Department of Social Development Gauteng v WAR obo Ramaele and Others (JR 2316/15) [2023] ZALCJHB 118 (13 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR 2316/15

In the matter between

DEPARTMENT OF SOCIAL DEVELOPMENT GAUTENG Applicant And WAR obo CM RAMAELE First Respondent PUBLIC HEALTH AND SOCIAL DEVELOPMENT SECTORIAL BARGAINING COUNCIL Second Respondent DIALWA MATHALE N.O. Third Respondent

Heard: 30 November 2022

Delivered: 13 April 2023

Summary: This Court cannot exercise jurisdiction to dismiss a review application on the basis of failure to prosecute. Where a review

application is deemed withdrawn, this Court lacks jurisdiction to dismiss the review application.

JUDGMENT

SWARTZ AJ

Introduction

[1] There are two applications in this matter. The first being an application in terms of rule 11 of the Rules for the Conduct of

Proceedings in the Labour Court (the rules) to dismiss a review application dated 8 October 2018 and the second being the review

application dated 24 November 2015.

[2] This matter has a long and unfortunate history. On 21 September 2022 the Labour Court sent a letter to the parties stating inter alia that:

“The Judge President has perused the file JR 2316/15, which was placed before the Judge on 21 April 2021 in which the Judge noted that there was no appearance from either of the parties. The Judge President notes that the notice of set down indicated that the matter was set down for 20 April 2021. Clearly there has been confusion in respect of this matter which appears to be a review application although the heads filed by the applicant indicates that there may also be an application in terms of section 158(1)(c) of the Labour Relations Act no 66 of 1995, as amended. Added to that, there also appears to be a Rule 11 application.”

[3] On 29 September 2022 the Office of the State Attorney of Johannesburg who represents the Department of Social Development Gauteng replied to the Labour Court’s above-mentioned letter stating inter alia that:

“The matter was indeed set down for hearing on 20 April 2021. On the day, the matter came before the Honourable Nkosi AJ, and both parties argued the Rule 11 application. After hearing arguments, judgement was reserved. However, by 2022 parties had not received judgement as result we addressed a letter dated 10 March 2022 to the Honourable Judge President… We request the Honourable Judge Pres’s further consideration and direction in how the matter should proceed.”

[4] On 13 October 2022 the Labour Court sent a further letter to the parties stating that:

“…it would be prudent for this matter, both the Rule 11 application and the review application, in its entirety to be re-set down for hearing de-novo on 30 November 2022…” Accordingly, I am seized with two applications.

[5] For ease of reference I will refer throughout this judgment to the Department of Social Development Gauteng (being the applicant in the review application and the first respondent in the application to dismiss the review application) as the applicant and WAR obo CM Ramaele (being the first respondent in the review application and the applicant in the application to dismiss the review application) as the first respondent.

[6] In the review application the applicant seeks to review and correct and/or set aside the arbitration award made by the Commissioner at the Public Health and Social Development Social Development Sectorial Bargaining Council (PHSDBC) under case number PSHS489-14/15 dated 27 September 2015 (the award).

[7] In the application to dismiss the first respondent seeks to dismiss the applicant’s review application on the basis that the applicant “…has abandoned its case as it failed to prosecute this matter within a reasonable time and this is contrary to one of the primary objects of the Labour Relations Act (the Act)”.

Papers filed at Court

[8] It is to be noted that the rule 11 application to dismiss the review has been opposed by the applicant and a full set of papers have been filed in respect of this application. However in respect of the review application, only the founding affidavit has been filed and although there was a notice to oppose the review application by the first respondent, the first respondent failed to file and an answering affidavit to the applicant’s review application. The material chronology of the papers that were filed is as follows:

8.1 the applicant launches an application for review application – 24 November 2015;

8.2 PHSDBC files a partial record of the arbitration proceedings being the digital recordings – 27 May 2016;

8.3 applicant brings application that the PHSDBC be ordered to file missing portions of the record – 10 November 2016;

8.4 the applicant files a Notice in terms of Rule 7A (6) being the filing of a further record – 20 January 2017;

8.5 the first respondent launches an application to dismiss the review application - 8 October 2018 and / or 19 June 2018 (there are two identical applications with different dates stamped);

8.6 the first respondent files a notice to oppose the applicant’s application for review – 16 July 2019;

8.7 the applicant launches an application to join the second and third respondent application – 26 August 2019;

8.8 the applicant files its answering affidavit to the first respondent’s application to dismiss the review application – 26 August 2019;

8.9 the first respondent files her replying affidavit in the application to dismiss the review application – 4 September 2019;

8.10 the first respondent files heads of argument in the application to dismiss the review application and/or the review application – 2 October 2019;

8.11 the first respondent files a Notice in terms of Rule 7A(8)(B) in respect of the application to dismiss the review application – 6 November 2019; and

8.12 the first respondent files further heads files a duplicate copy of her heads of argument filed on 2 October 2019 – 13 January 2020.

Background

[9] The first respondent was employed by the Gauteng Department of Education (GDE) during 2012 as a psychologist/mental health therapist

on a fixed term contract. The first respondent’s fixed term contract expired on 30 December 2013. Whilst the first respondent was employed at the GDE and in 2012 she was transferred to the applicant. The first respondent received a transfer letter on the on 10 October 2012.

[10] During the second week of January 2013 the first respondent was informed that she is no longer to report for duty and in February

2013 the first respondent was advised by Mr Maila being the head of the institution with the Department of Social Development Gauteng

(DSD) to no longer report for duty as her fixed term contract with the GDE had expired.

[11] The first respondent then referred an unfair labour practice dispute to the second respondent in terms of section 186(2)(a) of the LRA. The first respondent claimed that she had been unfairly suspended.

[12] On 27 September 2015 an award was issued in the following terms:

“44. Having considered all relevant, reliable and admissible evidence submitted, it is my finding that the Applicant had proven on a balance of probabilities that she was transferred from GDE to DSD and that the conduct of the Respondent by stopping her from coming to constituted an unfair suspension.

45. the Respondent is therefore ordered to lift the Applicant’s suspension, reinstate her on the same terms and conditions of employment that existed immediately prior to the date of her unfair suspension in backpay from 1st January 2014 to the date of her reinstatement. The backpay should be calculated in terms of PERSAL system, at R191106.00 per month which is the previous salary the applicant received.

46. the applicant must report for duty on 19 October 2015 and the respondent is expected in order to accept her into employment.

47. The respondent is ordered to pay the backpay due to the applicant (less applicable statutory deductions, on or before 31 October 2015.

48. no order as to cost is made.”

[13] Dissatisfied with the outcome of the award, the applicant launched a review application on 24 November 2015. The review application has been bought in terms of section 145 of the Labour Relations Act[1] (LRA).

[14] On 24 November 2015 the applicant shortly after launching this review application, the applicant filed a record of the arbitration

proceedings in terms of Rule 7A.

[15] It is common cause that the full record has not been filed and despite efforts by the applicant to compel the second respondent to furnish such records, the record is still incomplete. This is the basis of the application to dismiss the review application.

[16] Most notably vital portions of the evidence from the recordings are missing. Further the representative of the applicant is no longer in the employ of the first respondent and therefore the applicant submits the reconstruction of the record is not possible.

[17] The applicant is seeking that in light of the above conundrum of obstacles to present its review application properly before this court, to remit this matter back to the second respondent for a hearing de novo. The first respondent contends that after more than seven years of this review pending, the application stands to be dismissed.

Evaluation

[18] The elephant in the room is that the applicant’s review application is deemed to be withdrawn in terms of 11.2.3 of the

Practice Manual. The first respondent has not raised this obvious issue and the applicant has failed to bring a revival application.

[19] The relevant clauses of the Practice Manual are 11.2.3 and 16.1 and state:

“11.2.3 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 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 filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file

to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record. (own emphasis); and…

16.1 In spite of any other provision in this manual, the Registrar will archive a file in the following circumstances: in the case of an application in terms of Rule 7 or Rule 7A, when a period of six months has elapsed without any steps taken by the applicant from the date of filing the application, or the date of the last process filed.”

[20] Macaskill v State Information Technology Agency (Pty) Ltd (SITA) and Others[2] is a similar case that dealt with a review application and an application to dismiss the review application. In this case Moshoana

J stated:

“Indeed the issue whether a non-existent review application may be dismissed or not by the Labour Court has since become settled. What lingered in the balance was whether the Labour Court may entertain an application brought in terms of rule 11 of the Rules for the Conduct of Proceedings in the Labour Court (the rules) seeking to have a withdrawn review dismissed on the altar of reaching finality of a labour dispute. Two schools of thought existed over the issue. The one school suggested that despite a deemed withdrawal, this Court, on the strength of the judgment of the Labour Appeal Court in Macsteel Trading Wadeville v Francois van der Merwe N.O and Others, retains jurisdiction to still consider a dismissal of the review application on the basis of a delay in prosecution. The most recent judgment in this regard is that of SG Bulk, A division of Supergroup Africa (Pty) Ltd v Khumalo and another in re Nkuna v NBCRFLI and others. The Court pertinently stated the following:

“[11] …I do not understand Macsteel to be stating that in a lapsed review, the Labour Court still retains jurisdiction. Instead I understand the LAC to be saying once reinstated, a party may still have an opportunity to bring a rule 11 application to have the reinstated review application dismissed on the basis of undue delay. Until an order is issued reinstating a withdrawn or lapsed review, the Labour Court lacks jurisdiction to entertain a rule 11 application.”

[21] Van Niekerk J in Eskom Holdings SOC Ltd v Kgaile[3] reached the following conclusion:

“[9] …The review application is thus deemed to have been withdrawn by the respondent. In the absence of an order reinstating the application, there is no review that serves before the court. For the purpose of the Rule 11 application and the basis on which the dismissal of the review application is sought, there is nothing to dismiss. I agree with counsel for the applicant that in these circumstances, the appropriate order is a declarator to the effect that the review application is deemed to have been withdrawn.”

[22] Having considered the review application and noting that there is no answering affidavit opposing the review application, this Court takes a prima facie view that the applicant possesses reasonable prospects of success on review. However it is with considerable regret that I conclude that once a review application is deemed withdrawn in terms of 11.2.3 of the Practice Manual it cannot be entertained by this court.

[23] I agree with I agree with Van Niekerk J in Randburg Towers (Pty) Ltd v Masilo and others[4] when he concluded:

“[5] …I do not understand the decision of the Labour Appeal Court in Macsteel… to entitle an applicant to file a Rule 11 application regardless of the state of the review application itself. That decision concerned a review application which in terms of the practice manual had been archived and regarded as lapsed. The reference to the opportunity to file a separate Rule 11 application made in paragraph 28 of the judgment must necessarily be understood in that context.”

[24] As stated by Moshoana J in the case of SG Bulk, A Division of Supergroup Africa (Pty) Ltd v Khumalo and Another[5]:

“I understand the LAC to be saying once reinstated, a party may still have an opportunity to bring a rule 11 application to have the reinstated review application dismissed on the basis of undue delay. Until an order is issued reinstating a withdrawn or lapsed review, the Labour Court lacks jurisdiction to entertain a rule 11 application.”

[25] For the above reasons I cannot determine a lapsed review application in the absence of a substantive reinstatement application and an order reinstating the review application. Likewise I cannot determine an application to dismiss a review application as the review application has lapsed and this court lacks jurisdiction.

Order

[26] For all the above reasons, the rule 11 application is bound to be dismissed due to lack of jurisdiction.

[27] In the circumstances, the following order is made:

1. The Rule 11 application to dismiss the review application is dismissed for want of jurisdiction.

2. The review application is deemed to have lapsed and is accordingly struck of the roll.

3. There is no order as to costs.

S. Swartz

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: A Masombuka Instructed by: The State Attorney For the Respondent: V Tshabalala Instructed by: WAR (Trade Union)

[1] No 66 of 1995, as amended.

[2] (JR 267/20) [2021] ZALCJHB 220 at para 1.

[3] (JR 1440/17) [2021] ZALCJHB 8 (19 February 2021) at para 9.

[4] (JR 1758/2016) [2021] ZALCJHB 10 (19 February 2021) at para 5.

[5] (J63/20) [2021] ZALCJHB 416 (13 May 2021) at para 11.