Dzuni Properties (Pty) t/a Wimpy Songozwi v SACCAWU obo Maimela and Others (JR 591-18) [2023] ZALCJHB 115 (26 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JR 591-18

Not Reportable

In the matter between:

DZUNI PROPERTIES (PTY) T/A WIMPY SONGOZWI Applicants And SACCAWU O.B.O CONSTANCE MAIMELA First Respondent THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent COMMISSIONER C.A MANNDE Third Respondent

Heard: 30 June 2022

Delivered: 26 April 2023

Summary: Application in terms of Rule 11 – seeking to dismiss a review application – Whether an application to dismiss a review application can be heard if the review application is deemed withdrawn and archivable by the registrar in terms of the provisions of the Practice Manual.

JUDGMENT

LEPPAN, AJ

Introduction

[1] This is an application to dismiss the review application launched under the abovementioned case number. For the sake of convenience, in this application to dismiss (rule 11 application), the parties will be referred to as cited in the review application launched on 3 May 2018. The First Respondent (Maimela) seeks to have the review application launched by the Applicant (Wimpy) dismissed on account of lack of timeous prosecution.

[2] Maimela further seeks that the arbitration award issued by the third respondent (commissioner) on 20 March 2018, under case number LP5169-17 (Award) be made an order of this Court.

[3] This matter initially came before this Court as a review application in terms of rule 7A of the Rules for the Conduct of Proceedings in the Labour Court[1] (Rules). On 27 November 2018, Maimela instituted an application to dismiss the review application in terms of rule 11 of the Rules, due to the lack of prosecution of the review application by Wimpy. This rule 11 application was initially unopposed. However, on 28 May 2019, the matter became opposed, and the matter was accordingly moved to the opposed roll.

[4] It is important to mention that Wimpy, despite opposing the matter and being served a notice of set down, did not appear in Court on the date of the hearing, leading this Court to hear the matter in its absentia.

[5] Given the age-old legal question addressed in this judgment (being timeous prosecution of review applications), it is not necessary to detail the facts appertaining the matter before me. However, for the purposes of context, I shall do so briefly below.

Relevant Background Facts

[6] Maimela was employed by Wimpy since 2007 as a general worker and she was earning a monthly salary of R2 920.00. Wimpy alleged that Maimela committed misconduct while she was in its employ. Maimela was charged with the following:

‘1. Fight or assault [sic] fellow employee or attempt to do so. And/or

2. Commit any act or be guilty of any omission which undermines the industrial peace, growth and stability of the Company or the maintenance or the promotion of sound employee/management relationship.’

[7] Maimela was dismissed on 7 July 2017 for the alleged misconduct referred to above. Aggrieved by her dismissal, she referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). The commissioner held that Wimpy failed to prove that Maimela's dismissal was both procedural and substantively fair.

[8] The commissioner ordered that Maimela be reinstated and further ordered that Wimpy pay Maimela backpay in the amount of R 26 285.05, this was equivalent to nine months' salary ranging from 7 July 2017 to 7 April 2018.

[9] This application to dismiss the review application is brought by the following circumstances:

9.1 On 3 May 2018, Wimpy instituted a review application in accordance with section 145 of the Labour Relations Act[2] (LRA). On 11 May 2018, Maimela, desperate to get relief as ordered by the commissioner, filed an application to enforce the Award.

Thereafter, on 16 May 2018, Maimela filed a notice of intention to oppose the review application and abandoned the application to enforce the Award.

9.2 On 27 November 2018, after six months of no active steps being taken by Wimpy to prosecute the review application, Maimela instituted an application to dismiss the review application.

9.3 It is important to mention that by 16 May 2019, the record of the CCMA proceedings had still not been filed by Wimpy, despite it being made available by the Registrar for a considerable period of time.

9.4 Wimpy admits in its answering affidavit that the record was ready for transcription in February 2019, however, they only arranged for the transcriber to transcribe same three months later, on 16 May 2019. The transcriber finished the transcribing of the record on or about 7 June 2019.

9.5 It is not clear from the papers when the record was finally served on Maimela and filed in this Court. However, what is clear is that the Applicant's supplementary affidavit was filed four months later on 10 October 2019.

[10] It is apparent that there has been a blatant disregard for the Rules by Wimpy, at the prejudice and expense of Maimela. This is further explored below.

Main Issues for this Court's determination

[11] The issues for determination are as follows:

11.1 Whether the matter is deemed withdrawn due to the late filing of the record;

11.2 Whether Wimpy's review application should be dismissed due to the lack of timeous prosecution; and

11.3 The relief to be granted to Maimela.

The deemed withdrawal of review applications

[12] In accordance with the maxim vigilantibus non dormientibus jura subveniunt, an applicant is expected to take the necessary steps with reasonable expedition to bring the matter before Court. If an applicant causes a delay in expediting the hearing of the matter, such applicant acts contrary to one of the primary objects of the LRA, namely the speedy resolution of disputes.

[13] Rule 7A (6) of the Rules requires that an applicant in a review application must furnish the Registrar and each of the other parties with a copy of the record or a portion thereof, 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 application.

[14] The service and filing of the record in a review application is dealt with in the Practice Manual[3]. Clauses 11.2.1 and 11.2.2 thereof provide the time frames within which the record should be delivered. Furthermore, clause 11.2.3 of the Practice Manual sets out the steps to be followed and the consequences should an applicant fail to file the transcribed record within the prescribed period.

[15] The Labour Court has considered the status of the Practice Manual and has held that it promotes uniformity and consistency in practice and procedure and sets out guidelines on the standard of conduct expected of litigants and it further promotes the statutory imperative of expeditious dispute resolution. The provisions of the Practice Manual are binding and must be adhered to, and they are not to be ignored by the parties at their convenience.[4]

[16] Snyman AJ, in the matter of Matsha and others v Public Health and Social Development Sectoral Bargaining Council and others,[5] confirmed the following when confronted with a review application tarnished by excessive delays by an applicant:

‘In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & others [6] the Court expressed the following sentiment:

“Excessive delays in litigation may induce a reasonable belief, especially on the part of a successful litigant, that the order or award had become unassailable. This is so all the more in labour disputes”.’

[17] As mentioned above, the review application was filed on 3 May 2018 and the record was only ready to be transcribed in February 2019, however, due to Wimpy's delay, which includes inter alia not timeously paying the transcriber, the record was only ready on 7 June 2019. Wimpy did not show good cause why the late filing of the record should be condoned.

[18] I am of the view that Wimpy had a total disregard for the provisions of the Practice Manual and that its review application is deemed to be withdrawn. However, in the interest of justice, I support the view adopted by Tlhotlhalemaje J in Mthembu v Commission for Conciliation, Mediation and Arbitration and others,[7] that there is nothing that prevents this Court from considering and dismissing a review application in the face of a rule 11 application,

even in circumstances where that application was deemed withdrawn.

[19] The above view is held in light of the judgment of the Labour Appeal Court in Macsteel Trading Wadeville v van der Merwe N.O and others,[8] which emphasizes that rule 11(4) allows a reviewing court, in the exercise of its powers and the performance of its functions, or any incidental matter, to act in a manner it considers expedient in the circumstances to achieve the objects of the LRA. This provision gives this Court a wide discretion to take any course of action to achieve the objects of the LRA.

[20] I am also aware of judgments of this Court that have held that a review application that is deemed withdrawn is not properly before the Court and the Court cannot dismiss a non-existent application or a withdrawn application.[9] However, I acknowledge and accept the view adopted by Mkwibiso AJ in NUMSA obo Mavuso v Mini Mega (Pty) Ltd[10] that the clauses of the Practice Manual are not to be rigidly applied because Clause 1.2 of the Practice manual expressly states that

“‘[b]y their nature, the provisions of the manual call for flexibility in their application where this is required to promote their purpose". Furthermore, clause 2.2 of the Practice Manual provides that "this manual is not intended to limit judicial discretion’.”[11]

[21] To this end, I am of the view that I am not bound to accept a deemed withdrawal simply because the deeming provision emanates from the Practice Manual. This would not be in line with the purpose of the speedy resolution of disputes espoused by the Practice Manual, especially in this instance where the Award was issued on 20 March 2018.

Dismissal of the Review Application

[22] Clause 16.1 and 16.3 of the Practice Manual states the following:

‘16.1 …the Registrar will archive a matter …

· …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…

…

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.’ [Own emphasis]

[23] It is trite that Wimpy took no steps to prosecute the review after instituting the proceedings for a period of six months. Wimpy did not even appear at the hearing to explain the entire period of the delay.

[24] The fact that Wimpy's review application was deemed withdrawn does not imply that Maimela is precluded from taking steps to bring it to finality. Maimela is entitled to continue with her affairs, without having to wonder when Wimpy will take any steps in prosecuting the review application and bringing the matter to finality.

[25] It is worth mentioning that Maimela is a vulnerable employee, as she was earning R 2 920.45 per month at the time of her dismissal.

Furthermore, her length of service was a considerable period of about 10 years. Considering the hardships that are faced by many unemployed persons in this country, this Court cannot be sympathetic to litigants who sit on their rights to pursue matters before it. The facts and circumstances of this case fortify my conclusions as above.

[26] This matter warrants the exercise of the Court’s discretion in favour of not allowing the deemed withdrawal and archiving of the review application, in the interests of the flexibility envisaged by the Practice Manual itself and the speedy resolution of this matter.

[27] The application to dismiss is thus properly before me and I am entitled to dismiss the review application due to an undue delay. In any event, to the extent that the archiving provisions of the Practice Manual mean the review application is dismissed, Wimpy

cannot complain when an order is made confirming the Award and the unfair dismissal.

Enforcement of the Award

[28] This Court is empowered in terms of section 158(1)(c) of the LRA to make the Award an order of this Court.

[29] Taking into consideration the fact that Maimela was dismissed on 7 July 2017, it would not be just for this Court to kick the can down the road when dealing with the enforcement of the Award.

[30] The dismissal of the review application, whether due to the lack of timeous prosecution or through archiving, means there is nothing in the way of making the Award an order of Court for the purposes of its enforcement. The requirements for making an award an order of Court are that the award must have been validly issued and that the award must be enforceable.[12] There is thus no pleading or suggestion by Wimpy that the Award was not validly issued and there is no suggestion by Wimpy that the award is not enforceable.

Costs

[31] Regarding the issue of costs, this Court has a wide discretion. Taking into consideration the vulnerable status of Maimela; Wimpy's disregard of this Court's rules; and Wimpy not appearing on the hearing date, this matter warrants an adverse cost order against Wimpy. The fact that Wimpy sat on its hands and failed to implement the binding award in favour of the employee is frowned upon by this Court. I re-emphasize that this conduct is not in line with the principle of the speedy resolution of labour disputes, as set out in the LRA.

[32] Delays in the resolution of labour disputes undermine the primary objects of the LRA, especially for employees without an income.

[33] The whole system of the administration of justice in our country will collapse if litigation is intentionally delayed, especially since our country is facing labour and employment challenges while our Courts are already under-resourced and under pressure.

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

Order

1 . Wimpy's review application is dismissed.

2. The Award under case number LP5169-17, issued under the auspices of the Second Respondent on 20 March 2018, is made an order of court.

3. Wimpy is ordered to reinstate Ms Constance Maimela and pay her the remuneration which she would have been entitled to for the period between 7 July 2017 to the date of reinstatement, together with interest thereon, at the prescribed rate calculated from 7 July 2017 to date of payment.

4. Wimpy is to pay the costs of the review application and the rule 11 application.

Leppan AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: No Appearance For the Respondent: SACCAWU Official, Leatha Marakalala

[1] GN 1665 of 14 October 1996.

[2] Act 66 of 1995, as amended.

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

[4] See: Sol Plaatjie Local Municipality v South African Local Government Bargaining Council and other unreported judgment case no: PR192/15 delivered on 13 June 2017.

[5] (2019) 40 ILJ 2565 at para 1.

[6] (2016) 37 ILJ 313 (CC) at para 45.

[7] (2020) 41 ILJ 1168 (LC) at para 18.

[8] (2019) 40 ILJ 798 (LAC).

[9] See: Savuka Mine (AngloGold Ashanti) v Mazozo and others [2019] JOL 41783 (LC) per Moshoana J; Eskom Holdings SOC Ltd v Kgaile [2021] JOL 49826 (LC) per Van Niekerk J; GIWUSA obo Dlamini v Sekhabisa NO and Others [2021] JOL 52026 (LC) per Mahosi J; Mjoli and Others v Peter Papers (Pty) Ltd and Others unreported judgment case no: JR1797/17 per Mabaso AJ; Jele v Illovo Sugar South Africa (Pty) Ltd and Others [2021] JOL 53846 (LC) per Maeso AJ.

[10] Unreported judgment case no: JR1288/13 delivered on 4 July 2022.

[11] Ibid at para 19.

[12] Mzulwini v Federal Cleaning and Others (2000) 21 ILJ 1382 (LC) at para 5.