Department of Transport v General Public Service Sector Bargaining Council and Others (PR 02/21) [2023] ZALCPE 7 (2 May 2023)

THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

Case no: PR 02/21

In the matter between:

DEPARTMENT OF TRANSPORT

Applicant

and

GENERAL PUBLIC SERVICE SECTOR

BARGAINING COUNCIL

First Respondent

W BLUNDIN N.O

Second Respondent

G S BROWN

Third Respondent

Heard: 19 April 2023

Delivered: 2 May 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 2 May 2023.

JUDGMENT

PRINSLOO J

Introduction

[1] One of the primary objects of the Labour Relations Act[1] (LRA) is the effective resolution of disputes. The Constitutional Court, in the opening paragraph of Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[2] (Toyota) held that:

‘Time periods in the context of labour disputes 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. The new Labour Relations Act (LRA)

introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious

resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.’

[2] The scheme of the LRA is that, if it creates a right, it also creates processes or procedures for the enforcement of that right, a dispute resolution procedure for disputes about the infringement of that right, specifies the fora in which that right must be enforced and specifies the remedies available for a breach of that right.[3]

Background facts

[3] The Applicant employed the Third Respondent (Respondent) since 2015 and he held the position of Chief Director. During the course of 2019, the Respondent was suspended and several charges of misconduct

were levelled against him. The Respondent was instructed to attend a disciplinary hearing in August 2019, but the disciplinary proceedings only commenced in January 2020. The disciplinary process was concluded in May 2020 and after he was found guilty of misconduct, the Respondent was dismissed.

[4] The Respondent subsequently referred an unfair dismissal dispute to the First Respondent (GPSSBC) and the dispute was arbitrated. On 14 December 2020, the Second Respondent (arbitrator) issued an arbitration award wherein he found that the Respondent’s

dismissal was substantively and procedurally unfair and ordered his retrospective reinstatement with effect from 1 February 2021. The Applicant had to issue a written warning for insolence to the Respondent.

[5] On 18 January 2021, the Applicant filed a review application under case number PR 02/21, seeking the review and setting aside of the said arbitration award.

[6] On 5 February 2021, the Applicant filed an application to stay the enforcement of the arbitration award, pending the finalisation of the review application.

[7] The GPSSBC filed the record with this Court and a Rule 7A(5) notice was issued by the Registrar on 1 June 2021.

[8] The transcribed record of the arbitration proceedings was filed on 26 July 2021. A notice in terms of Rule 7A(8) and a supplementary affidavit were filed on 13 August 2021.

[9] The Respondent filed an answering affidavit in opposition of the review application. The Applicant’s attorney, Mr Mama, stated that the Applicant had sight of the Respondent’s answering affidavit for the first time in December 2021, despite the Respondent’s representative’s claim that it was sent much earlier. This version was not disputed in the Respondent’s answering affidavit.

[10] Rule 7(4)(a) of the Rules of this Court[4] provides that a notice of opposition and an answering affidavit may be delivered by any party opposing an application and in terms of Rule 7(4)(b) it must be delivered within 10 days from the day on which the application is served on the opposing party. The Rules as well as the Practice Manual[5] provide for service and for the proof of service of process on the relevant parties.

[11] In Mbatha v Lyster and others[6] the Labour Appeal Court (LAC) considered the question of whether an application was made on 17 March 1999 when the notice of motion and the annexure thereto were delivered to the registrar of the court or whether it was made when the third respondent received its copy of the papers. The LAC held that the provisions of sub-rule (1) of Rule 7A put the matter beyond question. In terms of this sub-rule, the applicant in a review application is obliged to “deliver a notice of motion to the person or body and to all other affected parties”. It follows, reading Rule 7A together with the effect of the definition of 'deliver' in Rule 1, that an application is made within six weeks of the publication of the award only if it is delivered to all the respondents and filed with the registrar of the Labour Court within such period.

[12] The same principles apply in respect of an answering affidavit, as Rule 7(4) provides for the delivery of an answering affidavit and it follows that the definition of 'deliver' in Rule 1 finds application. Thus an answering affidavit is delivered when it is served on the other parties and filed with the registrar of the Labour Court.

[13] In casu, the Respondent has not filed a service affidavit to show when the answering affidavit was indeed delivered. The only proof of service is a Court stamp, which indicates that it was filed with the registrar of this Court on 6 December 2021. For purposes of this application and absent any proof to the contrary, I accept that the answering affidavit was served on the Applicant in December 2021 and that it was filed with the registrar on 6 December 2021.

[14] According to Rule 7(5), a replying affidavit had to be delivered within 5 days from the day on which the answering affidavit was delivered.

[15] The Applicant’s version is that it had filed a replying affidavit on 9 February 2022. The Applicant’s averment that the replying affidavit was filed late with the indulgence of the Respondent, is not disputed in the answering affidavit.

[16] The Practice Manual provides that where an answering or replying affidavit was filed outside the time period set out in the Rules, there is no need to apply for condonation for the late filing of such affidavits, unless the party upon whom the affidavit is served, files a notice of objection to the late filing of the affidavit. In casu, none of the parties filed a notice of objection and there was thus no need to bring an application for the late filing of the answering and replying affidavits.

[17] The Applicant allegedly served its replying affidavit by way of email on 9 February 2022.

[18] On 6 and 11 July 2022, the Respondent addressed an email to the registrar’s office indicating that the Applicant has failed to prosecute its case within the timeframes stipulated in the Practice Manual and had not complied with clause 11.2.7 of the Practice Manual. On 3 August 2022, the Registrar addressed correspondence to the parties to indicate that the matter has been archived in terms of clause 16 of the Practice Manual.

[19] On 4 August 2022, the Applicant filed an application for the retrieval of the file from the archives.

[20] Before I deal with the merits of this application, it is necessary to set out the principles applicable to review applications in general.

The applicable principles and provisions

[21] The purpose of the LRA is inter alia the effective resolution of labour disputes and the processes introduced by the LRA are intended to bring about the expeditious resolution of labour disputes. The detrimental implications of delays are obvious.[7]

[22] The Court has accepted that a review application is by its nature an urgent application and that it requires prosecution with diligence and urgency.[8] This is supported by the Practice Manual wherein an applicant in a review application is required to ensure that all the necessary papers in the application are filed within twelve months of the date of the launch of the application and where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown as to why it should not be archived.

[23] This Court and the LAC have considered the status of the Practice Manual[9] and held that in essence, the manual promotes uniformity and consistency in practice and procedure and sets guidelines on standards of conduct expected of those who practise and litigate in the Labour Court and it promotes the statutory imperative of expeditious dispute resolution. The provisions of the Practice Manual are binding and should be adhered to and it is not to be adhered to or ignored by parties at their convenience.

[24] The amendments to section 145 of the LRA, which took effect on 1 January 2015, are specifically aimed at expediting the prosecution of review applications and inter alia requires that an applicant in a review must apply for a hearing date within six months of launching the review application. A review application requires urgent prosecution without undue delay.

Filing of the record

[25] Rule 7A(6) of the Labour Court Rules provides that the applicant in a review application must furnish the Registrar and each of the other parties with a copy of the record or a portion of the record, as the case may be. The applicant must make available copies of such portions of the record as may be necessary for the purposes of the review.

[26] The serving and filing of the record in a review application is provided for in clause 11.2 of the Practice Manual. Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days. For the purposes 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.

[27] In casu, the record was filed within the prescribed timeframes.

Clause 11.2.7 and Clause 16 of the Practice Manual

[28] Clause 11.2.7 of the 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 to be archived or be removed from the archive.’

[29] Clause 16 of the Practice Manual provides for archiving of files as follows:

‘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;

· in the case of referrals in terms of Rule 6, when a period of six months has elapsed from the date of delivery of a statement of case without any steps taken by the referring party from the date on which the statement of claim was filed, or the date on which the last process was filed; and

· when a party fails to comply with a direction issued by a judge within the stipulated time limit.

16.2 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.

16.3 Where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed.’

[30] This issue of archiving was considered by the LAC in E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and others[10] (Tradex) where it was confirmed that:

‘[9] The notion of a case being ‘archived’ was invented by the drafters of the Practice Manual as a penalty for dilatoriness and to relieve the burden of carrying dormant cases indefinitely. The consequence of a case being archived is serious. Upon archiving, in terms of clause 11.2.7, a matter is ‘regarded as lapsed, unless good cause is shown why the application should not be archived or be removed from the archive’ (emphasis added). To add to that provision, clause 16.3 states unequivocally that: ‘Where a file has been placed in the archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed’ (emphasis added). Moreover, clause 16.2 is equally unequivocal: ‘A party to a dispute in which the file has been archived may submit an application on affidavit, for the retrieval of the file’. There can be no plausible doubt that once the case is ‘archived’ it requires the intervention of the court to ‘un-archive’

it. There is no room to read into these provisions a role for the registrar to ‘resuscitate’ the case.

[10] The use of the term ‘archived’ is peculiar to the Labour Court Practice Manual. In the general civil courts, for example, the failure to prosecute an appeal timeously results in the appeal having lapsed.[11] The effect of that is that the case shall not be dealt with by a court unless an application to reinstate the appeal is made. It is, in our view, plain that the archiving of a Labour Court case was intended to have the identical effect; indeed, clause 16.3 goes even further, to equate the consequence of an archiving of a case to be understood to mean the application is ‘dismissed’, albeit that a procedure exists to reinstate the case on good cause shown.

[11] It must therefore follow that the archived case acquires a peculiar status which requires the delinquent party to justify why it should be reinstated and thereafter be entertained by a court in the wake of a lack of expeditious prosecution. The Labour Court a quo, treated the ‘archiving’ as an administrative act, not as a matter of status. The significance of this distinction between status and an administrative act is that the acquisition of a peculiar status means that upon a given event, the status

automatically adheres to the case. That status has legal consequences which a mere administrative act by the registrar cannot undo.

[12] On these facts, on 16 January 2021, when the 12-month period since the launch of the application in terms of clause 11.2.7 had expired, automatically the case acquired the status of being archived; ie having lapsed or having been dismissed. The belated attempt to file a replying affidavit is, prima facie, a tacit acknowledgement that not ‘all the necessary papers in the application’ were filed in time. The absence of a document in which ‘the registrar is informed in writing that the application is ready for allocation for hearing’ as required by clause 11.2.7 means that the condition that might have saved the case from the peril of archiving was equally absent.’

[31] In Samuels v Old Mutual Bank (Samuels),[12] the LAC held that:

‘[16] Clause 16.2 does not specifically state that in an application for the retrieval of the file, a party who brings that application must show good cause why the file must be retrieved from the archive. It however states in no uncertain terms that the provisions of Rule 7 will apply in an application brought under the Clause 16.2. Clause 11.2.7 applicable to Rule 7 and 7A applications requires that a party who applies for a file to be removed from the archive must show good cause why the file must be removed from the archive. Furthermore, an applicant who applies for a file that has been archived for failure to comply with an order by a Judge to file a pre-trial minute, to be removed from archives, has to show good cause why such a file should

be removed from the archives. There is therefore no doubt that showing good cause is a requirement for a file to be removed or

retrieved from the archives in terms of Clause 16.2.

[17] In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the Court Rules, timeframes and directives. Showing good cause demands that the application 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 interest of justice to grant the order. It has to be noted that it is not a requirement that the applicant must deal fully with the merits of the dispute to establish reasonable prospects of success. It is sufficient to set out facts which, if established would result in his/her success. In the end, the decision to grant or refuse condonation is a discretion to be exercised by the court hearing the application which must be judiciously exercised.’

Remedies

[32] It is evident from the provisions of the Practice Manual and the applicable authorities that when an applicant is unable to file the record within the prescribed period of 60-days or fails to ensure that all the necessary papers in the application are filed within twelve months of the date of the launch of the application, specific legal consequences would follow. However, an applicant finding him or herself in such a position, is not without a remedy.

[33] In the event that the review application is deemed withdrawn due to the failure to file the record timeously or is being archived and regarded as lapsed, with the same consequences as to the matter having been dismissed, an applicant still has recourse. The LAC made it clear that the effect of lapsing or archiving of a matter is that the case shall not be dealt with by a court unless an application to reinstate or to retrieve the file from the archive has been made.

[34] The LAC confirmed that a procedure exists to reinstate the case on good cause shown. The deemed withdrawn or archived case acquires a peculiar status which requires the delinquent party to justify why it should be reinstated or retrieved from the archive and thereafter be entertained by a court. The deemed withdrawn or archived application must be resuscitated before it can proceed on its merits. This is achieved by the filing of a reinstatement or retrieval application, which is akin to a condonation application and in which the applicant must show good cause.

This application

[35] The Applicant has filed an application for the retrieval of the file from the archives. In its founding affidavit, Mr Mama, the Applicant’s attorney of record and deponent to the affidavit, stated that the Applicant’s replying affidavit was filed by way of email on 9 February 2022. He explained that on 24 June 2022, he was driving to the registrar’s office to file the original copies of the pleadings and as he stood at an intersection, he was robbed at gunpoint of his laptop bag, which contained his laptop, the original pleadings in this and other matters and personal items.

[36] Mr Mama drove to the police station and opened a case. He later called the registrar to report the incident and to seek advice, but he only got through on 1 July 2022 to one of the staff members in the registrar’s office, Ms Mafu. The registrar advised Mr Mama to file an affidavit to explain his unfortunate encounter with armed robbers. Mr Mama explained to the registrar the loss of the original pleadings. When he was informed that the police no longer had a reliable lead which could lead to the return of his items, he indexed the file on 25 July 2022.

[37] In casu, the review application was filed on 18 January 2021, was archived by a letter from the registrar on 3 August 2022 and on 4 August 2022, the Applicant applied for the retrieval of the file from the archives.

Analysis

[38] There are a number of difficulties in the Applicant’s case, which I will deal with in turn.

Section 145(5) of the LRA

[39] Section 145(5) of the LRA provides that an applicant for review must apply for a date for the matter to be heard within 6 months of the delivery of the application, and the Labour Court may, on good cause shown, condone the late application for a date for the matter to be heard.

[40] It is evident that since the filing of the review application in January 2021, the Applicant has not, within six months, applied for a date for the review application to be heard and no application to condone such had been made.

[41] An application for set down was only made at the end of August 2022, more than 19 months after the filing of the review application.

Failure to file all the papers within twelve months

[42] Item 11.2.7 of the Practice Manual expressly states that a review application is by its nature an urgent application and that an applicant in a review application is required to ensure that all the papers in the application are filed within twelve months of the date of launching the application.

[43] 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 to be archived or be removed from the archive.

[44] In Tradex, the LAC confirmed that when the twelve month period since the launch of the application in terms of clause 11.2.7 had expired, automatically the case acquired the status of being archived; i.e. having lapsed or having been dismissed. It requires no administrative act from the registrar, but the acquisition of the status of being archived means that upon a given event, the status automatically adheres to the case. That status has legal consequences.

[45] In casu, the review application was filed on 18 January 2021 and the twelve month period since the launch of the application in terms of clause 11.2.7 had expired on 17 January 2021, whereupon automatically the case acquired the status of being archived. The archiving was automatic and not effected or triggered by the registrar’s letter of 3 August 2022.

[46] The Applicant’s belated attempt to file a replying affidavit on 9 February 2021 is indicative of the fact that the Applicant had failed to ensure that all the necessary papers in its review application were filed within twelve months of the date of the launch of the review application.

[47] The registrar has also not been informed in writing that the application was ready for allocation for hearing within twelve months. An application for set down was only made at the end of August 2022. The application has been archived and an application in terms of Clause 16.2, for the retrieval of the file from the archives, is necessary.

[48] In Samuels, the LAC held that an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the Court’s Rules, timeframes and directives. Showing good cause demands that the application be bona fide, that the applicant provides a reasonable explanation which covers the entire period of the default, shows that there are reasonable prospects of success in the main application, and that it is in the interest of justice to grant the order.

[49] The relevant legal principles to be applied in an application for condonation are well established and will be applicable in an application such as the present one.

[50] This Court has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence, it is a matter of fairness to both sides.[13]

[51] In Melane v Santam Insurance Co Ltd,[14] it was held that:

‘…. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach

incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting

condonation… What is needed is an objective conspectus of all the facts.’

[52] In this, Court however, the principles have long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial. The courts have held and emphasised that an

applicant must necessarily act with the degree of diligence required by the Rules of this Court and the Practice Manual, thus giving

effect to the statutory imperative of expeditious dispute resolution.

[53] This Court has conventionally applied the approach that in the absence of a satisfactory explanation for a delay, the applicant’s

prospects of success are ordinarily irrelevant.[15] This principle was confirmed in National Education Health and Allied Workers Union on behalf of Mofokeng and others v Charlotte Theron Children’s Home[16] where the LAC held that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial.

[54] In Colett v Commission for Conciliation, Mediation and Arbitration and others,[17] the LAC confirmed that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

[55] The onus is on the applicant seeking condonation to satisfy the court that condonation should be granted. In employment disputes, there is an additional consideration which applies in determining whether the onus has been discharged, as was held in National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) and others[18]:

‘There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental

principle, confirmed that all employment law disputes must be expeditiously dealt with and any determination of the issue of good

cause must always be conducted against the back drop of this fundamental principle in employment law.’

[56] The fundamental requirement of expedition is not to be ignored. In Toyota,[19] the Constitutional Court emphasised that one of the fundamental purposes of the LRA was to establish a system for the quick adjudication of labour disputes. When it assesses the reasonableness of a delay, the court must not lose sight of this purpose.

[57] In summary: the Courts have endorsed the principle that where there is a delay with no reasonable, satisfactory and acceptable explanation for the delay, condonation may be refused without considering prospects of success and to grant condonation where the delay is not explained, may not serve the interests of justice. The expeditious resolution of labour disputes is a fundamental consideration.

[58] Condonation for delays in all labour law litigation is not simply there for the taking. The starting point is that an applicant in an application such as the present, seeks an indulgence and bears the onus to show good cause and a proper case should be made out before the indulgence could be granted.

[59] It is in this context that this application for retrieval stands to be determined.

The degree of lateness and the explanation tendered

[60] The first issue to be considered is the degree of lateness.

[61] In the application filed by the Applicant for the retrieval of the file from the archives, the reason for the late filing of the replying affidavit is explained. As the Applicant seeks an indulgence from the court and bears the onus to satisfy the Court that condonation should be granted, it is incumbent to provide a full explanation for every period of the delay. It is not sufficient simply to list significant events that occurred during the period in question as that does not assist the Court properly to assess the reasonableness of the explanation.[20]

[62] Mr Mama explained that he had served the Applicant’s replying affidavit on 9 February 2022, after the Respondent’s answering affidavit was received in December 2021. It is not explained why it took Mr Mama from around 6 December 2021 until 9 February 2022 to file a replying affidavit, more so when the replying affidavit comprises a mere seven sentences, barely covering a page and a half. The replying affidavit certainly did not take much, if any, effort (or time) to prepare and it is unimaginable that it could have taken two months to prepare such a short affidavit.

[63] The replying affidavit was allegedly served by way of email on 9 February 2022 and only on 24 June 2022 did Mr Mama make an attempt to file the original affidavit at Court. Unfortunately, he was robbed at gunpoint and the bag that contained the original affidavit, was taken and there was no reliable lead which could result in the return of Mr Mama’s stolen items. He indexed the Court file on 25 July 2022.

[64] The Directive from the Judge President in respect of service by email[21] provides for email service of court process on parties by each other, subject to specific conditions. The said directive provides that notwithstanding that court process may be served on parties by way of email, parties must still file the original hard copies of any court process forwarded by email on the registrar.

[65] Having regard to the definition of 'deliver' in Rule 1, court process is delivered when it is served on the other parties and filed with the registrar of the Labour Court. The aforesaid directive allows for service by way of email, but still requires the filing of original hard copies on the registrar. This means that the replying affidavit was not filed with the registrar when it was served by way of email on 9 February 2022. At best, it was served on the respondents, but not filed with the registrar and thus the replying affidavit was not properly delivered on 9 February 2022.

[66] There is no explanation whatsoever tendered for the period between 9 February 2022 and 24 June 2022 and this Court is in no position to understand why it took more than four months to file the replying affidavit with the registrar. The effect of this is that the papers in the review application were only filed in July 2022, more than 18 months after the review application was launched and a request for the matter to be set down was made at the end of August 2022, another month later.

[67] The service by email is not compliant with the directive of 5 January 2022, as the Applicant has not filed a service affidavit as required, nor filed the documents with the registrar of this Court. This Court is not provided with any proof to show when, and if at all, and to whom the replying affidavit was served.

[68] The delay is no doubt material, given the context within which labour litigation takes place and the system that is designed to ensure the effective and expeditious resolution of labour disputes.

[69] A material period of the delay remained completely unexplained, whilst it was incumbent on the Applicant to provide a full explanation for every period of the delay. This Court is not placed in a position to properly understand the reasons for the delay and the in-action for a period of more than

four months.

[70] The Applicant submitted that the non-filing of the original pleadings “is not a product of a failure of the applicant but an unavoidable misfortune suffered by its representative”. Mr Mama’s misfortune occurred on 24 June 2022 and the incident of 24 June 2022 does not explain Mr Mama’s inaction and failure to file the papers since 9 February 2022. The non-filing and the non-compliance with the prescribed timeframes are indeed the fruits of the Applicant’s representative’s failure to comply with the timeframes and to act timeously and expeditiously, instead of leisurely and at his own pace.

Prospects of success

[71] Having found that the delay in prosecuting this matter is material and the explanation tendered inadequate, it leaves the issue of prospects of success.

[72] I already alluded to the fact that the courts have endorsed the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial.

[73] This was also confirmed in Grootboom v National Prosecuting Authority and another[22] where the Constitutional Court has held that:

‘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.’

[74] In view of my finding that the delay is material and the explanation tendered not satisfactory, the Applicant’s prospects of success are immaterial and thus need not be considered. However, even if this Court were to adopt a lenient approach and consider the Applicant’s prospects of success, it would not have been adequate to convince this Court that the relief sought should indeed be granted. It is necessary to say something about the Applicant’s prospects of success and the way it had been addressed in this application.

[75] The Applicant, in addressing the issue of prospects of success, submitted, with reference to the stay application brought in February 2022, that “the founding affidavit, amplified by the affidavit in support of the application to stay the operation of the award, is replete with averments, not materially disputed by the third respondent in its answering affidavit, which demonstrate, compellingly, the applicant’s prospects of success in the main application”. Furthermore, that the Court would not have “seen its way clear in granting a stay of operation of the award, as it did, if the prospects of success, in the main application, were poor”.

[76] The Applicant’s case is that the stay of execution “cannot be granted if the prospects of success, in the main application, are poor or not established”. Effectively, the Applicant submits that because an order was issued to stay the operation of the arbitration award, it shows that the Applicant’s prospects of success are good and established. This is a misguided and ill-advised argument, for the following reasons.

[77] Firstly, when a review application is pending, this Court is inclined to stay the enforcement of the arbitration award, pending the finalization of the review application. The reasons to grant such interim relief are sound and obvious – for instance, where execution is permitted to proceed in the face of a pending review application, it may render the review application academic and the relief sought moot.

[78] Secondly, when an order to stay the execution or operation of an arbitration award is filed, the court considering whether the relief should be granted, considers whether the requirements for an interim interdict have been met, as the relief is sought is interim and pending the finalization of a review application. If those requirements are met, the relief would in all probability be granted.

[79] The requirements for interim relief were set out more than a hundred years ago in Setlogelo v Setlogelo[23] as:

1. A prima facie right.

2. A well granted apprehension of irreparable harm, if interim relief is not granted and the ultimate relief is eventually granted.

3. The balance of convenience in favour of the granting of the interim relief.

4. The absence of any other adequate ordinary remedy.

[80] The applicant in an application for interim relief does not have to show that he/she has prospects of success in the main application, but must rather show that the requirements for interim relief have been met.

[81] When an interim order to stay the enforcement of an arbitration award pending the finalization of a review application has been granted, it would have been granted because the applicant could show that the requirements for an interim interdict have been met and not because the presiding judge was satisfied that the main application has prospects of success.

[82] The mere fact that an interim order was granted is not indicative that the main application has merits, as the merit of the main application is not a factor to be considered. The Applicant cannot rely on the fact that an interim order was granted to support its case that it is indicative of good or established prospects of success. The Applicant had to tell this Court what its prospects of success are, which the Applicant dismally failed to do and it was not sufficient to merely refer to another application for an interim order, in which the prospects of success of the review application were neither considered nor decided.

Prejudice and the interest of justice

[83] The Applicant stated that the Respondent will not be unduly prejudiced if the relief it seeks is granted. That is so because the Respondent is currently gainfully employed, has enjoyed the indulgence to file his answering affidavit ‘way after the permitted timeframes’, he has not opposed the application to stay the execution of the arbitration award and thereby had reconciled himself with the fact that the review application would run its course.

[84] In my view, the aforesaid submissions are misplaced. The fact that the Respondent was granted an indulgence to file his answering affidavit outside of the prescribed timeframes, is something Mr Mama agreed to and the answering affidavit that was filed on 6 December 2021, was filed well within time for the Applicant to file a replying affidavit before 17 January 2022 and ensure that all the papers in the review application were filed within 12 months. The fact that the Respondent had not opposed the stay application, is irrelevant, as it was granted on an interim basis and had no bearing on the merits of the review application. It might be so that at the time (February 2021) the Respondent had reconciled himself with the fact that the review application would run its course, but it is clear from his correspondence to the registrar in July 2022 that he was not accepting the delay in the finalisation of the review application. The course a review application has to run, is clearly set out in the Rules and the Practice Manual and that course is a speedy and expeditious one.

[85] The Respondent disputed that he is gainfully employed and stated that he currently receives a stipend which is way below his salary, that he is unable to get employment in the public service based on his dismissal and as that is reflected on persal, any prospective employer is also discouraged. The reality is that the Respondent was reinstated retrospectively with effect from 1 February 2021 and more than two years later, he is still not reinstated, nor is the review application challenging his reinstatement close to finalisation.

[86] Whether the Respondent is gainfully employed or not, is not an issue for this Court to decide and if he were to be reinstated, the monies he had received in the interim, will be considered for purposes of any claim he may have in respect of arrear wages.

[87] In Kubeka and others v Ni-Da Transport (Pty) Ltd[24] (Kubeka), the LAC considered a claim for arrear wages or backpay, consequent upon an order for reinstatement. The LAC held that the key issue to be decided was whether the employees’ claim for backpay depended on the restoration of the contracts of employment and when the contracts of employment were restored, if at all. The claim for arrear wages is one separate from the order to reinstate and will be dealt with in accordance with the principles

set out in Kubeka. It is not an issue for this Court to decide. What is however evident, is that, pending the review, the Respondent cannot be reinstated and cannot obtain a job in the public service and that he is earning far below what he is entitled to earn in the position he was reinstated to.

[88] The Applicant submitted that a refusal of the relief sought would be a fatal blow to the review application, which the Applicant never intended to abandon. The Applicant has a statutory right to review an unreasonable arbitration award and should not be deprived of that right at the altar of Mr Mama’s unforeseeable misfortune. This application goes to the heart of discipline and good governance and the Applicant’s right to review should be preserved.

[89] I accept that the Applicant has the right to review an arbitration award and to file such an application with this Court for adjudication, but that right is not without the responsibility to do so within the confines of the law, the Rules and the Practice Manual and to ensure that the matter is pursued diligently and expeditiously. The refusal to retrieve the review application from the archive will have the result that the Applicant will be denied the opportunity to pursue its case before Court.

[90] The Respondent was dismissed in May 2020, almost three years ago, and this application challenging the outcome of an arbitration award that was issued on 14 December 2020, is still not closer to finality. The Applicant dragged its feet to finalise this application expeditiously, more so where the Practice Manual provides that a review application is regarded as an urgent application.

[91] The applicable timeframes were not complied with and the Applicant made no convincing attempt to explain the non-compliance with the said timeframes. I already alluded to the period between 9 February 2022 and 24 June 2022, for which Mr Mama provided no explanation. Material periods are not explained at all and this Court is not placed in a position to properly understand the reasons for the delay and the non-compliance with the prescribed timeframes.

[92] The arbitration award was issued more than two years ago and evidently, the review application has long outlived the urgency underpinning a review application.

[93] In my view, the prejudice that the Respondent may suffer if the relief sought is granted, outweighs the prejudice the Applicant has alleged before this Court.

[94] This Court has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence, it is a matter of fairness to both sides. While the refusal to reinstate the review application will have the result that the Applicant will be denied the opportunity to pursue his case before this Court, the Respondent’s prejudice outweighs the Applicant’s prejudice.

[95] The Applicant has not pursued this matter diligently in circumstances where a review application is to be treated as an urgent application and where a date for adjudication has to be applied for within six months after filing of the review application.

[96] I have to endorse the aim of the LRA namely to resolve labour disputes speedily and without delay. Granting the relief sought in a case like this would not be in the interest of justice as it would undermine the statutory purpose of expeditious dispute resolution, another factor that weighs heavily in the Respondent’s favour.

[97] On an objective conspectus of all the facts, the Applicant’s application for retrieval falls hopelessly short of the mark. The Applicant did not discharge the onus to show good cause and to provide an acceptable and plausible explanation for a material delay.

[98] The notion that litigants will be denied access to a court to ventilate their case cannot be examined within a paradigm that ignores the interests of the adversary, nor of the ordinary dynamics of litigation, more especially, because the reality is that litigation is a process in which adversaries make choices. If the consequences of choices that are made, or the consequences of inaction and tardiness are that opportunities to pursue the matter are forfeited, it does follow that there is a failure of justice. The litigation system affords litigants a process within which they must navigate their own routes and it is no failure of justice if their journey culminates in a dead end.[25]

[99] This application is a sad example of the detrimental and devastating consequences that follow when labour disputes are not pursued and resolved expeditiously.

Costs

[100] In so far as costs are concerned, this Court has a broad discretion in terms of the provisions of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness.

[101] The Respondent was represented by Mr Elefu from Nehawu. A trade union is not permitted to charge fees, unlike legal practitioners, and as such, it would serve no purpose to make a cost order in favour of the Respondent.

[102] In the premises, I make the following order:

Order

1. The application for retrieval is dismissed;

2. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Mama from Java Mama Attorneys For the Third Respondent: Mr E B Elefu from NEHAWU

[1] Act 66 of 1995, as amended.

[2] (2016) 37 ILJ 313 (CC) at para 1.

[3] Steenkamp and others v Edcon Limited 2016 (3) BCLR 311 (CC) at para 130.

[4] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[5] Practice Manual of the Labour Court of South Africa, effective 1 April 2013.

[6] (2001) 22 ILJ 405 (LAC).

[7] Commercial Workers Union of SA v Tao Ying Metal Industries and others (2008) 29 ILJ 2461 (CC), where the Constitutional Court held at para 63 that: “These disputes, by their very nature, require speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years”.

[8] Lehola v Nkadimeng N.O and others unreported judgment under case no JR 1912/2012 delivered 25 January 2016.

[9] Ralo v Transnet Port Terminals and others [2015] 12 BLLR 1239 (LC) (Ralo); Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and others (2014) 35 ILJ 1672 (LC); Samuels v Old Mutual Bank [2017] 7 BLLR 681 (LAC) (Samuels).

[10] (2022) 43 ILJ 2727 (LAC) at paras 9 – 12.

[11] Rule 49(6)(a) and (b) of the Uniform Rules of Court.

[12] Samuels supra at paras 16 – 17.

[13] D Harms, ‘Civil Procedure in the Superior Court’, (LexisNexis South Africa) at B27.6.

[14] 1962 (4) SA 531 (A) at 532 C - F.

[15] See NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).

[16] (2004) 25 ILJ 2195 (LAC) at para 23.

[17] [2014] 6 BLLR 523 (LAC).

[18] (2015) 36 ILJ 232 (LC) at para 25.

[19] Toyota supra.

[20] See Independent Municipal & Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and others (2010) 31 ILJ 1413 (LC).

[21] LC02/2022, dated 5 January 2022:

[22] (2014) 35 ILJ 121 (CC) at para 51.

[23] 1914 AD 221 at 227.

[24] (2021) 42 ILJ 499 (LAC).

[25] Edcon Ltd v Steenkamp and others (2018) 39 ILJ 531 (LAC) at para 34.