periods the applicant remained effectively supine and in respect of which no explanation has been forthcoming.

Ms Pillai’s illness

[67] The applicant averred that the delays in this matter were further exacerbated by Ms. Pillai being away from the office due to health reasons. Ms. Pillai was diagnosed with Lupus SLE and fibromyalgia early on whilst dealing with this review. In 2020 Ms. Pillai was diagnosed with vasculitis. It is alleged that these illnesses, caused Ms. Pillai to be inattentive, prone to opportunistic illnesses and unable to cope with her workload and which caused her to be away from work, days at a time.

[68] I do not accept the first respondent’s argument that because no medical certificates were put up that I must ignore the fact of Ms. Pillai’s illness. It may well have been preferable that medical certificates should have been tendered but I accept that Ms. Pillai being a senior attorney and an officer of this Court would not mislead the Court as to the fact of her illness. Ms. Pillai’s afflictions are such that it is improbable that someone would want to distort the truth regarding this type of illness he or she may suffer from.

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[69] Unfortunately there is once again no detail or particularity in the applicant’s explanation as to how Ms. Pillai’s malaise would have affected the simple preparation and filing of a record consisting of only 102 pages.

[70] Even if I were to accept that Ms. Pillai’s medical condition rendered her inattentive, prone to opportunistic illnesses and unable to cope with her workload there is no full explanation provided as to whether Ms. Pillai suffered these maladies constantly during the period from 30 June 2017 to 25 May 2018.

[71] The upshot of the explanations proffered by the applicant are that they are not full and reasonable and accordingly they are not acceptable. The applicant and the State Attorney have failed in this regard.[33]

Prospects of success in the review application.

[72] The applicant submits that is has very good prospects of success given that the first respondent was the lowest scoring in the recruitment process and that because the applicant did not attend the hearing, the arbitration should be conducted de novo.

[73] The applicant in its review application in dealing with the allegation that one of the Selection Committee members, a Mrs. Qhobosheane, failed to disclose that she was related to the successful appointee, the fourth respondent simply states that the third respondent was not entitled to accept the first respondent’s say so as to bias and that submissions in this regard were hearsay and should have been rejected.

[74] The issue of bias was not only gleaned from the submissions put up by the first respondent but by the third respondent’s analysis of documents submitted in the arbitration where he noticed the marked difference in the scoring of the fourth respondent between the HOD Mr. Strauss and Mrs. Qhobosheane, the former having scored a mark of 15 and the latter, a mark of 29.

[75] It is significant that both in the review application and the application for reinstatement no evidence is put up by the applicant to gainsay the finding on the relationship between Mrs. Qhobosheane and the fourth respondent. To my mind they were either related or they were not. If bias was established this would seriously affect the validity of the Selection Committee’s decision.

[76] It is an anathema to me that the applicant did not launch a rescission in this matter when it alleges that it did not receive the notice of set down for the original hearing. Even though the applicant did not react to the invitation to

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make submissions before a final award was made, and which was served on them, their prospects of success in an application for rescission may have been assured. In the papers before me the applicant alludes to some activity in respect of this issue, however a close scrutiny simply reveals a dithering between the State Attorney and Counsel as to whether to proceed with an application for rescission or not. What is significant is that the applicant did not avail themselves of this option.

Prejudice

[77] The applicant does not deal with the issue of prejudice in its application for reinstatement proper but alludes to the same in its dealing with the issue of provision of security under its application to stay.

[78] The applicant in its review application raises issues with the award insofar as it sounds in money. The first complaint is that the third respondent exceeded his powers as envisaged in section 194 of the LRA by, in effect, awarding compensation in excess of 12 months. The second complaint is that it is uncertain from the award as to whether the applicant was to utilize the . remuneration payable to the post of CFO or the difference between the substantive post held by the first respondent and the fourth respondent.[34]

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[79] The applicant argues that to allow the award to stand would be extremely prejudicial to the public purse.

[80] Even if one were to assume that the applicant’s review application may have some merit and that it may be prejudicial for the review not to be reinstated, the applicant has directly (and in concert with the State Attorney) been the master of their own misfortune. Given the excessive delays and my view that the applicant has failed to give a full, reasonable and compelling explanation for such delays,[35] these must trump all else.[36] As a result no good cause has been shown for the granting of condonation.

[81] In Darries v Sheriff of the Magistrates Court, Wynberg & Another, Plewman JA stated the following:

“But appellant’s prospects of success are but one of the factors relevant to the exercise of the court’s discretion unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration. Where non-observance of the Rules has been flagrant and gross an application for condonation should not be granted, whatever the prospects of success might be.”[37]

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[82] In Grootboom v National Prosecuting Authority & Another, the Constitutional Court held that granting condonation must be in the interests of justice and that:

[23] “It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default.

[51] The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.”[38]

[83] I am firm in my view that in the totality of all the circumstances herein the interests of justice would not be served if the review was to be reinstated.

The relevance of steps taken by the applicant after the review application was deemed to be withdrawn.

[84] On 3 March 2021 the applicant filed a Rule 7A (8) notice to abide by its notice of motion and founding affidavit. By my calculation this notice ought to have

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been filed on 13 July 2017. The filing was accordingly 3 years and 7 months late. There is no explanation at all for this delay.[39]

[85] On 14 March 2021 first respondent filed its answering affidavit. On 24 March 2021 applicant filed its replying affidavit.

[86] A further example of the lack of appreciation of the need for expediency is illustrated by the fact that the applicant only filed its application for reinstatement on 9 March 2021, almost three years after filing the record.

[87] I find myself in support of the approach in Overberg.[40] It is a practical and common-sense approach which takes all circumstances into account. For a court to only deal with the offending issue at hand whilst being fully aware that there exist other non-compliances which require attention by an applicant and which would impede the expeditious conclusion of a review application, would

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be unacceptable and would fly in the face of the objectives of the LRA, namely, to achieve timeous resolution of disputes.[41] To deal with all the issues in one application would also lend itself to creating certainty in matters of this nature

[88] Accordingly, the applicant’s torpid conduct after the review having been deemed withdrawn does have a material bearing and is a consideration in making a finding that the application for reinstatement should not succeed.

[89] It is in the interests of justice that this matter be brought to an end, which is in keeping with the requirement of the expeditious resolution of employment disputes.

[90] Given my findings in this matter it is not necessary to deal with the issues of a stay of the award and the provision of security.

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Conclusion

[91] For all the above reasons the application to reinstate the review must fail and the application is accordingly dismissed.

[92] I turn now to deal with the issue of costs. This is a matter which would perhaps justify the awarding of punitive costs against both the applicant and the State Attorney. I nevertheless have a wide discretion having regard to the provisions of section 162 (1) of the LRA. Considering the decision in Zungu v Premier of the Province of Kwa Zulu Natal and others[42] regarding costs orders in employment disputes I believe that given that the first respondent is still in the applicant’s employ that it would not foster good labour relations for the applicant to pay the first respondent’s costs. I am mindful of the public purse and I accordingly do not believe that it would be in the interests of justice that the State be mulcted with costs either.

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Order:

[93] I make the following order:

1. The application for reinstatement of the application for review under case number D566/17 is dismissed;

2. There is no order as to costs.

Andrew Prior

Acting Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT: Advocate R Athmaram (instructed by the State Attorney)

RESPONDENT: Attorney Shadrack Nxumalo

[1] S166 € of the Constitution, Section 151 of the Labour Relations Act No.66 of 1995, as amended and the Preamble to the Superior Courts Act No.10 of 2013.

[2] Windybrow Theatre v Maphela (2016) 37 ILJ 2641 (LAC) at para 15.

[3] S158 (1)(j) of the Labour Relations Act. 66 of 1995. See Johannesburg Metropolitan Municipality & Others v IMATU (2017) 38 ILJ 2695 (LAC) at para 52.

[4] Robor Tube (Pty) Ltd V MEIBC (2018) 39 ILJ 2332 (LC) at [7]

[5] S 145 (2) of the Labour Relations Act No 66 of 1995, as amended.

[6] Sidumo & Another v Rustenburg Platinum Mines Limited & Others (2007) 28 ILJ 2405

[7] Ralo v Transnet Port Terminals & Others (2015) 36 ILJ 2653; MJRM Transport Services CC v CCMA & Others (2017) 38 ILJ 414 (LC)

[8] (2017) 38 ILJ 1790 (LAC) at para 14

[9] (2019) 40 ILJ 798 (LAC) at para 20

[10] On 1 Jan 2015 Section 145(5) of the LRA was amended by Act 6 of 2015 which provides that an applicant must apply for a date within 6 months of bringing the application. Item 16.1 of the Practice Manual dovetails with this section. It is to be noted that this section appears to conflict with Clause 11.2.7 of the Practice Manual. A statutory provision trumps the Practice Manual and therefore the time limit to apply for a hearing date has been shortened to six (6) months. However, there is no deeming provision in the section which lapses the application on non-compliance with the shorter time-period. Lagrange J in Overberg at 1292 I, observes that an application for condonation for the late application of a hearing date would have to be filed. It is submitted that the Practice Manual should be amended to reflect the shorter period and avoid confusion.

[11] (2021) 42 ILJ 1283 (LC) at 1291 para 25.

[12] (2017) 38 ILJ 1790 (LAC) at 1793 para 4

[13] (2017) 38 ILJ 1790 (LAC) at 1796-7 para 17

[14] Dagane v Safety and Security Bargaining Council & Others (2018) 39 ILJ 1592 (LC) at p. 1597 para 13

[15] SAMWU obo Mlalandle v SALGBC & Others (2017) 38 ILJ 477 (LC)

[16] MJRM Transport Services CC v CCMA & Others (2017) 38 ILJ 414 (LC) at p.416 para 16

[17] Mchunu v Rainbow Farms (Pty) Ltd: In re Rainbow Farms (Pty) Ltd v CCMA & Others (D203/15) (2017) ZALCD 17 (12 June 2017); Mthembu v CCMA & Others (2020) 41 ILJ 1168 (LC) at p.1171 paras 13-14

[18] (PR192/15) [2017] ZALCPE 11 (13 June 2017). See Festive, A division of Astral Operations Ltd v CCMA & Others (JR1686/15 [2020] ZALCJHB 178 (31 August 2020)

[19] Overberg at p.1295 para 32

[20] Overberg, at p.1296 para 36-40

[21] Overberg, at p.1296 para 38

[22] Overberg at 1296 para 39

[23] 2014(5) SA 579 (CC); (2014) 35 ILJ 613 (CC) at para 42

[24] 2012 (1) SA 321 (CC); (2011) 32 ILJ 2861 (CC) at para 76

[25] 2003 (1) SA 1 (CC); (2003) 24 ILJ 95 (CC) at para 31

[26] (2016) 37 ILJ 313 (CC) at para 1

[27] (2016) 37 ILJ 163 (LC) at para 15

[28] Toyota supra at paras 46 to 47

[29] 1998 (3) SA 34 (SCA) at 40I—41D.

[30] CF Salojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141B-H; Zondi and Others v President of the Industrial Court and Another [1997] 8 BLLR 984 (LAC) at 989 E-F; Waverley Blankets Ltd vs Ndima and Others [1999] 11 BLLR 1143 (LAC).

[31] (C965/2008) [2010] ZALCCT 22 (17 November 2010)

[32] (2004) 25 ILJ 96 (LAC). See too SA Post Office v Commission for Conciliation Mediation and Arbitration (2011) 32 ILJ 2442 (LAC) at para 21

[32] (2004) 25 ILJ 96 (LAC). See too SA Post Office v Commission for Conciliation Mediation and Arbitration (2011) 32 ILJ

2442 (LAC) at para 21

[33] Tshivhase Royal Council & Another v Tshivhase and Another [1992] ZASCA 185. 1992(4) SA 852 (AD) at 859E-F. See too Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008(2) SA 472 (CC) at para 22. Wilhelm George Huysamen & Another v Absa Bank Ltd and others [2020] ZASCA 127 (12 October 2020)

[34] If the complaint is a confusion as to the import of the award, the applicant is not without an alternative remedy. The applicant may avail itself of the remedy set out in section 144 (b) of the LRA to seek a variation of the award to resolve the ambiguity

[35] Ferreira v Die Berger (2008) 29 ILJ 1704 (LAC) at para 8

[36] Matsha & Others v Public Health & Social Development Sectoral Bargaining Council & others (2019) 40 ILJ 2565 (LC) at para 29

[37] [1998] ZASCA 18; 1998 (3) SA 34 (SCA) at 40H-41E

[38] 2014 (2) SA 68 (CC); (2014) 35 ILJ 121 at paras 23 and 51

[39] Rule 7A (8) “The applicant must within 10 days after the registrar has made the record available either- (a) by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of the notice of motion and supplement the supporting affidavit; or (b) deliver a notice that the applicant stands by its notice of motion.”

[40] (2021) 42 ILJ 1283 (LC)

[41] Toyota SA Motors (Pty) Ltd v CCMA & Others (2016) 37 ILJ 313 (CC). For the support of a global approach see Matsha & Others v Public Health and Development Sectoral Bargaining Council and Others (2019) 40 ILJ 2565 (LC) at para 27

[42] (2018) 39 ILJ 523 (CC) at para 25